NATIONAL ELECTRICITY (SOUTH AUSTRALIA) (NEW NATIONAL ELECTRICITY LAW) AMENDMENT BILL 2005

Part 2—Amendment of National Electricity (South Australia) Act 1996

Preamble—delete the Preamble

6—Amendment of section 8—Interpretation of some expressions in National Electricity (South Australia) Law and National Electricity (South Australia) Regulations

Section 8—after its present contents (now to be designated as subsection (1)) insert:

(2) The Acts Interpretation Act 1915 does not apply to the National Electricity (South Australia) Law or the National Electricity (South Australia) Regulations.

7—Repeal of Part 3

Part 3—delete the Part

8—Amendment of heading to Part 4

Heading to Part 4—delete "Power to make regulations" and substitute:

Making of regulations and rules

9—Amendment of section 11—General regulation-making power for National Electricity Law

Section 11(1), (2), (3) and (4)—delete subsections (1), (2), (3) and (4) and substitute:

(1) The Governor may make such regulations as are contemplated by, or necessary or expedient for the purposes of, the National Electricity Law.

(2) Regulations under this Part may—

(a) be of general or limited application;

(b) vary according to the persons, times, places or circumstances to which they are expressed to apply.

(3) Regulations under this Part may be made only on the unanimous recommendation of the Ministers of the participating jurisdictions.

10—Substitution of sections 12 and 13

Sections 12 and 13—delete the sections and substitute:

12—Specific regulation-making power

(1) Without limiting the generality of section 11, the regulations may deal with matters of a transitional nature relating to the transition from the application of provisions of the old National Electricity Law to the application of provisions of the new National Electricity Law.

(2) Any provision of the regulations that deals with a matter of a transitional nature under subsection (1) may be expressed to take effect from a time that is earlier than the beginning of the day on which the regulations containing the provision are made, not being a time earlier than the commencement of this subsection.

(3) If a provision of a regulation is expressed to take effect from a time that is earlier than the beginning of the day on which the regulations containing the provision are made, the provision must also provide that the provision does not operate so as—

(a) to prejudicially affect the rights of a person (other than a participating jurisdiction or NECA, NEMMCO, the AEMC or the AER) existing before the date of making of those regulations; or

(b) to impose liabilities on any person (other than a participating jurisdiction or NECA, NEMMCO, the AEMC or the AER) in respect of anything done or omitted to be done before the date of making of those regulations.

(4) In this section—

matters of a transitional nature includes matters of an application or savings nature;

NECA means National Electricity Code Administrator Limited ACN 073 942 775;

new National Electricity Law means the National Electricity Law set out in the Schedule to this Act as in force from time to time after the commencement of this subsection, or the Rules as in force from time to time after the commencement of this subsection;

old National Electricity Law means the National Electricity Law set out in the Schedule to this Act as in force from time to time before the commencement of this subsection, or the Code as defined by that Law and in force from time to time before the commencement of this subsection.

13—Making of rules

The Subordinate Legislation Act 1978 does not apply to Rules made under the National Electricity Law.

11—Amendment of section 14—Freedom of information

(1) Section 14(a)—delete paragraph (a)

(2) Section 14(c)—delete paragraph (c) and substitute:

12—Substitution of Schedule

Schedule—delete the Schedule and substitute:

Schedule—National Electricity Law

Part 1—Preliminary

1—Citation

This Law may be referred to as the National Electricity Law.

2—Definitions

In this Law—

AEMC initiated Rule means a Rule of the kind referred to in section 91(2);

AER economic regulatory function or power means a function or power performed or exercised by the AER under this Law or the Rules that relates to the economic regulation of services provided by a regulated transmission system operator by means of, or in connection with, a transmission system and includes a function or power performed or exercised by the AER under the Rules that relates to the making of a transmission determination;

Australian Energy Market Commission or AEMC means the Australian Energy Market Commission established by section 5 of the Australian Energy Market Commission Establishment Act 2004 of South Australia;

Australian Energy Regulator or AER means the Australian Energy Regulator established by section 44AE of the Trade Practices Act 1974 of the Commonwealth;

Court means—

(a) where this Law applies as a law of the Commonwealth, the Federal Court;

(b) where this Law applies as a law of a participating jurisdiction that is a State or a Territory, the Supreme Court of that jurisdiction;

derogation means a jurisdictional derogation or participant derogation;

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

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

(a) the generation of electricity;

(b) services provided by means of, or in connection with, a transmission system or distribution system;

Federal Court means the Federal Court of Australia;

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

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

jurisdictional derogation means a Rule made at the request of a Minister of a participating jurisdiction that—

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

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

jurisdictional electricity legislation means any legislation of a participating jurisdiction (other than national electricity legislation), or any instrument made or issued under or for the purposes of that legislation, that regulates the electricity industry operating in that jurisdiction;

jurisdictional regulator means—

(a) if this Law is applied as a law of the State of New South Wales, the Independent Pricing and Regulatory Tribunal of New South Wales established by section 5(1) of the Independent Pricing and Regulatory Tribunal Act 1992 of New South Wales;

(b) if this Law is applied as a law of the State of Victoria, the Essential Services Commission established by section 7(1) of the Essential Services Commission Act 2001 of Victoria;

(c) if this Law is applied as a law of the State of Queensland, the Queensland Competition Authority established by section 7 of the Queensland Competition Authority Act 1997 of Queensland;

(d) if this Law is applied as a law of the State of South Australia, the Essential Services Commission established by section 4(1) of the Essential Services Commission Act 2002 of South Australia;

(e) if this Law is applied as a law of the Australian Capital Territory, the Independent Competition and Regulatory Commission for the Australian Capital Territory established by section 5(1) of the Independent Competition and Regulatory Commission Act 1997 of the Australian Capital Territory;

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

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

(h) any other person or body established under an Act of a participating jurisdiction that is prescribed by the Regulations as a jurisdictional regulator of that jurisdiction;

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

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

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

Minister of a participating jurisdiction means a Minister who is a Minister of a participating jurisdiction within the meaning of section 6;

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

national electricity legislation means—

(a) the National Electricity (South Australia) Act 1996 of South Australia and Regulations in force under that Act; and

(b) the National Electricity (South Australia) Law; and

(c) an Act of a participating jurisdiction (other than South Australia) that applies, as a law of that jurisdiction, any part of—

(i) the Regulations referred to in paragraph (a); or

(ii) the National Electricity Law set out in the Schedule to the Act referred to in paragraph (a); and

(d) the National Electricity Law set out in the Schedule to the Act referred to in paragraph (a) as applied as a law of a participating jurisdiction (other than South Australia); and

(e) the Regulations referred to in paragraph (a) as applied as a law of a participating jurisdiction (other than South Australia);

national electricity market means—

(a) the wholesale exchange operated and administered by NEMMCO under this Law and the Rules; and

(b) the national electricity system;

national electricity market objective means the objective set out in section 7;

National Electricity Rules or Rules means—

(a) the initial National Electricity Rules; and

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

(i) the initial National Electricity Rules; or

(ii) Rules made by it;

national electricity system means—

(a) the generating systems and other facilities owned, controlled or operated in the participating jurisdictions connected to the interconnected transmission and distribution system referred to in paragraph (b); and

(b) the interconnected transmission and distribution system in the participating jurisdictions used to convey and control the conveyance of electricity to which are connected—

(i) generating systems and other facilities; and

(ii) loads settled through the wholesale exchange operated and administered by NEMMCO under this Law and the Rules;

NEMMCO means National Electricity Market Management Company Limited ACN 072 010 327;

offence provision means a provision of this Law the breach or contravention of which exposes a person to a criminal penalty;

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

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

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

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

participating jurisdiction means a jurisdiction that is a participating jurisdiction within the meaning of section 5;

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

Registered participant means a person who is registered as such by NEMMCO under this Law and the Rules or is registered as such by NEMMCO otherwise in accordance with the Rules;

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

(a) who is a Registered participant; and

(b) whose revenue or prices are regulated under a transmission determination;

Regulations means the regulations made under Part 4 of the National Electricity (South Australia) Act 1996 of South Australia that apply as a law of this jurisdiction;

regulatory obligation means, in relation to the provision by a regulated transmission system operator of services that are the subject of a transmission determination—

(a) a transmission reliability standard;

(b) a transmission service standard;

(c) legislation of a participating jurisdiction or any instrument made or issued under or for the purposes of that legislation that levies or imposes a tax that is payable by a regulated transmission system operator;

(d) legislation of a participating jurisdiction or any instrument made or issued under or for the purposes of that legislation that regulates the use of land in a participating jurisdiction by a regulated transmission system operator;

(e) legislation of a participating jurisdiction or any instrument made or issued under or for the purposes of that legislation that relates to the protection of the environment;

(f) legislation of a participating jurisdiction or any instrument made or issued under or for the purposes of that legislation (other than national electricity legislation or legislation or an instrument referred to in paragraphs (c) to (e)) that materially affects the provision, by a regulated transmission system operator, of services that are the subject of a transmission determination,

but does not include a penalty paid or to be paid under legislation or an instrument referred to in paragraphs (c) to (f);

relevant court means any court of this jurisdiction;

relevant participant means—

(a) a Registered participant; or

(b) NEMMCO; or

(d) a person prescribed by the Regulations to be a relevant participant,

but does not include a Registered participant that is prescribed by the Regulations not to be a relevant participant;

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

transmission determination means a determination of the AER under the Rules that regulates—

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

(b) the prices an owner, controller or operator of a transmission system charges, or may charge for services provided by that owner, controller or operator that are the subject of economic regulation under the Rules;

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

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

(a) by or under jurisdictional electricity legislation; or

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

3—Interpretation generally

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

4—Savings and transitionals

Schedule 3 to this Law has effect.

5—Participating jurisdictions

(1) The following jurisdictions are participating jurisdictions for the purposes of this Law—

(a) the State of South Australia; and

(b) the Commonwealth, a Territory or a State (other than South Australia) if there is in force, as part of the law of that jurisdiction, a law that corresponds to Part 2 of the National Electricity (South Australia) Act 1996 of South Australia.

(2) If a law of a participating jurisdiction referred to in subsection (1)(b) that corresponds to Part 2 of the National Electricity (South Australia) Act 1996 of South Australia ceases to be in force, the jurisdiction ceases to be a participating jurisdiction.

(3) If, at any time, all participating jurisdictions agree that a specified jurisdiction will cease to be a participating jurisdiction on a specified date, the jurisdiction ceases to be a participating jurisdiction on that date.

(4) A notice must be published in the South Australian Government Gazette of the date on which a jurisdiction ceases to be a participating jurisdiction under subsection (2) or (3).

(5) If the legislature of a participating jurisdiction enacts a law that, in the unanimous opinion of the Ministers of the other participating jurisdictions, is inconsistent with this Law, those other participating jurisdictions may give notice to the Minister of the first-mentioned participating jurisdiction to the effect that, if the inconsistent law remains in force as an inconsistent law for more than 6 months after the notice is given, the other participating jurisdictions may declare that the jurisdiction has ceased to be a participating jurisdiction.

(6) A jurisdiction ceases to be a participating jurisdiction on publication in the South Australian Government Gazette of a declaration made by the Ministers of the other participating jurisdictions in accordance with subsection (5).

6—Ministers of participating jurisdictions

(1) The Ministers of the participating jurisdictions are—

(a) the Minister of the Crown in right of South Australia administering Part 2 of the National Electricity (South Australia) Act 1996 of South Australia; and

(b) the Ministers of the Crown in right of the other participating jurisdictions administering the laws of those jurisdictions that correspond to Part 2 of the National Electricity (South Australia) Act 1996 of South Australia.

(2) The State of Tasmania may nominate a Minister of the Crown in right of that State to be a Minister of a participating jurisdiction and the nominated Minister is to be treated as such until—

(a) there is in force in Tasmania a law that corresponds to Part 2 of the National Electricity (South Australia) Act 1996 of South Australia; or

(b) a date fixed by all participating jurisdictions by agreement,

whichever first occurs.

(3) A notice of an agreement under subsection (2) must be published in the South Australian Government Gazette.

7—National electricity market objective

The national electricity market objective is to promote efficient investment in, and efficient use of, electricity services for the long term interests of consumers of electricity with respect to price, quality, reliability and security of supply of electricity and the reliability, safety and security of the national electricity system.

8—MCE statements of policy principles

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

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

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

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

9—National Electricity Rules to have force of law

The National Electricity Rules have the force of law in this jurisdiction.

10—Application of this Law and Regulations to coastal waters of this jurisdiction

(1) This Law and the Regulations apply in the coastal waters of this jurisdiction.

Note—

The Rules apply in this jurisdiction by operation of this Law.

(2) In this section—

adjacent area has the same meaning as in the Petroleum (Submerged Lands) Act 1967 of the Commonwealth;

coastal waters of this jurisdiction means any sea that is on the landward side of the adjacent area of this jurisdiction but is not within the limits of this jurisdiction.

Part 2—Participation in the National Electricity Market

11—Registration required to undertake certain activities in the national electricity market

(1) A person must not engage in the activity of owning, controlling or operating a generating system connected to the interconnected transmission and distribution system unless—

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

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

Note—

Subsection (1) is a civil penalty provision: See the definition of "civil penalty provision" in section 58.

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

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

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

Note—

Subsection (2) is a civil penalty provision: See the definition of "civil penalty provision" in section 58.

(3) A person, other than NEMMCO, must not engage in the activity of operating or administering a wholesale exchange for electricity.

Note—

Subsection (3) is a civil penalty provision: See the definition of "civil penalty provision" in section 58.

(4) A person must not engage in the activity of purchasing electricity directly through a wholesale exchange unless—

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

Note—

Subsection (4) is a civil penalty provision: See the definition of "civil penalty provision" in section 58.

12—Registration or exemption of persons participating in the national electricity market

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

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

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

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

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

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

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

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

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

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

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

14—Evidence as to Registered participants and exemptions

(1) A certificate signed by a member of the board of directors of NEMMCO certifying that a person—

(a) is a Registered participant is evidence that the person is a Registered participant;

(b) has been granted an exemption under section 12 is evidence that the person has been granted the exemption.

Note—

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

(2) A certificate signed by a member of the AER certifying that a person has been granted an exemption under section 13 is evidence that the person has been granted the exemption.

Part 3—Functions and powers of the Australian Energy Regulator

Division 1—General

15—Functions and powers of the AER

The AER has the following functions and powers—

(a) to monitor compliance by Registered participants and other persons with this Law, the Regulations and the Rules; and

(b) to investigate breaches or possible breaches of provisions of this Law, the Regulations or the Rules that are not offence provisions; and

(i) against relevant participants under section 61 of this Law or section 44AAG of the Trade Practices Act 1974 of the Commonwealth; or

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

(iii) against persons under section 68 of this Law; and

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

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

(f) AER economic regulatory functions or powers; and

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

16—Manner in which AER must perform or exercise AER economic regulatory functions or powers

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

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

(b) if the function or power performed or exercised by the AER relates to the making of a transmission determination, ensure that the regulated transmission system operator to whom the determination will apply, and any affected Registered participant, are, in accordance with the Rules—

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

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

(2) Without limiting subsection (1)(a), the AER, in making a transmission determination, must in accordance with the Rules—

(a) provide a reasonable opportunity for the regulated transmission system operator to recover the efficient costs of complying with a regulatory obligation; and

(b) provide effective incentives to the regulated transmission system operator to promote economic efficiency in the provision by it of services that are the subject of the transmission determination, including—

(i) the making of efficient investments in the transmission system owned, controlled or operated by it and used to provide services that are the subject of the transmission determination; and

(ii) the efficient provision by it of services that are the subject of the transmission determination; and

(c) make allowance for the value of assets forming part of the transmission system owned, controlled or operated by the regulated transmission system operator, and the value of proposed new assets to form part of that transmission system, that are, or are to be, used to provide services that are the subject of the transmission determination; and

(d) have regard to any valuation of assets forming part of the transmission system owned, controlled or operated by the regulated transmission system operator applied in any relevant determination or decision.

(3) In this section—

affected Registered participant means a Registered participant (other than the regulated transmission system operator to whom the determination will apply) whose interests are affected by the transmission determination;

relevant determination or decision means—

(a) any previous transmission determination; or

(b) a determination or decision under the National Electricity Code or jurisdictional electricity legislation regulating the revenue earned, or prices charged, by the regulated transmission system operator in respect of services provided by it that were regulated under the Code or that legislation.

17—Delegations

Any delegation by the AER under section 44AAH of the Trade Practices Act 1974 of the Commonwealth extends to, and has effect for the purposes of, this Law, the Regulations and the Rules.

18—Confidentiality

Section 44AAF of the Trade Practices Act 1974 of the Commonwealth extends to, and has effect for the purposes of, this Law, the Regulations and the Rules.

Division 2—Investigation powers

19—Definitions

In this Division—

authorised person means a person authorised under section 20;

relevant provision means—

(a) a provision of this Law that is not an offence provision; or

(b) a provision of the Rules.

20—Authorised person

The AER may, in writing, authorise a person to be an authorised person for the purposes of this Division.

21—Search warrant

(1) An authorised person may apply to a magistrate for the issue of a search warrant in relation to a particular place if the person believes on reasonable grounds that—

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

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

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

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

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

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

(d) to inspect, examine or photograph anything in the place;

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

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

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

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

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

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

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

(4) Except as provided by this Law, the rules to be observed with respect to search warrants mentioned in any relevant laws of this jurisdiction extend and apply to warrants under this section.

22—Announcement before entry

(1) On executing a search warrant, the person executing the warrant must announce that he or she is authorised by the warrant to enter the place and, if the person has been unable to obtain unforced entry, must give any person at the place an opportunity to allow entry to the place.

(2) A person need not comply with subsection (1) if he or she believes on reasonable grounds that immediate entry to the place is required to ensure the safety of any person or that the effective execution of the search warrant is not frustrated.

23—Details of warrant to be given to occupier

(1) If the occupier or another person who apparently represents the occupier is present at premises when a search warrant is being executed, the person executing the warrant must—

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

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

(2) A person executing the warrant is not entitled to exercise any powers under that warrant in relation to premises if the person does not—

(a) identify himself or herself to the occupier, or any other person who apparently represents the occupier and who is present at the premises, before the warrant is executed; and

(b) give the occupier, or any other person who apparently represents the occupier and who is present at the premises, a copy of the warrant.

24—Copies of seized documents

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

(2) A copy of a document certified under subsection (1) shall be received in all relevant courts and all tribunals as evidence of equal validity to the original.

25—Retention and return of seized documents or things

(1) If a person executing a warrant seizes a document or other thing in accordance with the warrant, the person must take reasonable steps to return the document or thing to the person from whom it was seized if the reason for its seizure no longer exists.

(2) If the document or thing seized has not been returned within 3 months after it was seized, the person executing the warrant must take reasonable steps to return it unless—

(a) proceedings for the purpose for which the document or thing was retained have commenced within that 3 month period and those proceedings (including any appeal) have not been completed; or

(b) a magistrate makes an order under section 26 extending the period during which the document or thing may be retained.

26—Period for retention of documents or things seized may be extended

(1) An authorised person may apply to a magistrate—

(a) within 3 months after a document or other thing was seized in accordance with a warrant; or

(b) if an extension has been granted under this section, before the end of the period of the extension,

for an extension of the period for which the AER may retain the document or thing but so that the total period of retention does not exceed 12 months.

(2) An application must be made before proceedings for the purpose for which the document or thing was retained have been commenced.

(3) A magistrate may order such an extension if he or she is satisfied that—

(a) it is in the interests of justice; and

(b) the total period of retention does not exceed 12 months; and

(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 Law.

(4) If proceedings are commenced for the purpose for which the document or thing was retained at any time before the expiry of the period specified in an order under this section, the document or thing may be retained until those proceedings (including any appeal) have been completed despite those proceedings being completed after the period specified in the order.

(5) At least 7 days prior to the hearing of an application under this section by a magistrate, notice of the application must be sent to the owner of the document or thing described in the application.

27—Obstruction of persons authorised to enter

A person must not, without reasonable excuse, obstruct or hinder a person in the exercise of a power under a search warrant under this Division.

Penalty:

(a) in the case of natural person—$2 000;

(b) in the case of a body corporate—$10 000.

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

(1) If the AER has reason to believe that a person is capable of furnishing information or producing a document that the AER requires for the performance or exercise of a function or power conferred on it under this Law or the Rules, the AER may, by notice in writing, serve on that person a relevant notice.

(2) A relevant notice may require the person to—

(a) furnish to the AER, by writing signed by that person or, in the case of a body corporate, by a competent officer of the body corporate, within the time and in the manner specified in the notice, any information of the kind referred to in subsection (1); or

(b) produce to the AER, or to a person specified in the notice acting on its behalf, in accordance with the notice, any documents of the kind referred to in subsection (1).

(3) A person must not—

(a) without reasonable excuse, refuse or fail to comply with a relevant notice; or

(b) in purported compliance with a relevant notice, knowingly furnish information that is false or misleading.

Penalty:

(a) in the case of a natural person—$2 000;

(b) in the case of a body corporate—$10 000.

(4) To avoid doubt, it is a reasonable excuse for the purposes of subsection (3)(a) if a person is not capable of complying with a relevant notice.

(5) It is also a reasonable excuse for a natural person to—

(a) fail to furnish information of the kind referred to in subsection (1) to the AER; or

(b) fail to produce a document of the kind referred to in subsection (1) to the AER, or to a person specified in a relevant notice acting on behalf of the AER,

if to do so might tend to incriminate the person or make the person liable to a criminal penalty.

(6) This section does not require a person to—

(a) furnish information that is the subject of legal professional privilege; or

(b) produce a document the production of which would disclose information that is the subject of legal professional privilege.

(7) This section does not require a person to—

(a) give information that would disclose the contents of a document prepared for the purposes of a meeting of the Cabinet of the Commonwealth or of a State or a Territory; or

(b) produce a document prepared for the purposes of a meeting of the Cabinet of the Commonwealth or of a State or a Territory; or

(c) give information, or produce a document, that would disclose the deliberations of the Cabinet of the Commonwealth or of a State or a Territory.

(8) In this section—

relevant notice means a notice served under subsection (1).

Part 4—Functions and powers of the Australian Energy Market Commission

Division 1—General

29—Functions and powers of the AEMC

(1) The AEMC has the following functions and powers—

(a) the Rule making functions and powers conferred on it under this Law and the Regulations; and

(b) the market development functions conferred on it under this Law and the Rules; and

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

30—Delegations

Any delegation by the AEMC under section 20 of the Australian Energy Market Commission Establishment Act 2004 of South Australia extends to, and has effect for the purposes of, this Law, the Regulations and the Rules.

31—Confidentiality

Section 24 of the Australian Energy Market Commission Establishment Act 2004 of South Australia extends to, and has effect for the purposes of, this Law, the Regulations and the Rules.

32—AEMC must have regard to national electricity market objective

In performing or exercising any function or power under this Law, the Regulations or the Rules, the AEMC must have regard to the national electricity market objective.

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

The AEMC must have regard to any relevant MCE statement of policy principles—

(a) in making a Rule; or

(b) in conducting a review under section 45.

Division 2—Rule making functions and powers of the AEMC

34—Subject matter for National Electricity Rules

(1) Subject to this Division, the AEMC, in accordance with this Law and the Regulations, may make Rules, to be known, collectively, as the "National Electricity Rules", for or with respect to regulating—

(a) the operation of the national electricity market; and

(b) the operation of the national electricity system for the purposes of the safety, security and reliability of that system; and

(c) the activities of persons (including Registered participants) participating in the national electricity market or involved in the operation of the national electricity system.

Note—

The procedure for the making of a Rule by the AEMC is set out in Division 3 of Part 7.

(2) Without limiting subsection (1), the AEMC, in accordance with this Law and the Regulations, may make Rules for or with respect to any matter or thing specified in Schedule 1 to this Law.

(3) Rules made by the AEMC in accordance with this Law and the Regulations may—

(a) be of general or limited application;

(b) vary according to the persons, times, places or circumstances to which they are expressed to apply;

(i) the AER, the AEMC, NEMMCO or a jurisdictional regulator; or

(ii) the Reliability Panel or any other panel or committee established by the AEMC; or

(iii) any other body established, or person appointed, in accordance with the Rules;

(d) confer rights or impose obligations on any person or a class of person (other than the AER, the AEMC or a jurisdictional regulator);

(e) confer a function on the AER, the AEMC, NEMMCO, or a jurisdictional regulator, to make or issue guidelines, tests, standards, procedures or any other document (however described) in accordance with the Rules;

(f) empower or require any person (other than a person referred to in paragraph (e)) or body to make or issue guidelines, tests, standards, procedures or any other document (however described) in accordance with the Rules;

(g) apply, adopt or incorporate wholly or partially, or as amended by the Rules, the provisions of any standard, rule, specification, method or document (however described) formulated, issued, prescribed or published by any person, authority or body whether—

(i) as formulated, issued, prescribed or published at the time the Rules are made or at any time before the Rules are made; or

(ii) as amended from time to time;

(h) confer a power of direction on the AER, the AEMC, NEMMCO or a jurisdictional regulator to require a person conferred a right or on whom an obligation is imposed under the Rules (including a Registered participant) to comply with—

(i) a guideline, test, standard, procedure or other document (however described) referred to in paragraph (e) or (f); or

(ii) a standard, rule, specification, method or document (however described) referred to in paragraph (g);

(i) if this section authorises or requires Rules that regulate any matter or thing, prohibit that matter or thing or any aspect of that matter of thing;

(j) provide for the review of, or a right of appeal against, a decision or determination made under the Rules and for that purpose, confer jurisdiction on the Court;

(k) require a form prescribed by or under the Rules, or information or documents included in, attached to or given with the form, to be verified by statutory declaration;

(l) in a specified case or class of case, exempt—

(i) NEMMCO; or

(ii) a Registered participant or class of Registered participant; or

(iii) any other person or body performing or exercising a function or power, or conferred a right, or on whom an obligation is imposed, under the Rules or a class of any such person or body,

from complying with a provision, or a part of a provision, of the Rules;

(m) provide for the modification or variation of a provision of the Rules (with or without substitution of a provision of the Rules or a part of a provision of the Rules) as it applies to—

(i) NEMMCO; or

(ii) a Registered participant or class of Registered participant; or

(iii) any other person or body performing or exercising a function or power, or conferred a right, or on whom an obligation is imposed, under the Rules or a class of any such person or body;

(n) confer an immunity on, or limit the liability of, any person or body performing or exercising a function or power, or conferred a right, or on whom an obligation is imposed, under the Rules;

(o) require a person or body performing or exercising a function or power, or conferred a right, or on whom an obligation is imposed, under the Rules to indemnify another such person or body;

(p) contain provisions of a savings or transitional nature consequent on the amendment or revocation of a Rule.

35—Rules in relation to economic regulation of transmission systems

(1) Subject to this section, the AEMC must make Rules for or with respect to the matters or things specified in items 15 to 24 of Schedule 1 to this Law on or before 1 July 2006 or any later date that is prescribed by the Regulations.

(2) In making Rules as required by this section, the AEMC must treat the Rules as AEMC initiated Rules.

(3) Rules made as required by this section must—

(a) provide a reasonable opportunity for a regulated transmission system operator to recover the efficient costs of complying with a regulatory obligation; and

(b) provide effective incentives to a regulated transmission system operator to promote economic efficiency in the provision by it of services that are the subject of a transmission determination, including—

(i) the making of efficient investments in the transmission system owned, controlled or operated by it and used to provide services that are the subject of a transmission determination; and

(ii) the efficient provision by it of services that are the subject of a transmission determination; and

(c) require the AER, in making a transmission determination, to make allowance for the value of assets forming part of a transmission system owned, controlled or operated by a regulated transmission system operator, and the value of proposed new assets to form part of that transmission system, that are, or are to be, used to provide services that are the subject of a transmission determination; and

(d) require the AER to have regard to any valuation of assets forming part of a transmission system owned, controlled or operated by a regulated transmission system operator applied in any relevant determination or decision.

(4) In this section—

relevant determination or decision means—

(a) any previous transmission determination; or

(b) a determination or decision under the National Electricity Code or jurisdictional electricity legislation regulating the revenue earned, or prices charged, by a regulated transmission system operator in respect of services provided by it that were regulated under the Code or that legislation.

36—National Electricity Rules to always provide for certain matters relating to transmission systems

On and from the date Rules are first made as required by section 35, the National Electricity Rules must at all times provide for the matters or things specified in items 15 to 24 of Schedule 1 to this Law and the matters or things specified in section 35(3).

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

(1) The AEMC must make publicly available—

(a) every standard, rule, specification, method or document (however described) formulated, issued, prescribed or published by any person, authority or body that is applied, adopted or incorporated by a Rule; and

(b) if a standard, rule, specification, method or document (however described) formulated, issued, prescribed or published by any person, authority or body is applied, adopted or incorporated by a Rule as amended from time to time—any amendment to that standard, rule, specification, method or document.

(2) In this section—

publicly available, in relation to a standard, rule, specification, method or document (however described) formulated, issued, prescribed or published by any person, authority or body applied, adopted or incorporated by any Rule, means—

(a) publishing the standard, rule, specification, method or document on the AEMC's website; or

(b) specifying a place from which the standard, rule, specification, method or document may be obtained or purchased (as the case requires).

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

38—The Reliability Panel

(1) The AEMC must establish a panel of persons to be known as the Reliability Panel, the composition of which must be in accordance with the Rules.

(2) The functions and powers of the Reliability Panel are—

(a) to monitor, review and report on, in accordance with the Rules, the safety, security and reliability of the national electricity system; and

(b) at the request of the AEMC, to provide advice in relation to the safety, security and reliability of the national electricity system; and

(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 4—MCE directed reviews

40—Definition

In this Division—

MCE directed review means a review conducted in accordance with this Division.

41—MCE directions

(1) The MCE may give a written direction to the AEMC that the AEMC conduct a review into—

(a) any matter relating to the national electricity market; or

(b) the operation and effectiveness of the Rules; or

(2) A direction given to the AEMC under this section is binding on the AEMC and must be complied with despite anything to the contrary in the Rules.

(3) A direction given under this section must be published in the South Australian Government Gazette.

(4) The AEMC must cause a direction given under this section to be published on its website.

42—Terms of reference

(1) The terms of reference of a MCE directed review will be as specified in the direction given by the MCE.

(2) The MCE may in its direction to the AEMC do one or more of the following—

(a) require the AEMC to give a report on a MCE directed review to the MCE within a specified period;

(b) require the AEMC to make the report on a MCE directed review publicly available or available to specified persons or bodies;

(c) require the AEMC to make a draft report publicly available or available to specified persons or bodies during a MCE directed review;

(d) require the AEMC to consider specified matters in the conduct of a MCE directed review;

(e) require the AEMC to have specified objectives in the conduct of a MCE directed review which need not be limited by the national electricity market objective;

(f) give the AEMC other specific directions in respect of the conduct of a MCE directed review.

43—Notice of MCE directed review

(1) The AEMC must publish notice of a MCE directed review on its website and in a newspaper circulating generally throughout Australia.

(2) The AEMC must publish a further such notice if a term of reference or a requirement or direction relating to the MCE directed review is varied.

44—Conduct of MCE directed review

Subject to any requirement or direction of the MCE, a MCE directed review—

(a) may be conducted in such manner as the AEMC considers appropriate; and

(b) may (but need not) involve public hearings.

Division 5—Other reviews

45—Reviews by the AEMC

(1) The AEMC may conduct a review into—

(a) the operation and effectiveness of the Rules; or

(b) any matter relating to the Rules.

(2) A review—

(a) may be conducted in such manner as the AEMC considers appropriate; and

(b) may (but need not) involve public hearings.

(3) During the course of a review, the AEMC may—

(a) consult with any person or body that it considers appropriate;

(b) establish working groups to assist it in relation to any aspect, or any matter or thing that is the subject, of the review;

(c) commission reports by other persons on its behalf on any aspect, or matter or thing that is the subject, of the review;

(d) publish discussion papers or draft reports.

(4) At the completion of a review, the AEMC must—

(a) publish a report; and

(b) give a copy of the report to the MCE.

Division 6—Miscellaneous

46—AEMC must publish and make available up to date versions of the National Electricity Rules

The AEMC must, at all times—

(a) publish on its website, the National Electricity Rules, as in force from time to time; and

(b) make copies of the National Electricity Rules, as in force from time to time, available to the public for inspection at its offices during normal business hours.

47—Fees for services provided

(1) The AEMC may charge a fee specified in the Regulations for services provided by it in performing or exercising any of its functions or powers under this Law or the Rules.

(2) The fee must not be such as to amount to taxation.

48—Confidentiality of information received for the purposes of a review

(1) Information provided to the AEMC for the purposes of a MCE directed review or a review conducted by the AEMC under section 45 is confidential information for the purposes of Division 4 or 5 if—

(a) the person who provides it claims, when providing it to the AEMC, that it is confidential information; and

(b) the AEMC decides that the information is confidential information.

(2) Nothing prevents the disclosure of confidential information in a report to the MCE or a Minister of a participating jurisdiction under Division 4 or 5, but the AEMC must ensure that the information is identified as such in the report.

(3) If the AEMC decides that information provided to it for the purposes of a MCE directed review, or a review conducted by the AEMC under section 45, is confidential information, the AEMC, the MCE or a Minister of a participating jurisdiction may only make public a version of the report from which the information has been omitted.

(4) If information is omitted from a published version of a report as being confidential information, a note to that effect must be included in the report at the place in the report from which the information is omitted.

(5) In this section—

MCE directed review has the same meaning as in section 40.

Note—

Section 48 of this Law permits the disclosure of confidential information for the purposes of section 24(2) of the Australian Energy Market Commission Establishment Act 2004 of South Australia.

Part 5—Role of NEMMCO under the National Electricity Law

Division 1—Conferral of certain functions

49—Functions of NEMMCO in respect of national electricity market

(1) NEMMCO has the following functions in respect of the national electricity market—

(a) to operate and administer, in accordance with this Law and the Rules, the wholesale exchange; and

(b) to promote the development and improve the effectiveness of the operation and administration of the wholesale exchange; and

(c) to register persons as Registered participants in accordance with this Law and the Rules or otherwise in accordance with the Rules; and

(d) to exempt certain persons from being registered as Registered participants; and

(e) to maintain and improve power system security; and

(f) to undertake the coordination of the planning of augmentations to the national electricity system; and

(g) any other functions conferred on it under this Law or the Rules.

(2) NEMMCO must exercise the functions referred to in this section in accordance with this Law and the Rules.

50—Operation and administration of national electricity market

NEMMCO must perform a function referred to in section 49 efficiently and on a full cost recovery but not for profit basis.

51—NEMMCO not to be taken to be engaged in the activity of controlling or operating a generating, transmission or distribution system

NEMMCO is not to be taken to be engaged in the activity of controlling or operating a generating system, transmission system or distribution system by reason only of it performing the functions conferred on it under this Law or the Rules.

52—Delegation

NEMMCO, in accordance with the Rules, may, in writing, delegate to any person a function or power conferred on it under this Law or the Rules other than this power of delegation.

Division 2—Statutory funds of NEMMCO

53—Definitions

In this Division—

Code fund has the same meaning as in section 65 of the old National Electricity Law;

existing Rule fund means a Code fund established by NEMMCO under section 67 of the old National Electricity Law;

new Rule fund means a fund that NEMMCO is required to establish in accordance with this Law;

Rule fund means an existing Rule fund or new Rule fund.

54—Rule funds of NEMMCO

(1) Subject to the Rules, NEMMCO must continue to have, in the books of the corporation, the existing Rule funds.

(2) NEMMCO must, if required to do so by the Rules, establish, in accordance with the Rules, in the books of the corporation, a new Rule fund.

55—Payments into Rule funds

(1) NEMMCO must ensure that there is paid into each Rule fund—

(a) all amounts received by NEMMCO that, under the Rules, are required to be paid into the fund; and

(b) income from investment of money in the fund.

(2) Money of a Rule fund may be applied only in payment of—

(a) amounts that, under the Rules, are required or permitted to be paid from the fund;

(b) liabilities or expenses of the fund.

56—Investment

(1) NEMMCO may invest money standing to the credit of a Rule fund.

(2) NEMMCO must, in exercising a power of investment under subsection (1), exercise the care, diligence and skill that a prudent person would exercise in managing the affairs of other persons.

57—NEMMCO not trustee

To avoid doubt, it is declared that nothing in this Law or the Rules is to be taken as constituting NEMMCO, or a director of NEMMCO, as a trustee of the money of a Rule fund.

Part 6—Proceedings under the National Electricity Law

Division 1—General

58—Definitions

In this Part—

civil penalty means—

(a) in the case of a breach of a civil penalty provision that is not a rebidding civil penalty provision by—

(i) a natural person—

(A) an amount not exceeding $20 000; and

(B) an amount not exceeding $2 000 for every day during which the breach continues;

(ii) a body corporate—

(A) an amount not exceeding $100 000; and

(B) an amount not exceeding $10 000 for every day during which the breach continues;

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

(i) an amount not exceeding $1 000 000; and

(ii) an amount not exceeding $50 000 for every day during which the breach continues;

civil penalty provision means—

(a) section 11(1), (2), (3) or (4); or

(b) a rebidding civil penalty provision; or

(c) any other provision of this Law or a provision of the Rules prescribed by the Regulations to be a civil penalty provision;

Dispute resolution panel means a person or a panel of persons appointed in accordance with the Rules to hear and determine a Rule dispute;

rebidding civil penalty provision means a provision of the Rules that is prescribed by the Regulations to be a rebidding civil penalty provision;

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

59—Instituting civil proceedings under this Law

(1) Proceedings may not be instituted in a relevant court in respect of a breach of a provision of this Law, the Regulations or the Rules that is not an offence provision by any person (other than the AER) except as provided for in this Part.

(2) Despite subsection (1), a person may institute a proceeding in the Court in respect of any matter or thing arising out of or that is the subject of a Rule dispute if the Rules provide that a proceeding may be instituted in the Court in respect of that matter or thing.

(3) To avoid doubt, nothing in this Part prevents the use of this Law, the Regulations or the Rules as evidence in any proceedings.

Division 2—Proceedings by the AER in respect of this Law, the Regulations and the Rules

60—Time limit within which AER may institute proceedings

A proceeding for a breach of a provision of this Law, the Regulations or the Rules by a relevant participant that is not an offence provision may only be instituted by the AER within 6 years of the date on which the breach occurred.

61—Proceedings for breaches of a provision of this Law, the Regulations or the Rules that are not offences

(1) The Court may make an order, on application by the AER on behalf of the Commonwealth, declaring that a relevant participant is in breach of a provision of this Law, the Regulations or the Rules that is not an offence provision.

Note—

A Supreme Court of a participating jurisdiction that is a State may hear an application by the AER under subsection (1) by operation of subsection 39(2) of the Judiciary Act 1903 of the Commonwealth.

(2) If the order declares the relevant participant to be in breach of a provision of this Law, the Regulations or the Rules that is not an offence provision, the order may include one or more of the following—

(a) an order that the relevant participant pay a civil penalty determined in accordance with this Law, the Regulations and the Rules;

(b) an order that the relevant participant cease, within a specified period, the act, activity or practice constituting the breach;

(c) an order that the relevant participant take such action, or adopt such practice, as the Court requires for remedying the breach or preventing a recurrence of the breach;

(d) an order that the relevant participant implement a specified program for compliance with this Law, the Regulations and the Rules;

(e) an order of a kind prescribed by the Regulations.

(3) If a relevant participant has engaged, is engaging or is proposing to engage in any conduct in breach of a provision of this Law, the Regulations or the Rules that is not an offence provision, the Court may, on application by the AER, grant an injunction—

(a) restraining the relevant participant from engaging in the conduct; and

(b) if, in the Court's opinion, it is desirable to do so—requiring the relevant participant to do something.

(4) The power of the Court under subsection (3) to grant an injunction restraining a relevant participant from engaging in conduct of a particular kind may be exercised—

(a) if the Court is satisfied that the relevant participant has engaged in conduct of that kind—whether or not it appears to the Court that the relevant participant intends to engage again, or to continue to engage, in conduct of that kind; or

(b) if it appears to the Court that, if an injunction is not granted, it is likely that the relevant participant will engage in conduct of that kind—whether or not the relevant participant has previously engaged in conduct of that kind and whether or not there is an imminent danger of substantial damage to any person if the relevant participant engages in conduct of that kind.

62—Additional Court orders for Registered participants in breach

An order under section 61 by the Court may, in relation to a Registered participant that has been declared in that order to be in breach of a provision of this Law, the Regulations or the Rules that is not an offence provision, also include either or both of the following—

(a) a direction that the Registered participant's loads be disconnected in accordance with the Rules;

(b) a direction that the Registered participant be suspended from, as the case requires, purchasing or supplying electricity through the wholesale exchange operated and administered by NEMMCO.

Note—

There is power under paragraph 44AAG(2)(e) of the Trade Practices Act 1974 of the Commonwealth to prescribe, by regulation, an order that may be included in an order of the Federal Court declaring a person to be in breach of a law referred to in subsection 44AAG(1) of the Trade Practices Act 1974 of the Commonwealth. An order of the kind referred to section 62 of this Law may be prescribed under that paragraph.

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

(1) The Court, on application by the AER on behalf of the Commonwealth, may make an order that directs that a Registered participant's loads be disconnected if a relevant disconnection event occurs.

(2) In this section—

relevant disconnection event means an event specified in the Rules as being an event for which a Registered participant's loads may be disconnected, being an event that does not constitute a breach of the Rules.

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

Every civil penalty ordered to be paid by a relevant participant declared to be in breach of a provision of this Law, the Regulations or the Rules must be determined having regard to all relevant matters, including—

(a) the nature and extent of the breach; and

(b) the nature and extent of any loss or damage suffered as a result of the breach; and

(d) whether the relevant participant has engaged in any similar conduct and been found to be in breach of a provision of this Law, the Rules or the Regulations in respect of that conduct.

65—Breach of a civil penalty provision is not an offence

A breach of a civil penalty provision is not an offence.

66—Breaches of civil penalty provisions involving continuing failure

For the purpose of determining the civil penalty for a breach of a civil penalty provision if the breach consists of a failure to do something that is required to be done, the breach is to be regarded as continuing until the act is done despite the fact that any period within which, or time before which, the act is required to be done has expired or passed.

67—Conduct in breach of more than one civil penalty provision

(1) If the conduct of a relevant participant constitutes a breach of 2 or more civil penalty provisions, proceedings may be instituted under this Law against the relevant participant in relation to the breach of any one or more of those provisions.

(2) However, the relevant participant is not liable to more than one civil penalty under this Law in respect of the same conduct.

Note—

Clause 39 of Schedule 2 to this Law sets out further provisions in relation to double jeopardy.

68—Persons involved in breach of civil penalty provision

(1) A person must not—

(a) aid, abet, counsel or procure a breach of a civil penalty provision by a relevant participant; or

(b) be in any way directly or indirectly knowingly concerned in, or party to, a breach of a civil penalty provision by a relevant participant.

(2) A relevant participant who attempts to commit a breach of a civil penalty provision commits a breach of that provision.

(3) This Law applies to a person who breaches subsection (1) in relation to a civil penalty provision as if the person were a relevant participant who has breached the civil penalty provision.

69—Civil penalties payable to the Commonwealth

If a relevant participant is ordered to pay a civil penalty, the penalty is payable to the Commonwealth.

Division 3—Judicial review of decisions and determinations under this Law, the Regulations and the Rules

70—Applications for judicial review

(1) A person aggrieved by—

(a) a decision or determination of the AEMC or NEMMCO under this Law, the Regulations or the Rules; or

(b) a failure by the AEMC or NEMMCO to make a decision or determination under this Law, the Regulations or the Rules; or

(c) conduct engaged in, or proposed to be engaged in, by the AEMC or NEMMCO for the purpose of making a decision or determination under this Law, the Regulations or the Rules,

may apply to the Court for judicial review of the decision or determination, failure or conduct or proposed conduct.

Note—

The AER is subject to judicial review under the Administrative Decisions (Judicial Review) Act 1977 of the Commonwealth.

(2) Unless the Court otherwise orders, the making of an application to the Court under subsection (1) does not affect the operation of the decision or determination referred to in that subsection or prevent the taking of action to implement the decision or determination.

(3) In this section—

person aggrieved includes a person whose interests are adversely affected.

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

(1) A person who is a party to a Rule dispute may appeal to the Court, on a question of law, against a decision or determination of a Dispute resolution panel.

(2) The relevant Parts of the Commercial Arbitration Act of this jurisdiction apply to a decision or determination of a Dispute resolution panel as if—

(a) the Rules providing for a Rule dispute were an arbitration agreement within the meaning of that Act; and

(b) a decision or determination of a Dispute resolution panel were an award of an arbitrator.

(3) In this section—

relevant Parts of the Commercial Arbitration Act of this jurisdiction means—

(a) if this Law is applied as a law of the State of New South Wales and a Rule dispute is heard and determined in that State, Parts III, IV and V of the Commercial Arbitration Act 1984 of New South Wales;

(b) if this Law is applied as a law of the State of Victoria and a Rule dispute is heard and determined in that State, Parts III, IV and V of the Commercial Arbitration Act 1984 of Victoria;

(c) if this Law is applied as a law of the State of Queensland and a Rule dispute is heard and determined in that State, Parts 3, 4 and 5 of the Commercial Arbitration Act 1990 of Queensland;

(d) if this Law is applied as a law of the State of South Australia and a Rule dispute is heard and determined in that State, Parts III, IV and V of the Commercial Arbitration Act 1986 of South Australia;

(e) if this Law is applied as a law of the Australian Capital Territory and a Rule dispute is heard and determined in that Territory, Parts 3, 4 and 5 of the Commercial Arbitration Act 1986 of the Australian Capital Territory;

(f) if this Law is applied as a law of another participating jurisdiction and a Rule dispute is heard and determined in that other participating jurisdiction, the Parts of an Act of that jurisdiction or an Act of another participating jurisdiction (as the case requires) prescribed by the Regulations as corresponding to Parts III, IV and V of the Commercial Arbitration Act 1986 of South Australia.

Division 4—Other civil proceedings

72—Obligations under Rules to make payments

(1) If, under the Rules—

(a) a Registered participant is required to pay an amount to NEMMCO or another Registered participant; or

(b) NEMMCO is required to pay an amount to a Registered participant,

and that amount is not paid within 28 days after it is due in accordance with the Rules, the Registered participant to whom the amount is due, or NEMMCO (as the case requires), may recover that amount in a relevant court of competent jurisdiction as a civil debt payable to them.

(2) If, under the Rules, a Registered participant is required to pay an amount to NEMMCO or another Registered participant, or NEMMCO is required to pay an amount to a Registered participant, and the Rules do not specify a date for payment of that amount—

(a) that amount must be paid within the period of time specified in any notice to pay issued by the Registered participant or NEMMCO (as the case requires) that specifies that amount; and

(b) the Registered participant that issued the notice to pay, or NEMMCO (as the case requires), may, if that amount is not paid within 28 days after it is due in accordance with that notice, recover that amount in a relevant court of competent jurisdiction as a civil debt payable to them.

(3) Subsection (1) and (2) apply despite a Registered participant or NEMMCO disputing, in accordance with the Rules, an amount to be paid under the Rules, or specified in a notice to pay, unless—

(a) the Rules otherwise provide; or

(b) the parties to the dispute agree otherwise; or

(c) a relevant Dispute resolution panel, in a civil claim Rule dispute in respect of the payment of an amount referred to in subsection (1) or (2), determines that the relevant subsection does not apply; or

(d) a relevant court of competent jurisdiction determines that subsection (1) or (2) does not apply.

(4) In this section—

civil claim Rule dispute means a dispute between Registered participants, or between NEMMCO and a Registered participant, in relation to the payment of an amount under the Rules in respect of which the Rules provide that the dispute must be resolved in accordance with the Rules;

relevant Dispute resolution panel means a Dispute resolution panel appointed to hear and determine a civil claim Rule dispute;

notice to pay includes a statement of payment, settlement statement, bill or invoice.

Division 5—Infringement notices

73—Definition

In this Division—

relevant civil penalty provision means a civil penalty provision that is not a rebidding civil penalty provision.

74—Power to serve a notice

(1) The AER may serve an infringement notice on a relevant participant that it has reason to believe has breached a relevant civil penalty provision.

(2) An infringement notice may be served on a relevant participant—

(a) if the relevant participant is a natural person—

(i) by delivering it personally to the person; or

(ii) by sending it by post addressed to the person to their usual or last known place of residence or business; or

(b) if the relevant participant is a body corporate—

(i) by delivering it personally to the registered office or usual or last known place of business of the body corporate; or

(ii) by sending it by post addressed to the body corporate to its registered office or usual or last known place of business.

75—Form of notice

An infringement notice must state—

(a) the date of the notice;

(b) that the alleged breach is a breach of the relevant civil penalty provision;

(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 relevant participant is entitled to disregard the notice and defend any proceedings in respect of the relevant civil penalty provision;

(j) any other particulars prescribed by the Regulations.

76—Infringement penalty

The infringement penalty for a breach of a relevant civil penalty provision is—

(a) if the breach is alleged to have been committed by a natural person—$4 000 or any lesser amount that is prescribed by the Regulations in relation to the relevant civil penalty provision;

(b) if the breach is alleged to have been committed by a body corporate—$20 000 or any lesser amount that is prescribed by the Regulations in relation to the relevant civil penalty provision.

77—AER cannot institute proceedings while infringement notice on foot

On serving an infringement notice under this Division, the AER must not institute a proceeding in respect of the breach for which the infringement notice was served if—

(a) the time for payment stated in the infringement notice has not expired; and

(b) the infringement notice has not been withdrawn by the AER in accordance with section 79.

78—Late payment of penalty

The AER may accept payment of the infringement penalty even after the expiration of the time for payment stated in the infringement notice if—

(a) a proceeding has not been instituted in respect of the breach to which the infringement penalty relates; and

(b) the infringement notice has not been withdrawn by the AER in accordance with section 79.

79—Withdrawal of notice

(1) The AER may withdraw an infringement notice at any time before the end of the time for payment specified in the notice by serving a withdrawal notice on the relevant participant served with the infringement notice.

(2) A withdrawal notice may be served on a relevant participant—

(a) if the relevant participant is a natural person—

(i) by delivering it personally to the person; or

(ii) by sending it by post addressed to the person to their usual or last known place of residence or business; or

(b) if the relevant participant is a body corporate—

(i) by delivering it personally to the registered office or usual or last known place of business of the body corporate; or

(ii) by sending it by post addressed to the body corporate to its registered office or usual or last known place of business.

(3) An infringement notice may be withdrawn even if the infringement penalty has been paid.

80—Refund of infringement penalty

If an infringement notice is withdrawn in accordance with section 79, the amount of any infringement penalty paid must be refunded by the AER.

81—Payment expiates breach of relevant civil penalty provision

No proceedings may be taken by the AER against a relevant participant on whom an infringement notice was served in respect of an alleged breach of a relevant civil penalty provision if—

(a) the infringement penalty is—

(i) paid within the time for payment stated in the notice; or

(ii) accepted in accordance with section 78; and

(b) the infringement notice is not withdrawn by the AER within the time for payment stated in the notice in accordance with section 79.

82—Payment not to have certain consequences

The payment of an infringement penalty under this Division is not and must not be taken to be an admission of a breach of a relevant civil penalty provision or an admission of liability for the purpose of any proceeding instituted in respect of the breach.

83—Conduct in breach of more than one civil penalty provision

(1) If the conduct of a relevant participant constitutes a breach of 2 or more relevant civil penalty provisions, an infringement notice may be served on the relevant participant under this Division in relation to the breach of any one or more of those provisions.

(2) However, the relevant participant is not liable to pay more than one infringement penalty in respect of the same conduct.

Note—

Clause 39 of Schedule 2 to this Law sets out further provisions in relation to double jeopardy.

Division 6—Miscellaneous

84—AER to inform certain persons of decisions not to investigate breaches, institute proceedings or serve infringement notices

(1) If the AER is given information by any person in relation to a breach or a possible breach of this Law, the Regulations or the Rules by a relevant participant but—

(a) decides not to investigate that breach or possible breach; or

(b) following an investigation, decides not to—

(i) institute any proceedings in respect of that breach or possible breach; or

(ii) serve an infringement notice in accordance with Division 5 in respect of that breach or possible breach,

the AER must notify that person of that decision in writing.

(2) This section does not apply if the person gave the information to the AER anonymously.

85—Offences and breaches by corporations

(1) If a corporation contravenes an offence provision or is in breach of a civil penalty provision, each officer of the corporation is to be taken to have contravened the offence provision or to have been in breach of the civil penalty provision if the officer knowingly authorised or permitted the contravention or breach.

(2) An officer of a corporation may be proceeded against under an offence provision or civil penalty provision pursuant to this section whether or not the corporation has been proceeded against under the provision.

(3) Nothing in this section affects the liability of a corporation for a contravention of an offence provision or for a breach of a civil penalty provision.

(4) In this section—

officer means a director of the corporation or a person who is otherwise concerned in its management.

86—Proceedings for breaches of certain provisions in relation to actions of officers and employees of relevant participants

(1) If an officer or employee of a relevant participant commits an act in their capacity as officer or employee of the relevant participant that would, if that act were committed by the relevant participant, constitute a breach of a provision of this Law, the Regulations or the Rules that is not an offence provision, that relevant participant is to be taken to have contravened that provision.

(2) In this section—

officer means a director of the relevant participant or a person who is otherwise concerned in the management of the relevant participant.

Part 7—The making of the National Electricity Rules

Division 1—General

87—Definitions

In this Part—

interested person or body means a person or body that has made a written submission or comment under section 97 or 100;

non-controversial Rule means a Rule that is unlikely to have a significant effect on the national electricity market;

publish means—

(a) in relation to a notice required to be published under this Part (except section 90 or 103)—publish in the South Australian Government Gazette, on the AEMC's website and in a newspaper circulating generally throughout Australia;

(b) in relation to a proposed Rule referred to in section 95 and any other documents prescribed by the Regulations in relation to a proposed Rule referred to in section 95—publish on the AEMC's website and make available at the offices of the AEMC;

(c) in relation to a draft Rule determination or final Rule determination—publish on the AEMC's website and make available at the offices of the AEMC;

(d) in relation to any submissions or comments received by the AEMC under this Part—subject to section 108, publish on the AEMC's website and make available at the offices of the AEMC;

urgent Rule means a Rule relating to any matter or thing that, if not made as a matter of urgency, will result in that matter or thing imminently prejudicing or threatening—

(a) the effective operation or administration of the wholesale exchange operated and administered by NEMMCO; or

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

88—Rule making test to be applied by AEMC

(1) The AEMC may only make a Rule if it is satisfied that the Rule will or is likely to contribute to the achievement of the national electricity market objective.

(2) For the purposes of subsection (1), the AEMC may give such weight to any aspect of the national electricity market objective as it considers appropriate in all the circumstances, having regard to any relevant MCE statement of policy principles.

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

In making a jurisdictional derogation, the AEMC must have regard to whether—

(a) the derogation provides for the orderly transfer of the regulation of the electricity industry in a participating jurisdiction under jurisdictional electricity legislation to the regulation of that industry under the national electricity legislation; or

(b) the derogation continues existing regulatory arrangements applying to the electricity industry in a participating jurisdiction and the Minister of the participating jurisdiction requesting the derogation has notified, in writing, the AEMC that he or she considers it necessary and appropriate that the existing regulatory arrangements continue; or

(c) the derogation is necessary to exempt, on an ongoing basis, generating, transmission or distribution systems or other facilities owned, controlled or operated in the participating jurisdiction to which the derogation relates from complying with technical standards relating to connection to the national electricity system set out in the Rules because those systems or facilities, by reason of their design or construction, are unable to comply with those standards.

Division 2—Initial National Electricity Rules

90—South Australian Minister to make initial National Electricity Rules

(1) The Minister in right of the Crown of South Australia administering Part 2 of the National Electricity (South Australia) Act 1996 of South Australia may make Rules for or with respect to any matter or thing referred to in section 34 and Schedule 1 to this Law.

(2) As soon as practicable after making Rules under subsection (1), the Minister referred to in that subsection must—

(a) publish notice of the making of the Rules in the South Australian Government Gazette; and

(b) make the Rules publicly available.

(3) The notice referred to in subsection (2)(a) must state the date on which the Rules commence operation.

(4) The Rules made under subsection (1) may only be made on the recommendation of the MCE.

(5) If the Minister referred to in subsection (1) makes Rules under that subsection, the Minister cannot make another Rule under that subsection.

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

91—Initiation of making of a Rule

(1) The AEMC may make a Rule at the request of any person, the MCE or the Reliability Panel.

Note—

Section 34 and Schedule 1 to this Law specify the subject matter for Rules.

(2) Subject to section 35, the AEMC must not make a Rule on its own initiative unless it considers the Rule—

(a) corrects a minor error in the Rules; or

(b) involves a non-material change to the Rules; or

(c) is in respect of any matter that is prescribed by the Regulations as a matter on which it may make a Rule on its own initiative.

(3) A Minister of a participating jurisdiction, after consulting with the Ministers of the other participating jurisdictions, may request the AEMC to make a jurisdictional derogation in respect of the jurisdiction of which he or she is a Minister.

(4) The Reliability Panel may only request the AEMC to make a Rule that relates to its functions.

Note—

Section 38(2) describes the functions of the Reliability Panel.

(5) A person conferred a right, or on whom an obligation is imposed, under the Rules (including a Registered participant) may request the AEMC to make a participant derogation that relates to, as the case requires—

(a) that person; or

(b) a class of person of which that person is a member.

(6) NEMMCO may itself, or on behalf of itself and a Registered participant or a class of Registered participant, request the AEMC to make a participant derogation that relates to (as the case requires)—

(a) it; or

(b) it and the Registered participant; or

92—Content of requests for a Rule

(1) A request for the making of a Rule—

(a) must contain the information prescribed by the Regulations; and

(b) may be accompanied by a draft of the Rule to be made.

(2) A request for the making of a participant derogation must specify a date on which the participant derogation, if made, will expire.

(3) A request for the making of a jurisdictional derogation may specify a date on which the jurisdictional derogation, if made, will expire.

93—More than one request in relation to same or related subject matter

If the AEMC receives more than one request for the making of a Rule in respect of the same subject matter or subject matters that are related subject matters, the AEMC may treat those requests as one request for the purposes of this Division.

94—Initial consideration of request for Rule

(1) As soon as practicable after receiving a request for the making of a Rule, the AEMC must consider whether—

(a) the request for the Rule appears to—

(i) contain the information prescribed by the Regulations; and

(ii) not be misconceived or lacking in substance; and

(b) the subject matter of the request appears to be for or with respect to a matter in respect of which the AEMC may make a Rule under this Law.

Note—

Section 34 and Schedule 1 to this Law specify the subject matter for Rules.

(2) If the AEMC considers that, having regard to the matters set out in subsection (1)(a) and (b), it should not take any action under this Division in respect of the request for the making of the Rule, the AEMC must make a decision to that effect and inform the person or body, in writing, that requested the Rule of that decision.

(3) A decision under subsection (2) must—

(a) set out the reasons for the decision; and

(b) be given to the person or body that made the request without delay.

(4) If the AEMC considers that, having regard to the matters set out in subsection (1)(a) and (b), it should take action under this Division in respect of the request for the making of the Rule, the AEMC must give notice of the request for the making of a Rule in accordance with section 95.

95—Notice of proposed Rule

(1) As soon as practicable after forming an intention to make an AEMC initiated Rule or considering that it should take action under this Division in respect of a request for the making of a Rule, the AEMC must publish—

South Australian Bills

NATIONAL ELECTRICITY (SOUTH AUSTRALIA) (NEW NATIONAL ELECTRICITY LAW) AMENDMENT BILL 2005