South Australian Consolidated Acts South Australian Consolidated ActsSchedule—National Electricity Law
Part 1—Preliminary
This Law may be referred to as the National Electricity Law.
In this Law—
access determination means a determination of the AER under Part 10;
access dispute has the meaning given by section 2A;
additional advisory functions —AEMO’s additional advisory
functions are as set out in section 50B(1);
additional Minister initiated Rules means Rules made under section 90A or
section 90B by the Minister in right of the Crown of South Australia
administering Part 2 of the National Electricity (South
Australia) Act 1996 of South Australia;
adoptive jurisdiction means (according to context)—
(a) a
participating jurisdiction for which AEMO is authorised to exercise its
additional advisory functions; or
(b) a
participating jurisdiction for which AEMO is authorised to exercise its
declared network functions;
AEMC means the Australian Energy Market Commission established by section 5 of
the Australian Energy Market Commission Establishment Act 2004 of South
Australia;
AEMC initiated Rule means a Rule of the kind referred to in
section 91(2);
AEMO amendments means—
(a) the
amendments to this Law made by the National Electricity (South Australia)
(National Electricity Law—Australian Energy Market Operator) Amendment
Act 2009 ; and
(b) the
amendments to the Rules made by the National Electricity (South Australia)
(National Electricity Rules—Australian Energy Market Operator) Amendment
Rules 2009 ;
AER means the Australian Energy Regulator established by section 44AE of the
Trade Practices Act 1974 of the Commonwealth;
AER economic regulatory decision means a decision (however described) of the
AER under this Law or the Rules performing or exercising an AER economic
regulatory function or power;
AER economic regulatory function or power means a function or power performed
or exercised by the AER under this Law or the Rules that relates to—
(a) the
economic regulation of services provided by—
(i)
a regulated distribution system operator by means of, or
in connection with, a distribution system; or
(ii)
a regulated transmission system operator or AEMO by means
of, or in connection with, a transmission system; or
(b) the
preparation of a network service provider performance report; or
(c) the
making of a transmission determination or distribution determination; or
(d) an
access determination;
application Act means an Act of a participating jurisdiction that applies, as
a law of that jurisdiction, this Law or any part of this Law;
associate in relation to a person has the same meaning it would have under
Division 2 of Part 1.2 of the Corporations Act 2001 of the Commonwealth
if sections 13, 16(2) and 17 did not form part of that Act;
augmentation of a transmission or distribution system means work to enlarge
the system or to increase its capacity to transmit or distribute electricity;
augmentation connection agreement means an agreement for connecting an
augmentation to a declared shared network;
Australian Energy Market Operator or AEMO means Australian Energy Market
Operator Limited (ACN 072 010 327);
Note—
Before its change of name, AEMO was known as NEMMCO.
changeover date means 1 July 2009 or some other date fixed as the changeover
date by Ministerial Gazette notice;
civil monetary liability means a liability for damages, compensation or any
other monetary amount that can be recovered by way of civil proceedings but
does not include a liability for a civil penalty or an infringement penalty
under this Law or a liability for the costs of a proceeding;
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;
declared network functions —AEMO's declared network functions are as set
out in section 50C(1);
declared power system of an adoptive jurisdiction has the meaning given by the
application Act of that jurisdiction;
declared shared network of an adoptive jurisdiction means the adoptive
jurisdiction’s declared transmission system excluding any part of it
that is a connection asset within the meaning of the Rules;
declared transmission system of an adoptive jurisdiction has the meaning given
by the application Act of that jurisdiction and includes any augmentation of
the defined declared transmission system;
declared transmission system operator of an adoptive jurisdiction has the
meaning given by the application Act of that jurisdiction;
direct control network service has the meaning given by section 2B;
Dispute resolution panel means a person or panel of persons appointed under
the Rules to hear and determine a rule dispute;
distribution determination means a determination of the AER under the Rules
that regulates any 1 or more of the following:
(a) the
terms and conditions for the provision of electricity network services that
are the subject of economic regulation under the Rules including the prices an
owner, controller or operator of a distribution system charges or may charge
for those services;
(b) the
revenue an owner, controller or operator of a distribution system earns or may
earn from the provision by that owner, controller or operator of electricity
network services that are the subject of economic regulation under the Rules;
distribution reliability standard means a standard imposed by or under the
Rules or jurisdictional electricity legislation relating to the reliability or
performance of a distribution system;
distribution service standard means a standard relating to the standard of
services provided by a regulated distribution system operator by means of, or
in connection with, a distribution system imposed—
(a) by
or under jurisdictional electricity legislation; or
(b) by
the AER in accordance with the Rules;
distribution system means the apparatus, electric lines, equipment, plant and
buildings used to convey or control the conveyance of electricity that the
Rules specify as, or as forming part of, a distribution system;
distribution system safety duty means a duty or requirement under an Act of a
participating jurisdiction, or any instrument made or issued under or for the
purposes of that Act, relating to—
(a) the
safe distribution of electricity in that jurisdiction; or
(b) the
safe operation of a distribution system in that jurisdiction;
draft Rule determination means a determination of the AEMC under
section 99;
electricity network service means a service provided by means of, or in
connection with, a transmission system or distribution system;
electricity services means services that are necessary or incidental to the
supply of electricity to consumers of electricity, including—
(a) the
generation of electricity;
(b)
electricity network services;
(c) the
sale of electricity;
end user means a person who acquires electricity or proposes to acquire
electricity for consumption purposes;
Federal Court means the Federal Court of Australia;
final Rule determination means a determination of the AEMC under
section 102;
form of regulation factors has the meaning given by section 2F;
general market information order means an order under section 53(1)(a)
requiring information from persons of a class specified in the order;
general regulatory information order has the meaning given by
section 28C;
initial National Electricity Rules means the National Electricity Rules made
under section 90;
interconnected national electricity system means the interconnected
transmission and distribution system in this jurisdiction and in the other
participating jurisdictions used to convey and control the conveyance of
electricity to which are connected—
(a)
generating systems and other facilities; and
(b)
loads settled through the wholesale exchange operated and administered by AEMO
under this Law and the Rules;
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 AEMO, 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
AEMO, in the participating jurisdiction to which the derogation relates;
jurisdictional electricity legislation means an Act of a participating
jurisdiction (other than national electricity legislation), or any instrument
made or issued under or for the purposes of that Act, that regulates the
generation, transmission, distribution, supply or sale of electricity in that
jurisdiction;
jurisdictional regulator means—
(a) if
this Law is applied as a law of the State of New South Wales—
(i)
the Independent Pricing and Regulatory Tribunal of New
South Wales established by section 5(1) of the Independent Pricing and
Regulatory Tribunal Act 1992 of New South Wales; or
(ii)
if the functions or powers of the Independent Pricing and
Regulatory Tribunal of New South Wales under this Law are transferred to the
AER by or under a law of New South Wales, the AER;
(b) if
this Law is applied as a law of the State of Victoria—
(i)
the Essential Services Commission established by
section 7(1) of the Essential Services Commission Act 2001 of Victoria;
or
(ii)
if the functions or powers of that Essential Services
Commission under this Law are transferred to the AER by or under a law of
Victoria, the AER;
(c) if
this Law is applied as a law of the State of Queensland—
(i)
the Queensland Competition Authority established by
section 7 of the Queensland Competition Authority Act 1997 of Queensland;
or
(ii)
if the functions or powers of the Queensland Competition
Authority under this Law are transferred to the AER by or under a law of
Queensland, the AER;
(d) if
this Law is applied as a law of the State of South Australia—
(i)
the Essential Services Commission established by
section 4(1) of the Essential Services Commission Act 2002 of South
Australia; or
(ii)
if the functions or powers of that Essential Services
Commission under this Law are transferred to the AER by or under a law of
South Australia, the AER;
(e) if
this Law is applied as a law of the Australian Capital Territory—
(i)
the Independent Competition and Regulatory Commission for
the Australian Capital Territory established by section 5(1) of the
Independent Competition and Regulatory Commission Act 1997 of the Australian
Capital Territory; or
(ii)
if the functions or powers of the Independent Competition
and Regulatory Commission for the Australian Capital Territory under this Law
are transferred to the AER by or under a law of the Australian Capital
Territory, the AER;
(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;
market information instrument means a general market information order or a
market information notice;
market information notice means a notice under section 53(1)(b) requiring
information from the person to whom the notice is addressed;
MCE means the Ministerial Council on Energy established on 8 June 2001, being
the Council of Ministers with primary carriage of energy matters at national
level comprising the Ministers representing the Commonwealth, the States, the
Australian Capital Territory and the Northern Territory, acting in accordance
with its own procedures;
MCE directed review means a review conducted by the AEMC under Division 4 of
Part 4;
MCE statement of policy principles means a statement of policy principles
issued by the MCE under section 8;
Ministerial Gazette notice means a notice in the South Australian Government
Gazette published by the South Australian Minister on the recommendation of
the MCE;
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 AEMO under this Law and the
Rules; and
(b) the
national electricity system;
national electricity objective means the objective set out in section 7;
National Electricity Rules or Rules means—
(a) the
initial National Electricity Rules; and
(ab)
additional Minister initiated Rules; and
(b)
Rules made by the AEMC under this Law, including Rules that amend or
revoke—
(i)
the initial National Electricity Rules or additional
Minister initiated Rules; or
(ii)
Rules made by it;
national electricity system means—
(a) the
generating systems and other facilities owned, controlled or operated in the
participating jurisdictions connected to the interconnected national
electricity system; and
(b) the
interconnected national electricity system;
national transmission grid means the transmission systems that form part of
the interconnected national electricity system;
National Transmission Planner means AEMO acting in the performance of NTP
functions;
negotiated network service has the meaning given by section 2C;
NEMMCO means National Electricity Market Management Company Limited
(ACN 072 010 327);
Note—
NEMMCO becomes AEMO (without change of corporate identity). A reference to
NEMMCO is a reference to AEMO before its change of name.
network agreement means the agreement required by section 50D(1);
network revenue or pricing determination means a distribution determination or
a transmission determination;
network service provider means a Registered participant registered for the
purposes of section 11(2) that owns, controls or operates a transmission
system or distribution system that forms part of the interconnected national
electricity system;
network service provider performance report means a report prepared by the AER
under section 28V;
network service user means a user who is provided with an electricity network
service;
NTP functions means the functions described in section 49(2);
offence provision means a provision of this Law the breach or contravention of
which by a person exposes that person to a finding of guilt by a court;
officer has the same meaning as officer has in relation to a corporation under
section 9 of the Corporations Act 2001 of the Commonwealth;
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 AEMO, that—
(a)
exempts, in a specified case or class of cases, that person or a class of
person of which that person is a member, or AEMO, from complying with a
provision, or a part of a provision, of the Rules, including a jurisdictional
derogation; or
(b)
modifies or varies the application of a provision of the Rules, including a
jurisdictional derogation, (with or without substitution of a provision of the
Rules or a part of a provision of the Rules) to that person or class of person
of which that person is a member, or AEMO;
participating jurisdiction means a 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;
prospective network service user means a person who seeks or wishes to be
provided with an electricity network service;
protected information has the meaning given by section 54(1);
recognised energy industry ombudsman means a body or person classified by
Regulation as a recognised energy industry ombudsman;
Registered participant means a person who is registered as such by AEMO under
this Law and the Rules or is registered as such by AEMO otherwise in
accordance with the Rules;
regulated distribution system operator means an owner, controller or operator
of a distribution system—
(a) who
is a Registered participant; and
(b)
whose revenue from, or prices that are charged for, the provision of
electricity network services are regulated under a distribution determination;
regulated network service provider means—
(a) a
regulated distribution system operator; or
(b) a
regulated transmission system operator;
regulated transmission system operator means an owner, controller or operator
of a transmission system—
(a) who
is a Registered participant; and
(b)
whose revenue from, or prices that are charged for, the provision of
electricity network services are regulated under a transmission determination;
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 information instrument means a general regulatory information order
or a regulatory information notice;
regulatory information notice has the meaning given by section 28D;
regulatory obligation or requirement has the meaning given by section 2D;
regulatory payment has the meaning given by section 2E;
relevant court means any court of this jurisdiction;
relevant participant means—
(a) a
Registered participant; or
(b)
AEMO; or
(c) a
person engaging in an activity in breach of section 11(1), (2), (3) or
(4); 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;
revenue and pricing principles means the principles set out in
section 7A;
shared network capability service means a service described in
section 50D(1) as a shared network capability service;
shared transmission service means a service classified under the Rules as a
shared transmission service;
statutory functions , in relation to AEMO, means functions or powers conferred
under—
(a)
this Law or the Rules; or
(b) the
National Gas Law, the National Gas Rules, or related subordinate legislation;
superseded jurisdictional rules means—
(a)
legislation (including subordinate legislation) of a participating
jurisdiction regulating the electricity industry in that jurisdiction
that—
(i)
was in force immediately before the changeover date; and
(ii)
is superseded by the AEMO amendments; and
(b) a
licence condition governing the activities of the licensee in, or in relation
to, an electricity market in a participating jurisdiction—
(i)
in force immediately before the changeover date; and
(ii)
superseded by the AEMO amendments; and
(c) a
guideline, code, standard or other instrument governing the operation or
regulation of an electricity market in a participating jurisdiction—
(i)
made or issued by the jurisdictional regulator; and
(ii)
in force immediately before the changeover date; and
(iii)
superseded by the AEMO amendments;
transmission determination means a determination of the AER under the Rules
that regulates any 1 or more of the following:
(a) the
terms and conditions for the provision of electricity network services that
are the subject of economic regulation under the Rules including the prices an
owner, controller or operator of a transmission system charges or may charge
for those services;
(b) the
revenue an owner, controller or operator of a transmission system earns or may
earn from the provision by that owner, controller or operator of electricity
network services that are the subject of economic regulation under the Rules;
transmission reliability standard means a standard imposed by or under the
Rules or jurisdictional electricity legislation relating to the reliability or
performance of a transmission system;
transmission service standard means a standard relating to the standard of
services provided by a regulated transmission system operator by means of, or
in connection with, a transmission system imposed—
(a) by
or under jurisdictional electricity legislation; or
(b) by
the AER in accordance with the Rules;
transmission system means the apparatus, electric lines, equipment, plant and
buildings used to convey or control the conveyance of electricity that the
Rules specify as, or forming part of, a transmission system;
transmission system safety duty means a duty or requirement under an Act of a
participating jurisdiction, or any instrument made or issued under or for the
purposes of that Act, relating to—
(a) the
safe transmission of electricity in that jurisdiction; or
(b) the
safe operation of a transmission system in that jurisdiction;
Tribunal means the Australian Competition Tribunal referred to in the Trade
Practices Act 1974 of the Commonwealth and includes a member of the Tribunal
or a Division of the Tribunal performing functions of the Tribunal;
VENCorp means the Victorian Energy Networks Corporation continued under Part 8
of the Gas Industry Act 2001 of Victoria until the AEMO amendments came into
force.
An access dispute is a dispute between—
(a) a
network service user or prospective network service user; and
(b) a
network service provider,
about an aspect of access to an electricity network service specified by the
Rules to be an aspect to which Part 10 applies.
2B—Meaning of direct control network service
A direct control network service is an electricity network service—
(a) the
Rules specify as a service the price for which, or the revenue to be earned
from which, must be regulated under a distribution determination or
transmission determination; or
(b) if
the Rules do not do so, the AER specifies, in a distribution determination or
transmission determination, as a service the price for which, or the revenue
to be earned from which, must be regulated under the distribution
determination or transmission determination.
2C—Meaning of negotiated network service
A negotiated network service is an electricity network service—
(a) that
is not a direct control network service; and
(b)
that—
(i)
the Rules specify as a negotiated network service; or
(ii)
if the Rules do not do so, the AER specifies as a
negotiated network service in a distribution determination or transmission
determination.
2D—Meaning of regulatory obligation or requirement
(1) A regulatory
obligation or requirement is—
(a) in
relation to the provision of an electricity network service by a regulated
network service provider—
(i)
a distribution system safety duty or transmission system
safety duty; or
(ii)
a distribution reliability standard or transmission
reliability standard; or
(iii)
a distribution service standard or transmission service
standard; or
(b) an
obligation or requirement under—
(i)
this Law or Rules; or
(ii)
an Act of a participating jurisdiction, or any instrument
made or issued under or for the purposes of that Act, that levies or imposes a
tax or other levy that is payable by a regulated network service provider; or
(iii)
an Act of a participating jurisdiction, or any instrument
made or issued under or for the purposes of that Act, that regulates the use
of land in a participating jurisdiction by a regulated network service
provider; or
(iv)
an Act of a participating jurisdiction or any instrument
made or issued under or for the purposes of that Act that relates to the
protection of the environment; or
(v)
an Act of a participating jurisdiction, or any instrument
made or issued under or for the purposes of that Act (other than national
electricity legislation or an Act of a participating jurisdiction or an Act or
instrument referred to in subparagraphs (ii) to (iv)), that materially
affects the provision, by a regulated network service provider, of electricity
network services that are the subject of a distribution determination or
transmission determination.
(2) A regulatory
obligation or requirement does not include an obligation or requirement to pay
a fine, penalty or compensation—
(a) for
a breach of—
(i)
a distribution system safety duty or transmission system
safety duty; or
(ii)
a distribution reliability standard or transmission
reliability standard; or
(iii)
a distribution service standard or transmission service
standard; or
(b)
under this Law or the Rules or an Act or an instrument referred to in
subsection (1)(b)(ii) to (v).
Note—
See also section 7A(2)(b).
2E—Meaning of regulatory payment
A regulatory payment is a sum that a regulated network service provider has
been required or allowed to pay to a network service user or an end user for a
breach of, as the case requires—
(a) a
distribution reliability standard or transmission reliability standard; or
(b) a
distribution service standard or transmission service standard,
because it was efficient for the regulated network service provider (in terms
of the provider's overall business) to pay that sum.
Note—
See also section 7A(2)(b).
The form of regulation factors are—
(a) the
presence and extent of any barriers to entry in a market for electricity
network services;
(b) the
presence and extent of any network externalities (that is, interdependencies)
between an electricity network service provided by a network service provider
and any other electricity network service provided by the network service
provider;
(c) the
presence and extent of any network externalities (that is, interdependencies)
between an electricity network service provided by a network service provider
and any other service provided by the network service provider in any other
market;
(d) the
extent to which any market power possessed by a network service provider is,
or is likely to be, mitigated by any countervailing market power possessed by
a network service user or prospective network service user;
(e) the
presence and extent of any substitute, and the elasticity of demand, in a
market for an electricity network service in which a network service provider
provides that service;
(f) the
presence and extent of any substitute for, and the elasticity of demand in a
market for, electricity or gas (as the case may be);
(g) the
extent to which there is information available to a prospective network
service user or network service user, and whether that information is
adequate, to enable the prospective network service user or network service
user to negotiate on an informed basis with a network service provider for the
provision of an electricity network service to them by the network service
provider.
Schedule 2 to this Law applies to this Law, the Regulations and the Rules and
any other statutory instrument made under this Law.
Schedule 3 to this Law has effect.
(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.
7—National electricity objective
The objective of this Law is to promote efficient investment in, and efficient
operation and use of, electricity services for the long term interests of
consumers of electricity with respect to—
(a)
price, quality, safety, reliability and security of supply of electricity; and
(b) the
reliability, safety and security of the national electricity system.
7A—Revenue and pricing principles
(1) The revenue and
pricing principles are the principles set out in subsections (2) to (7).
(2) A regulated
network service provider should be provided with a reasonable opportunity to
recover at least the efficient costs the operator incurs in—
(a)
providing direct control network services; and
(b)
complying with a regulatory obligation or requirement or making a regulatory
payment.
(3) A regulated
network service provider should be provided with effective incentives in order
to promote economic efficiency with respect to direct control network services
the operator provides. The economic efficiency that should be promoted
includes—
(a)
efficient investment in a distribution system or transmission system with
which the operator provides direct control network services; and
(b) the
efficient provision of electricity network services; and
(c) the
efficient use of the distribution system or transmission system with which the
operator provides direct control network services.
(4) Regard should be
had to the regulatory asset base with respect to a distribution system or
transmission system adopted—
(a) in
any previous—
(i)
as the case requires, distribution determination or
transmission determination; or
(ii)
determination or decision under the National Electricity
Code or jurisdictional electricity legislation regulating the revenue earned,
or prices charged, by a person providing services by means of that
distribution system or transmission system; or
(b) in
the Rules.
(5) A price or charge
for the provision of a direct control network service should allow for a
return commensurate with the regulatory and commercial risks involved in
providing the direct control network service to which that price or charge
relates.
(6) Regard should be
had to the economic costs and risks of the potential for under and over
investment by a regulated network service provider in, as the case requires, a
distribution system or transmission system with which the operator provides
direct control network services.
(7) Regard should be
had to the economic costs and risks of the potential for under and over
utilisation of a distribution system or transmission system with which a
regulated network service provider provides direct control network services.
8—MCE statements of policy principles
(1) Subject to this
section, the MCE may issue a statement of policy principles in relation to any
matters that are relevant to the exercise and performance by the AEMC of its
functions and powers in—
(a)
making a Rule; or
(b)
conducting a review under section 45.
(2) Before issuing a
statement of policy principles, the MCE must be satisfied that the statement
is consistent with the national electricity objective.
(3) As soon as
practicable after issuing a statement of policy principles, the MCE must give
a copy of the statement to the AEMC.
(4) The AEMC must
publish the statement in the South Australian Government Gazette and on its
website as soon as practicable after it is given a copy of the statement.
9—National Electricity Rules 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
Division 1—Registration
11—Electricity market activities in this jurisdiction
(1) A person must not
engage in the activity of owning, controlling or operating, in
this jurisdiction, a generating system connected to the interconnected
national electricity system unless—
(a) the
person is a Registered participant in relation to that activity; or
(b) the
person is the subject of a derogation that exempts the person, or is otherwise
exempted by AEMO, from the requirement to be a Registered participant in
relation to that activity under this 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, in
this jurisdiction, a transmission system or distribution system that forms
part of the interconnected national electricity system unless—
(a) the
person is a Registered participant in relation to that activity; or
(b) the
person is the subject of a derogation that exempts the person, or is otherwise
exempted by the AER, from the requirement to be a Registered participant in
relation to that activity under this 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 AEMO, must not engage in the activity of operating or administering, in
this jurisdiction, 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, in this jurisdiction, the activity of purchasing electricity
directly through a wholesale exchange unless—
(a) the
person is a Registered participant in relation to that activity; or
(b) the
person is the subject of a derogation that exempts the person, or is otherwise
exempted by AEMO, from the requirement to be a Registered participant in
relation to that activity under this Law and the Rules.
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 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 AEMO 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 AEMO 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, AEMO may, subject to the Rules, register the person in such
categories of registration as are specified in the Rules.
(5) On receipt of a
request under subsection (2) to be exempted from being registered as a
Registered participant, AEMO may, subject to the Rules, grant the person the
exemption.
(6) Registration as a
Registered participant under subsection (4) or an exemption granted under
subsection (5) may be subject to such terms and conditions as AEMO
considers appropriate in accordance with the Rules.
13—Exemptions for transmission system or distribution system owners,
controllers and operators
(1) A person engaged
or proposing to engage in the activity referred to in 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 of registration or exemption
(1) A certificate
signed by an authorised officer certifying that a person named in the
certificate is a Registered participant, or has been granted an exemption from
registration under section 12 or 13 is evidence of the registration or
exemption.
Note—
A certificate may be in respect of a Registered participant registered in
accordance with section 12 and the Rules, or in accordance with the Rules
alone.
(2) In this
section—
authorised officer means—
(a) for
issuing a certificate that a person is a Registered participant or exempted
from registration under section 12—AEMO’s CEO or a person
authorised by AEMO’s CEO to issue certificates under this section; or
(b) for
issuing a certificate that a person is exempted from registration under
section 13—a member of the AER.
Division 2—Regulated network service providers
14A—Regulated transmission system operator must comply with transmission
determination
A regulated transmission system operator must comply with a transmission
determination that applies to the electricity network services provided by
that operator.
Note—
Section 14A is a civil penalty provision: See the definition of civil
penalty provision in section 58.
14B—Regulated distribution system operator must comply with distribution
determination
A regulated distribution system operator must comply with a distribution
determination that applies to the electricity network services provided by
that operator.
Note—
Section 14B is a civil penalty provision: See the definition of civil
penalty provision in section 58.
Part 3—Functions and powers of the Australian Energy Regulator
Division 1—General
15—Functions and powers of AER
(1) The AER has the
following functions and powers—
(a) to
monitor compliance by—
(i)
Registered participants and other persons with this Law,
the Regulations and the Rules; and
(ii)
regulated network service providers with network revenue
or pricing determinations; and
(iii)
AEMO with this Law, the Rules, the Regulations or a
transmission determination; and
(b) to
investigate breaches or possible breaches of provisions of this Law, the
Regulations or the Rules, including offences against this Law; and
(c) to
institute and conduct proceedings—
(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; or
(iv)
in relation to offences against 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
(ea) to
prepare and publish reports on the financial and operational performance of
network service providers in providing electricity network services; and
(eb) to
approve compliance programs of service providers relating to compliance by
service providers with this Law or the Rules; and
(f) AER
economic regulatory functions or powers; and
(g) any
other functions and powers conferred on it under this Law and the Rules.
(2) The AER has the
power to do all things necessary or convenient to be done for or in connection
with the performance of its functions.
(3) However, the
AER—
(a)
cannot make a transmission determination—
(i)
regulating the revenue AEMO earns or may earn; or
(ii)
regulating the price of electricity network services
provided by AEMO unless the services are shared transmission services provided
by means of, or in connection with, a declared shared network; and
(b)
cannot regulate by transmission determination or in any other way the price of
any other service provided by AEMO, or the amount of any other charge made by
AEMO.
16—Manner in which AER performs AER economic regulatory functions or
powers
(1) The AER must, in
performing or exercising an AER economic regulatory function or power—
(a)
perform or exercise that function or power in a manner that will or is likely
to contribute to the achievement of the national electricity objective; and
(b) if
the function or power performed or exercised by the AER relates to the making
of a distribution determination or transmission determination, ensure that the
regulated network service provider to whom the determination will apply, any
affected Registered participant and, if AEMO is affected by the determination,
AEMO, are, in accordance with the Rules—
(i)
informed of material issues under consideration by the
AER; and
(ii)
given a reasonable opportunity to make submissions in
respect of that determination before it is made.
(2) In addition, the
AER—
(a) must
take into account the revenue and pricing principles—
(i)
when exercising a discretion in making those parts of a
distribution determination or transmission determination relating to direct
control network services; or
(ii)
when making an access determination relating to a rate or
charge for an electricity network service; and
(b) may
take into account the revenue and pricing principles when performing or
exercising any other AER economic function or power, if the AER considers it
appropriate to do so.
(3) For the purposes
of subsection (2)(a)(ii), a reference to a "direct control network
service" in the revenue and pricing principles must be read as a reference to
an "electricity network service".
(4) In this
section—
affected Registered participant means a Registered participant (other than the
regulated network service provider to whom the distribution determination or
transmission determination will apply) whose interests are affected by the
distribution determination or transmission determination.
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.
Section 44AAF of the Trade Practices Act 1974 of the Commonwealth has effect
for the purposes of this Law, the Regulations and the Rules as if it formed
part of this Law.
Note—
See also Division 6.
Division 2—Search warrants
In this Division—
authorised person means a person authorised under section 20;
relevant provision means a provision of this Law, the Regulations or the
Rules.
(1) The AER may, in
writing, authorise a person that the AER considers is suitably qualified or
trained to be an authorised person for the purposes of this Division.
(2) An authorised
person must comply with any direction of the AER in exercising powers or
functions as an authorised person.
(1) The AER must issue
an identity card to an authorised person.
(2) The identity card
must contain the name, a recent photograph and the signature of the authorised
person.
(3) An authorised
person must carry the identity card at all times when exercising powers or
performing functions as an authorised person.
(4) An authorised
person must produce his or her identity card for inspection—
(a)
before exercising a power as an authorised person; or
(b) at
any time during the exercise of a power as an authorised person, if asked to
do so.
If a person to whom an identity card has been issued ceases to be an
authorised person, the person must return the identity card to the AER as soon
as practicable.
Maximum penalty: $500.
(1) An authorised
person may apply to a magistrate for the issue of a search warrant in relation
to a particular place if the person—
(a)
believes on reasonable grounds that—
(i)
there is or has been or will be a breach of a relevant
provision; and
(ii)
there is or may be a thing or things of a particular kind
connected with that breach on or in that place; or
(b)
reasonably suspects that—
(i)
there may have been a breach of a relevant provision; and
(ii)
there is or may be a thing or things of a particular kind
connected with that breach on or in that place.
(2) If a magistrate is
satisfied by the evidence, on oath or by affidavit, of an authorised person
that there are reasonable grounds for suspecting that there is, or may be
within the next 7 days, a thing or things of a particular kind connected with
a breach or possible breach of a relevant provision on or in a place, the
magistrate may issue a search warrant authorising an authorised person named
in the warrant—
(a) to
enter the place specified in the warrant, with such assistance and by the use
of such force as is necessary and reasonable;
(b) to
search the place or any part of the place;
(c) to
search for and seize a thing named or described in the warrant and which the
person believes on reasonable grounds to be connected with the breach or
possible breach of the relevant provision;
(d) to
inspect, examine or record an image of anything in the place;
(e) to
take extracts from, and make copies of, any documents in the place;
(f) to
take into the place such equipment and materials as the person requires for
exercising the powers.
(3) A search warrant
issued under this section must state—
(a) the
purpose for which the search is required and the nature of the suspected
breach of the relevant provision; and
(b) any
conditions to which the warrant is subject; and
(c)
whether entry is authorised to be made at any time of the day or night or
during stated hours of the day or night; and
(d) a
day, not later than 7 days after the issue of the warrant, on which the
warrant ceases to have effect.
(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 of entry and details of warrant to be given to occupier
or other person at premises
(1) This section
applies if the occupier or another person who apparently represents the
occupier is present at premises when a search warrant is being executed.
(2) The authorised
person executing the warrant must—
(a)
identify himself or herself to that person; and
(b)
announce that he or she is authorised by the warrant to enter the place; and
(c)
before using force to enter, give the person an opportunity to allow entry;
and
(d) give
the person a copy of the warrant.
(3) The authorised
person executing the warrant is not entitled to exercise any powers under the
warrant in relation to premises if the authorised person does not comply with
subsection (2).
An authorised person executing a warrant need not comply with section 22
if he or she believes on reasonable grounds that immediate entry to premises
is required to ensure—
(a) the
safety of any person; or
(b) that
the effective execution of the search warrant is not frustrated.
(1) If an authorised
person executing a warrant retains possession of a document seized from a
person in accordance with the warrant, the authorised person must give that
other person, within 21 days of the seizure, a copy of the document certified
as correct by the authorised person executing the warrant.
(2) A copy of a
document certified under subsection (1) shall be received in all relevant
courts and all tribunals as evidence of equal validity to the original.
25—Retention and return of seized documents or things
(1) If an authorised
person executing a warrant seizes a document or other thing in accordance with
the warrant, the authorised person must if he or she is not a person employed
by the AER, give the document or other thing seized to the AER.
(2) The AER must take
reasonable steps to return the document or thing to the person from whom it
was seized if the reason for its seizure no longer exists.
(3) If the document or
thing seized has not been returned within 3 months after it was seized,
the AER must take reasonable steps to return it unless—
(a)
proceedings for the purpose for which the document or thing was retained have
commenced within that 3 month period and those proceedings (including any
appeal) have not been completed; or
(b) a
magistrate makes an order under section 26 extending the period during
which the document or thing may be retained.
26—Extension of period of retention of documents or things seized
(1) The AER may apply
to a magistrate—
(a)
within 3 months after a document or other thing was seized in accordance with
a warrant; or
(b) if
an extension has been granted under this section, before the end of the period
of the extension,
for an extension of the period for which the AER may retain the document or
thing but so that the total period of retention does not exceed 12 months.
(2) An application
must be made before proceedings for the purpose for which the document or
thing was retained have been commenced.
(3) A magistrate may
order such an extension if he or she is satisfied that—
(a) it
is in the interests of justice; and
(b) the
total period of retention does not exceed 12 months; and
(c)
retention of the document or other thing is necessary—
(i)
for the purposes of an investigation into whether a
breach of a relevant provision has occurred; or
(ii)
to enable evidence of a breach of a relevant provision to
be obtained for the purposes of a proceeding under this 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 person authorised to enter
A person must not, without reasonable excuse, obstruct or hinder an authorised
person in the exercise of a power under a search warrant under this Division.
Maximum penalty:
(a) in
the case of natural person—$2 000;
(b) in
the case of a body corporate—$10 000.
Division 3—General information gathering powers
28—Power to obtain information and documents in relation to performance
and exercise of functions and powers
(1) If the AER has
reason to believe that a person is capable of providing information or
producing a document that the AER requires for the performance or exercise of
a function or power conferred on it under this Law or the Rules, the AER may,
by notice in writing, serve on that person a notice (a relevant notice ).
(2) A relevant notice
may require the person to—
(a)
provide to the AER, by writing signed by that person or, in the case of a body
corporate, by a competent officer of the body corporate, within the time and
in the manner specified in the notice, any information of the kind referred to
in subsection (1); or
(b)
produce to the AER, or to a person specified in the notice acting on its
behalf, in accordance with the notice, any documents of the kind referred to
in subsection (1).
(3) A person on whom a
relevant notice is served must comply with the relevant notice unless the
person has a reasonable excuse.
Maximum penalty:
(a) in
the case of a natural person—$2 000;
(b) in
the case of a body corporate—$10 000.
(4) A person must not,
in purported compliance with a relevant notice, provide information that the
person knows is false or misleading in a material particular.
Maximum penalty:
(a) in
the case of a natural person—$2 000;
(b) in
the case of a body corporate—$10 000.
(5) It is a reasonable
excuse for the purposes of subsection (3) if the person served the
relevant notice is not capable of complying with that notice.
(6) It is a reasonable
excuse for a natural person to—
(a) fail
to provide information of the kind referred to in subsection (1) to the
AER; or
(b) fail
to produce a document of the kind referred to in subsection (1) to the
AER, or to a person specified in a relevant notice acting on behalf of the
AER,
if to do so might tend to incriminate the person, or make the person liable to
a criminal penalty, under a law of this jurisdiction or another jurisdiction
in Australia (whether or not that other jurisdiction is a participating
jurisdiction).
(7) It is not a
reasonable excuse for a person to—
(a) fail
to provide information of the kind referred to in subsection (1) to the
AER; or
(b) fail
to produce a document of the kind referred to in subsection (1) to the
AER, or to a person specified in a relevant notice acting on behalf of the
AER,
on the ground of any duty of confidence.
(8) This section does
not require a person to—
(a)
provide information that is the subject of legal professional privilege; or
(b)
produce a document the production of which would disclose information that is
the subject of legal professional privilege.
(9) This section does
not require a person to—
(a)
provide information that would disclose the contents of a document prepared
for the purposes of a meeting of the Cabinet or a committee of the Cabinet of
the Commonwealth or of a State or a Territory; or
(b)
produce a document prepared for the purposes of a meeting of the Cabinet or a
committee of the Cabinet of the Commonwealth or of a State or a Territory; or
(c)
provide information, or produce a document, that would disclose the
deliberations of the Cabinet or a committee of the Cabinet of the Commonwealth
or of a State or a Territory.
(10) A person incurs,
by complying with a relevant notice, no liability for breach of contract,
breach of confidence or any other civil wrong.
Division 4—Regulatory information notices and general regulatory
information orders
Subdivision 1—Interpretation
In this Division—
contributing service has the meaning given by section 28B;
related provider means a person who supplies a contributing service to a
regulated network service provider.
28B—Meaning of contributing service
(1) A contributing
service is a service that the AER, in accordance with this section, decides is
a service that contributes in a material way to the provision of an
electricity network service by a regulated network service provider.
(2) In deciding
whether a service is a service that contributes in a material way to the
provision of an electricity network service by a regulated network service
provider, the AER must have regard to—
(a) the
nature and kind of the service;
(b) when
the service was first supplied;
(c) the
nature and extent of the contribution of the service relative to—
(i)
the electricity network service; and
(ii)
all other services supplied by the regulated network
service provider;
(d)
whether the service was previously supplied—
(i)
by the regulated network service provider; or
(ii)
directly or indirectly by an associate of the regulated
network service provider;
(e)
whether the service, together with other services, contributes in a material
way to the provision of electricity network services;
(f) any
other matter specified under the Rules.
28C—Meaning of general regulatory information order
A general regulatory information order is an order made by the AER in
accordance with this Division that requires each regulated network service
provider of a specified class, or each related provider of a specified class,
to do either or both of the following:
(a)
provide to the AER the information specified in the order;
(b)
prepare, maintain or keep information specified in the notice in a manner and
form specified in the order.
28D—Meaning of regulatory information notice
A regulatory information notice is a notice prepared and served by the AER in
accordance with this Division that requires the regulated network service
provider, or a related provider, named in the notice to do either or both of
the following:
(a)
provide to the AER the information specified in the notice;
(b)
prepare, maintain or keep information specified in the notice in a manner and
form specified in the notice.
28E—Division does not limit operation of information gathering powers
under Division 3
This Division does not limit the operation of Division 3.
Subdivision 2—Serving and making of regulatory information instruments
28F—Service and making of regulatory information instrument
(1) Subject to this
Division, the AER, if it considers it reasonably necessary for the performance
or exercise of its functions or powers under this Law or the Rules, may—
(a)
serve a regulatory information notice on a regulated network service provider
or a related provider; or
(b) make
a general regulatory information order.
(2) In considering
whether it is reasonably necessary to serve a regulatory information notice,
or make a general regulatory information order, the AER must have regard
to—
(a) the
matter to be addressed by—
(i)
the service of the regulatory information notice; or
(ii)
the making of the general regulatory information order;
and
(b) the
likely costs that may be incurred by an efficient network service provider or
efficient related provider in complying with the notice or order.
Note—
The AER must also exercise its powers under this section in a manner that will
or is likely to contribute to the achievement of the national electricity
objective: see section 16.
(3) A regulatory
information notice must not be served, or a general regulatory information
order must not be made, solely for the purpose of—
(a)
investigating breaches or possible breaches of provisions of this Law, the
Regulations or the Rules, including offences against this Law; or
(b)
instituting and conducting proceedings in relation to breaches of provisions
of this Law, the Regulations or the Rules, including offences against
this Law; or
(c)
instituting and conducting appeals from decisions in proceedings referred to
in paragraph (b); or
(d)
collecting information for the preparation of a service provider performance
report; or
(e) any
application for review of a decision of the AER under Division 3A of Part 6.
28G—Additional matters to be considered for related provider regulatory
information instruments
(1) This section
applies if the AER is intending to—
(a)
serve a regulatory information notice on a related provider; or
(b) make
a general regulatory information order that will apply to a class of related
providers.
(2) In addition to the
matters set out in section 28F(2), the AER, in considering whether it is
reasonably necessary to serve the regulatory information notice, or make the
general regulatory information order, must have regard to—
(a)
whether the regulated network service provider being supplied a contributing
service by the related provider or related providers to which the intended
regulatory information instrument will apply can—
(i)
provide the information to be specified in that
instrument; or
(ii)
prepare, maintain or keep the information to be specified
in the particular manner and form to be specified in that instrument; and
(b) the
extent to which the related provider or related providers to which the
intended regulatory information instrument will apply is, or are, supplying a
contributing service on a genuinely competitive basis; and
(c) the
nature of any ownership or control between—
(i)
the regulated network service provider being supplied a
contributing service by a related provider to which the intended regulatory
information instrument will apply; and
(ii)
that related provider; and
(d) the
nature of any ownership or control as between different related providers
supplying the contributing service to the regulated network service provider;
and
(e) any
other matter the AER considers relevant.
(3) For the purposes
of subsection (2)(b), in considering whether a contributing service is
being supplied on a genuinely competitive basis, the AER may take into
account—
(a)
whether there is effective competition in the market for the supply of the
contributing service; and
(b)
whether the related provider supplies the contributing service to a regulated
network service provider under a contract, arrangement or understanding
entered into with that regulated network service provider following a
competitive process for the awarding of the right to enter into that contract,
arrangement or understanding involving persons who were not associates of the
regulated network service provider.
28H—AER must consult before publishing a general regulatory information
order
The AER must, in accordance with the Rules, consult with the public in
relation to the general regulatory information order it proposes to make
before it makes that order.
Note—
See also section 28ZC about what the AER must and may do after receiving
submissions.
28I—Publication requirements for general regulatory information orders
(1) A general
regulatory information order made under section 28F(1)(b) must be
published on the AER's website as soon as practicable after it is made.
(2) Notice of the
making of a general regulatory information order must be published in a
newspaper circulating generally throughout Australia as soon as practicable
after the general regulatory information order is made.
28J—Opportunity to be heard before regulatory information notice is
served
(1) The AER, before
serving a regulatory information notice, must—
(a)
notify, in writing, the regulated network service provider, or the related
provider, on whom the AER intends to serve the regulatory information notice
of its intention to do so; and
(b) give
the regulated network service provider a draft of the regulatory information
notice it intends to serve.
(2) If the regulatory
information notice to be served is an urgent notice, the AER must, in a notice
under subsection (1)—
(a)
identify the regulatory information notice to be served as an urgent notice;
and
(b) give
its reasons, in writing, why the regulatory information notice to be served is
an urgent notice.
(3) A regulatory
information notice is an urgent notice if—
(a)
under the notice the AER will require the regulated network service provider
or related provider to provide information to the AER; and
(b) that
requirement has arisen because the AER considers it must deal with or address
a particular matter or thing in order for it to make an AER economic
regulatory decision; and
(c) the
AER considers that, having regard to the time within which it must make that
AER economic regulatory decision, the time within which the AER requires the
information is of the essence.
(4) A notice under
subsection (1) must—
(a)
invite the regulated network service provider, or the related provider, to
make written representations to the AER as to whether the AER should serve the
regulatory information notice on them; and
(b)
specify the period within which the regulated network service provider, or the
related provider, may make the representations.
(5) The period that
must be specified in accordance with subsection (4) must be—
(a) in
the case of an urgent notice to be served—a period of not less than 5
business days and not more than 10 business days calculated from the date of
the notice under subsection (1);
(b) in
all other cases—a period of at least 20 business days calculated from
the date of the notice under subsection (1).
(6) The AER must
consider the written representations made in accordance with a notice under
subsection (1) before making its decision in accordance with this
Division to serve the regulatory information notice.
Subdivision 3—Form and content of regulatory information instruments
28K—Form and content of regulatory information instrument
(1) A regulatory
information instrument—
(a) must
specify the information required to be—
(i)
provided to the AER;
(ii)
prepared, maintained or kept in the particular manner and
form specified in the instrument; and
(b) may
specify the manner and form in which the information described in the
instrument is required to be—
(i)
provided to the AER;
(ii)
prepared, maintained or kept; and
(c) must
state the reasons of the AER for requiring the information described in the
instrument to be—
(i)
provided to the AER;
(ii)
prepared, maintained or kept in the particular manner and
form specified in the instrument; and
(d) in
the case of an instrument requiring information to be provided to the AER,
must specify when the information must be provided.
(2) In the case of a
regulatory information notice, the notice must name the regulated network
service provider or the related provider to whom it applies.
(3) In the case of a
general regulatory information order, the order must specify the class of
regulated network service provider, or related provider, to whom the order
applies.
28L—Further provision about the information that may be specified in a
regulatory information instrument
Without limiting section 28K(1)(a), the information that may be required
to be provided to the AER, or to be prepared, maintained or kept, may
include—
(a)
historic, current and forecast information (including financial information);
(b)
information that is or may be derived from other information in the possession
or control of the service provider or the related provider to whom the
instrument applies;
(c)
information to enable the AER to verify whether the regulated network service
provider to whom the instrument applies is or has been complying with a
requirement under the Rules relating to—
(i)
the operational and structural separation of a regulated
network service provider's business; or
(ii)
arrangements between a regulated network service provider
and an associate that provides electricity network services;
(d)
information to enable the AER to verify compliance with any requirements for
the allocation of costs between electricity services under—
(i)
the Rules; or
(ii)
a network revenue or pricing determination.
28M—Further provision about manner in which information must be provided
to AER or kept
Without limiting section 28K(1)(b), a regulatory information instrument
may require that the information specified in the instrument—
(a) be
provided to the AER, or prepared, maintained or kept, on an annual basis or
some other basis, including on the occurrence of a specified event or a state
of affairs;
(b) be
provided to the AER, or prepared, maintained or kept, in accordance with
specified Rules;
(c) be
provided to the AER, or prepared, maintained or kept, in accordance with any
document, code, standard, rule, specification or method formulated, issued,
prescribed or published by the AER or any person, authority or body
whether—
(i)
wholly or partially or as amended by the instrument; or
(ii)
as formulated, issued, prescribed or published at the
time the instrument is served or published or at any time before the
instrument is served or published; or
(iii)
as amended from time to time;
Example—
The AER may require a service provider to provide information in a form and
manner that complies with relevant accounting standards.
(d) be
verified by way of statutory declaration by an officer of the regulated
network service provider, or of a related provider, to whom the instrument
applies;
(e) be
audited—
(i)
by a class of person specified in the instrument before
it is provided to the AER; and
(ii)
at the expense of the regulated network service provider
or related provider to whom the instrument applies.
Subdivision 4—Compliance with regulatory information instruments
28N—Compliance with regulatory information notice that is served
On being served a regulatory information notice, a person named in the notice
must comply with the notice.
28O—Compliance with general regulatory information order
(1) On publication of
a general regulatory information order in accordance with section 28I(1),
a person who is a member of the class of person to which a general regulatory
information order applies must comply with the order.
(2)
Subsection (1) does not apply to a person who has been given an exemption
under section 28P.
28P—Exemptions from compliance with general regulatory information order
(1) The AER may exempt
a person, or a class of person, from complying with section 28O—
(a)
unconditionally or on specified conditions; or
(b)
wholly or to the extent as is specified in the exemption.
(2) An exemption under
this section must be in writing.
28Q—Assumptions where there is non-compliance with regulatory
information instrument
(1) This section
applies if—
(a)
under a regulatory information instrument the AER—
(i)
requires a regulated network service provider to provide
information to the AER for the purpose of enabling the AER to make an AER
economic regulatory decision relating to the regulated network service
provider; or
(ii)
requires a related provider to provide information to the
AER that is relevant to the making of an AER economic regulatory decision
relating to a regulated network service provider; and
(b) the
regulated network service provider or related provider—
(i)
does not provide the information to the AER in accordance
with the applicable regulatory information instrument; or
(ii)
provides information that is insufficient (when compared
to what was requested under the applicable regulatory information instrument).
(2) Without limiting
sections 28N and 28O and despite anything to the contrary in this Law or
the Rules, the AER—
(a) may
make the AER economic regulatory decision on the basis of the information the
AER has at the time it makes that decision; and
(b) in
making that decision, may make reasonable assumptions (including assumptions
adverse to the interests of the regulated network service provider) in respect
of the matters the information required under the regulatory information
instrument would have addressed had that information been provided as
required.
Subdivision 5—General
28R—Providing to AER false and misleading information
A person must not, in purported compliance with a regulatory information
instrument requiring the person to provide information to the AER, provide
information to the AER that the person knows is false or misleading in a
material particular.
Maximum penalty:
(a) in
the case of a natural person—$2 000;
(b) in
the case of a body corporate—$10 000.
28S—Person cannot rely on duty of confidence to avoid compliance with
regulatory information instrument
(1) A person must not
refuse to comply with a regulatory information instrument on the ground of any
duty of confidence.
(2) A person incurs,
by complying with a regulatory information instrument, no liability for breach
of contract, breach of confidence or any other civil wrong.
28T—Legal professional privilege not affected
A regulatory information instrument, and sections 28N and 28O, are not to
be taken as requiring a person to—
(a)
provide to the AER information that is the subject of legal professional
privilege; or
(b)
produce a document to the AER the production of which would disclose
information that is the subject of legal professional privilege.
28U—Protection against self-incrimination
(1) It is a reasonable
excuse for a natural person to whom section 28N applies not to comply
with a regulatory information notice served on the person requiring the person
to provide information to the AER if to do so might tend to incriminate the
person, or make the person liable to a criminal penalty, under a law of
this jurisdiction or another jurisdiction in Australia (whether or not that
other jurisdiction is a participating jurisdiction).
(2) It is a reasonable
excuse for a natural person to whom section 28O applies not to comply
with a general regulatory information order made requiring the person to
provide information to the AER if to do so might tend to incriminate the
person, or make the person liable to a criminal penalty, under a law of
this jurisdiction or another jurisdiction in Australia (whether or not that
other jurisdiction is a participating jurisdiction).
Division 5—Network service provider performance reports
28V—Preparation of network service provider performance reports
(1) Subject to this
section, the AER may prepare a report on the financial performance or
operational performance of 1 or more network service providers in providing
electricity network services.
Note—
The AER may only prepare a report under subsection (1) if the preparation
of the report will or is likely to contribute to the achievement of the
national electricity objective: see section 16.
(2) A report prepared
under this section may—
(a) deal
with the financial or operational performance of the network service provider
in relation to—
(i)
complying with (as the case requires) distribution
service standards or transmission service standards; and
(ii)
standards relating to the provision of electricity
network services to network service users or end users; and
(iii)
the profitability of network service providers in
providing electricity network services; and
(b) if
the AER considers it appropriate, deal with the performance of the network
service provider in relation to other matters or things if that performance is
directly related to the performance or exercise by the AER of an AER economic
regulatory function or power.
(3) A report prepared
under this section may include—
(a)
information provided to the AER by a person in compliance with a regulatory
information instrument; and
(b) in
the case of a report dealing with the financial performance of 1 or more
network service providers, a comparison of the profitability of the network
service providers to which the report relates from the provision of
electricity network services by them.
(4) Before preparing a
report under this section, the AER must, in accordance with the Rules, consult
with the persons or bodies specified by the Rules.
(5) The AER may
publish a report prepared under this section on its website.
Division 6—Disclosure of confidential information held by AER
28W—Authorised disclosure of information given to the AER in confidence
The AER is authorised to disclose information given to it in confidence in, or
in connection with, the performance or exercise of its functions or powers
under this Law or the Rules subject to and in accordance with—
(a) this
Division; or
(b)
section 146.
Note—
See also section 29 of this Law and section 44AAF of the Trade Practices
Act 1974 of the Commonwealth.
28X—Disclosure with prior written consent is authorised
The AER is authorised to disclose information given to it in confidence if the
AER has the written consent to do so of—
(a) the
person who gave the information; or
(b) the
person from whom the person referred to in paragraph (a) received that
information.
28Y—Disclosure for purposes of court and tribunal proceedings and to
accord natural justice
The AER is authorised to disclose information given to it in confidence—
(a) for
the purposes of civil or criminal proceedings; or
(b) for
the purposes of a proceeding before the Tribunal or a tribunal established by
or under a law of this jurisdiction or another participating jurisdiction; or
(c) for
the purposes of according natural justice to a person affected by a decision
(however described) of the AER under this Law or the Rules.
28Z—Disclosure of information given to the AER with confidential
information omitted
(1) This section
applies if—
(a) in
compliance with this Law or the Rules or voluntarily, a person gives the AER
information in confidence; and
(b) that
information is contained in a document with other information.
(2) The AER may
disclose the document with the information given in confidence omitted.
(3) The AER must
include a note at the place in the document from which the information given
in confidence is omitted to the effect that that information has been omitted
from the document.
28ZA—Disclosure of information given in confidence does not identify
anyone
The AER is authorised to disclose the information given to it in confidence,
in compliance with this Law or the Rules or voluntarily, if—
(a) it
does not disclose any elements of the information that could lead to the
identification of the person to whom that information relates; or
(b) the
manner in which it discloses the information does not identify the person to
whom that information relates.
Example—
Information disclosed under this section may be combined or arranged with
other information provided that the manner in which that information is
combined or arranged will not lead to the identification of the person to whom
the information relates.
28ZAB—Disclosure of information that has entered the public domain
The AER is authorised to disclose information given to it in confidence, in
compliance with this Law or the Rules or voluntarily, if the information is
already in the public domain.
28ZB—Disclosure of confidential information authorised if detriment does
not outweigh public benefit
(1) Despite
section 28Z, 28ZA or 28ZAB but subject to this section, the AER is
authorised to disclose information given to it in confidence after the
restricted period if the AER is of the opinion—
(a) that
the disclosure of the information would not cause detriment to the person who
has given it or to the person from whom that person received it; or
(b)
that, although the disclosure of the information would cause detriment to such
a person, the public benefit in disclosing it outweighs that detriment.
(2) Before disclosing
the information, the AER must give the person who gave the information—
(a) a
written notice (an initial disclosure notice ) stating—
(i)
that the AER wishes to disclose the information,
specifying the nature of the intended disclosure; and
(ii)
that the AER is of the opinion required by
subsection (1); and
(iii)
that the person, within the period specified in the
notice, may make representations to the AER not to disclose the information;
and
(b) the
AER's decision, in writing, setting out the reasons why the AER—
(i)
wishes to make the disclosure; and
(ii)
is of the opinion required by subsection (1).
(3) If the AER is
aware that the person who gave the information in turn received the
information from another person and is aware of that other person's identity
and address, the AER must, before disclosing the information give that other
person—
(a) a
written notice (an initial disclosure notice ) stating—
(i)
that the AER wishes to disclose the information,
specifying the nature of the intended disclosure; and
(ii)
that the AER is of the opinion required by
subsection (1); and
(iii)
that the person, within the period specified in the
notice, may make representations to the AER not to disclose the information;
and
(b) the
AER's decision, in writing, setting out the reasons why the AER—
(i)
wishes to make the disclosure; and
(ii)
is of the opinion required by subsection (1).
(4) The AER must
consider every representation made to it by a person given an initial
disclosure notice within the time specified in the notice.
(5) The period of time
specified in an initial disclosure notice must not be less than 5 business
days after the date the initial disclosure notice is given to the person.
(6) If after
considering the representations, the AER wishes to disclose the information,
the AER must give the person given the initial disclosure notice—
(a) a
written notice (a further disclosure notice ) stating—
(i)
that the AER wishes to disclose the information,
specifying the nature of the intended disclosure; and
(ii)
that the AER is of the opinion required by
subsection (1); and
(b) the
AER's decision, in writing, setting out the reasons why the AER—
(i)
wishes to make the disclosure; and
(ii)
is of the opinion required by subsection (1).
(7) For the purposes
of this section, the disclosure of anything that is already in the public
domain at the time the AER wishes to disclose it cannot cause detriment to any
person referred to in subsection (2) or (3).
(8) In this
section—
restricted period means a period of 5 business days after—
(a) an
initial disclosure notice has been given under this section; or
(b) a
further disclosure notice has been given under this section,
whichever is the later.
Division 7—Miscellaneous matters
28ZC—Consideration by the AER of submissions made to it under this Law
If, under this Law or the Rules, the AER publishes a notice inviting
submissions in relation to the making of an AER economic regulatory decision,
the AER, in making the decision—
(a) must
consider every submission it receives within the period specified in the
notice; and
(b) may,
but need not, consider a submission it receives after the period specified in
the notice expires.
28ZD—Use of information provided under a notice under Division 3 or a
regulatory information instrument
The AER may use information provided to it by a person in compliance with a
notice under section 28 or a regulatory information instrument for any
purpose connected with the performance or exercise of a function or power of
the AER under this Law or the Rules.
28ZE—AER to inform certain persons of decisions not to investigate
breaches, institute proceedings or serve infringement notices
(1) If the AER is
given information by any person in relation to a breach or a possible breach
of this Law, the Regulations or the Rules by a person but—
(a)
decides not to investigate that breach or possible breach; or
(b)
following an investigation, decides not to—
(i)
institute any proceedings in respect of that breach or
possible breach under Part 6; or
(ii)
serve an infringement notice in accordance with Division
5 of Part 6 in respect of that breach or possible breach,
the AER must notify that person of that decision in writing.
(2) This section does
not apply if the person gave the information to the AER anonymously.
28ZF—AER enforcement guidelines
(1) The AER may
prepare guidelines about the matters it will have regard to before—
(a)
making an application under section 61; or
(b)
serving an infringement notice under section 74.
(2) The AER must
publish guidelines prepared under subsection (1) on its website.
28ZG—AER must report to MCE if it does not make network revenue or
pricing determination within time
(1) If the AER does
not make a network revenue or pricing determination within the period of time
specified by this Law or the Rules for the making of that determination, the
AER must give a report to the MCE that—
(a)
describes the AER's handling of the matter; and
(b)
gives the reasons of the AER for not making the determination within the
specified period; and
(c)
specifies a date by when the AER considers the determination will be made.
(2) A report under
subsection (1)—
(a) must
be given to the MCE as soon as practicable after the expiry of the specified
period; and
(b) must
be published on the AER's website as soon as practicable after it is given to
the MCE in accordance with paragraph (a).
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
(c) any
other functions and powers conferred on it under this Law and the Rules.
(2) The AEMC has power
to do all things necessary or convenient to be done for or in connection with
the performance of its functions.
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.
Section 24 of the Australian Energy Market Commission Establishment
Act 2004 of South Australia has effect for the purposes of this Law, the
Regulations and the Rules as if it formed part of this Law.
Note—
See also sections 48 and 108.
32—AEMC must have regard to national electricity 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 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
(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—
(a)
regulating—
(i)
the operation of the national electricity market;
(ii)
the operation of the national electricity system for the
purposes of the safety, security and reliability of that system;
(iii)
the activities of persons (including Registered
participants) participating in the national electricity market or involved in
the operation of the national electricity system;
(b) any
matter or thing contemplated by this Law, or is necessary or expedient for the
purposes of this Law.
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;
(c)
confer functions or powers on, or leave any matter or thing to be decided or
determined by—
(i)
the AER, the AEMC, AEMO or a jurisdictional regulator; or
(ii)
the Reliability Panel or any other panel or committee
established by the AEMC; or
(iii)
any other body established, or person appointed, in
accordance with the Rules;
(d)
confer rights or impose obligations on any person or a class of person (other
than the AER, the AEMC or a jurisdictional regulator);
(e)
confer a function on the AER, the AEMC, AEMO or a jurisdictional regulator to
make, prepare, develop or issue guidelines, tests, standards, procedures or
any other document (however described) in accordance with the Rules, including
guidelines, tests, standards, procedures or any other document (however
described) that leave any matter or thing to be determined by the AER, the
AEMC, AEMO or jurisdictional regulator;
(f)
empower or require any person (other than a person referred to in
paragraph (e)) or body to make or issue guidelines, tests, standards,
procedures or any other document (however described) in accordance with the
Rules;
(g)
apply, adopt or incorporate wholly or partially, or as amended by the Rules,
the provisions of any standard, rule, specification, method or document
(however described) formulated, issued, prescribed or published by any person,
authority or body whether—
(i)
as formulated, issued, prescribed or published at the
time the Rules are made or at any time before the Rules are made; or
(ii)
as amended from time to time;
(h)
confer a power of direction on the AER, the AEMC, AEMO or a jurisdictional
regulator to require a person conferred a right or on whom an obligation is
imposed under the Rules (including a Registered participant) to comply
with—
(i)
a guideline, test, standard, procedure or other document
(however described) referred to in paragraph (e) 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)
AEMO; or
(ii)
a Registered participant or class of Registered
participant; or
(iii)
any other person or body performing or exercising a
function or power, or conferred a right, or on whom an obligation is imposed,
under the Rules or a class of any such person or body,
from complying with a provision, or a part of a provision, of the Rules;
(m)
provide for the modification or variation of a provision of the Rules (with or
without substitution of a provision of the Rules or a part of a provision of
the Rules) as it applies to—
(i)
AEMO; or
(ii)
a Registered participant or class of Registered
participant; or
(iii)
any other person or body performing or exercising a
function or power, or conferred a right, or on whom an obligation is imposed,
under the Rules or a class of any such person or body;
(n)
confer an immunity on, or limit the liability of, any person or body
performing or exercising a function or power, or conferred a right, or on whom
an obligation is imposed, under the Rules;
(o)
require a person or body performing or exercising a function or power, or
conferred a right, or on whom an obligation is imposed, under the Rules to
indemnify another such person or body;
(p)
contain provisions of a savings or transitional nature consequent on the
amendment or revocation of a Rule.
35—Rules relating to MCE or Ministers of participating jurisdictions
require MCE consent
The AEMC must not, without the consent of the MCE, make a Rule that confers a
right or function, or imposes an obligation, on the MCE or a Minister of a
participating jurisdiction.
Note—
The term "function" is defined in clause 10 of Schedule 2 to this Law to
include "duty".
36—AEMC must not make Rules that create criminal offences or impose
civil penalties for breaches
The AEMC must not make a Rule that—
(a)
creates an offence for a breach of a provision of the Rules; or
(b)
provides for a criminal penalty or civil penalty for a breach of a provision
of the Rules.
37—Documents etc applied, adopted and incorporated by Rules to be
publicly available
(1) The AEMC must make
publicly available—
(a)
every standard, rule, specification, method or document (however described)
formulated, issued, prescribed or published by any person, authority or body
that is applied, adopted or incorporated by a Rule; and
(b) if a
standard, rule, specification, method or document (however described)
formulated, issued, prescribed or published by any person, authority or body
is applied, adopted or incorporated by a Rule as amended from time to
time—any amendment to that standard, rule, specification, method or
document.
(2) For the purposes
of subsection (1), the AEMC makes a standard, rule, specification, method
or document (however described) formulated, issued, prescribed or published by
any person, authority or body applied, adopted or incorporated by any Rule
publicly available if the AEMC—
(a)
publishes the standard, rule, specification, method or document on the AEMC's
website; or
(b)
specifies a place from which the standard, rule, specification, method or
document may be obtained or purchased (as the case requires).
Division 3—Committees, panels and working groups of the AEMC
(1) The AEMC must
establish a panel of persons to be known as the Reliability Panel, the
composition of which must be in accordance with the Rules.
(2) The functions and
powers of the Reliability Panel are—
(a) to
monitor, review and report on, in accordance with the Rules, the safety,
security and reliability of the national electricity system; and
(b) at
the request of the AEMC, to provide advice in relation to the safety, security
and reliability of the national electricity system; and
(c) any
other functions and powers conferred on it under this Law and the Rules.
(3) At the completion
of a review, the Reliability Panel must give a report to the AEMC.
(4) If requested to do
so by the AEMC, the Reliability Panel must provide advice to the AEMC in
relation to the safety, security and reliability of the national electricity
system.
39—Establishment of committees and panels (other than the Reliability
Panel) and working groups
The AEMC may establish committees and panels (other than the Reliability
Panel) and working groups to—
(a)
provide advice on specified aspects of the AEMC's functions; or
(b)
undertake any other activity in relation to the AEMC's functions as is
specified by the AEMC.
Division 4—MCE directed reviews
(1) The MCE may give a
written direction to the AEMC that the AEMC conduct a review into—
(a) any
matter relating to the national electricity market; or
(ab) any
matter relating to any other market for electricity; or
(b) the
operation and effectiveness of the Rules; or
(c) any
matter relating to the Rules; or
(d) the
effectiveness of competition in a market for electricity for the purpose of
giving advice about whether to retain, remove or reintroduce price controls on
prices for retail electricity services.
(2) A direction given
to the AEMC under this section is binding on the AEMC and must be complied
with despite anything to the contrary in the Rules.
(3) A direction given
under this section must be published in the South Australian Government
Gazette .
(4) The AEMC must
cause a direction given under this section to be published on its website.
(1) The terms of
reference of a MCE directed review will be as specified in the direction given
by the MCE.
Example—
The terms of reference may require a MCE directed review to be
conducted—
(a)
about a specific matter within a specified time; or
(b)
whenever a specified event occurs; or
(c) on
an annual basis.
(2) Without limiting
subsection (1), the MCE may in its direction to the AEMC do one or more
of the following—
(a)
require the AEMC to give a report on a MCE directed review to the MCE within a
specified period;
(b)
require the AEMC to make the report on a MCE directed review publicly
available or available to specified persons or bodies;
(c)
require the AEMC to make a draft report publicly available or available to
specified persons or bodies during a MCE directed review;
(d)
require the AEMC to consider specified matters in the conduct of a MCE
directed review;
(e)
require the AEMC to have specified objectives in the conduct of a MCE directed
review which need not be limited by the national electricity objective;
(ea)
require the AEMC to assess a particular matter in relation to services
provided in a market for electricity against specified criteria or a specified
methodology;
(eb)
require the AEMC—
(i)
to assess a particular matter in relation to services
provided in a market for electricity; and
(ii)
to develop appropriate and relevant criteria, or an
appropriate and relevant methodology, for the purpose of the required
assessment;
(f) give
the AEMC other specific directions in respect of the conduct of a MCE directed
review.
43—Notice of MCE directed review
(1) The AEMC must
publish notice of a MCE directed review on its website and in a newspaper
circulating generally throughout Australia.
(2) The AEMC must
publish a further such notice if a term of reference or a requirement or
direction relating to the MCE directed review is varied.
44—Conduct of MCE directed review
Subject to any requirement or direction of the MCE, a MCE directed
review—
(a) may
be conducted in such manner as the AEMC considers appropriate; and
(b) may
(but need not) involve public hearings.
Division 5—Other reviews
(1) The AEMC may
conduct a review into—
(a) the
operation and effectiveness of the Rules; or
(b) any
matter relating to the Rules.
(2) A review—
(a) may
be conducted in such manner as the AEMC considers appropriate; and
(b) may
(but need not) involve public hearings.
(3) During the course
of a review, the AEMC may—
(a)
consult with any person or body that it considers appropriate;
(b)
establish working groups to assist it in relation to any aspect, or any matter
or thing that is the subject, of the review;
(c)
commission reports by other persons on its behalf on any aspect, or matter or
thing that is the subject, of the review;
(d)
publish discussion papers or draft reports.
(4) At the completion
of a review, the AEMC must—
(a) give
a copy of the report to the MCE; and
(b)
publish a report or a version of a report from which confidential information
has been omitted in accordance with section 48.
Division 6—Miscellaneous
46—AEMC must publish and make available up to date versions of Rules
The AEMC must, at all times—
(a)
maintain, on its website, a copy of the National Electricity Rules, as in
force from time to time; and
(b) make
copies of the National Electricity Rules, as in force from time to time,
available to the public for inspection at its offices during business hours.
(1) The AEMC may
charge a fee specified, or a fee calculated in accordance with a formula or
methodology specified, in the Regulations for services provided by it in
performing or exercising any of its functions or powers under this Law, the
Regulations or the Rules.
(2) The fee must not
be such as to amount to taxation.
48—Confidentiality of information
(1) Information
provided to the AEMC for the purposes of a MCE directed review or a review
conducted by the AEMC under section 45 is confidential information for
the purposes of Division 4 or 5 if—
(a) the
person who provides it claims, when providing it to the AEMC, that it is
confidential information; and
(b) the
AEMC decides that the information is confidential information.
(2) Nothing prevents
the disclosure of confidential information in a report to the MCE or a
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.
Note—
See also section 31 of this Law and section 24 of the Australian Energy
Market Commission Establishment Act 2004 of South Australia.
Part 5—Role of AEMO under National Electricity Law
Division 1—General
(1) AEMO has the
following functions:
(a) to
operate and administer the wholesale exchange;
(b) to
promote the development and improve the effectiveness of the operation and
administration of the wholesale exchange;
(c) to
register persons as Registered participants;
(d) to
exempt certain persons from being registered as Registered participants;
(e) to
maintain and improve power system security;
(f) to
facilitate retail customer transfer, metering and retail competition;
(g) for
an adoptive jurisdiction—the additional advisory functions or declared
network functions (as the case requires);
(h) any
functions conferred by jurisdictional electricity legislation or an
application Act;
(i)
any other functions conferred under this Law or the
Rules.
Notes—
1 AEMO has additional functions under its
Constitution.
2 It should be noted that AEMO’s statutory
functions include its functions under the National Gas Law, the National Gas
Rules and related subordinate legislation: See definition of statutory
functions in section 2.
3 AEMO also has responsibilities, under Part 4 of
the Australian Energy Market Commission Establishment Act 2004 of South
Australia, related to administrative costs associated with the work of the
Consumer Advocacy Panel.
(2) In its role as
National Transmission Planner, AEMO has the following functions:
(a) to
prepare, maintain and publish a plan for the development of the national
transmission grid (the National Transmission Network Development Plan ) in
accordance with the Rules;
(b) to
establish and maintain a database of information relevant to planning the
development of the national transmission grid and to make the database
available to the public;
(c) to
keep the national transmission grid under review and provide advice on the
development of the grid or projects that could affect the grid;
(d) to
provide a national strategic perspective for transmission planning and
coordination;
(e) any
other functions conferred on AEMO under this Law or the Rules in its capacity
as National Transmission Planner.
(3) AEMO must, in
carrying out functions referred to in this section, have regard to the
national electricity objective.
49A—AEMO’s power to carry out statutory functions
AEMO has the power to do all things necessary or convenient for or in
connection with its statutory functions.
(1) Subject to
subsection (2) and the Rules, AEMO may delegate any of its functions or
powers under this Law or the Rules to—
(a) a
director, officer or employee of AEMO; or
(b) a
member of a committee established by AEMO.
(2) However, a
function or power classified by the Regulations as non-delegable cannot be
delegated.
(3) A delegate may,
subject to AEMO’s directions, subdelegate a delegated function or power
to a director, officer or employee of AEMO.
(4) A delegate (or
subdelegate) must comply with any direction given by AEMO that is relevant to
the exercise of the delegated functions or powers.
Division 2—AEMO's adoptive jurisdiction functions
Subdivision 1—Preliminary
50—Application of this Division
(1) Subdivision 2
applies to, and in relation to, a participating jurisdiction if (and only if)
the application Act of that jurisdiction, or an instrument made under that
Act, declares that it does so apply.
(2) Subdivision 3
applies to, and in relation to, a participating jurisdiction if (and only if)
the application Act of that jurisdiction, or an instrument made under that
Act, declares that it does so apply.
(3) A Rule or other
form of subordinate legislation made for the purposes of Subdivision 2 or 3
applies to and in relation to a participating jurisdiction if (and only if)
the relevant Subdivision applies to and in relation to that jurisdiction.
50A—AEMO to account to relevant Minister for performance of adoptive
functions
(1) AEMO must, at the
written request of the Minister of an adoptive jurisdiction, provide
information about the performance of its adoptive functions with respect to
that jurisdiction.
(2) Protected
information provided in response to a request under subsection (1) must
be identified as such by AEMO at the time of providing the information.
(3) No fee is to be
charged for the provision of information under this section.
Subdivision 2—AEMO’s additional advisory functions
50B—Additional advisory functions
(1) AEMO’s
additional advisory functions are as follows:
(a) to
prepare and publish a report on an adoptive jurisdiction’s
declared power system;
(b) to
report to the Minister of an adoptive jurisdiction on matters relevant to the
future capacity and reliability of the declared power system.
(2) The additional
advisory functions are to be exercised as follows:
(a) a
report on an adoptive jurisdiction’s declared power system is to be
prepared and published under subsection (1)(a) at the request of the
Minister of the relevant jurisdiction;
(b) a
report is to be provided under subsection (1)(b) at the request of the
Minister of the relevant jurisdiction or on AEMO’s own initiative.
(3) A report under
subsection (1)(a) must include an assessment of the performance of
connections between transmission systems and distribution systems in the
relevant jurisdiction and the need (if any) for new connections.
(4) A request under
subsection (1)(a) or (1)(b) may be for a single report or for reports to
be made on an annual or other periodic basis.
Subdivision 3—AEMO’s declared network functions
50C—AEMO's declared network functions
(1) AEMO's declared
network functions are as follows:
(a) to
plan, authorise, contract for, and direct, augmentation of the declared shared
network;
(b) to
provide information about the planning processes for augmentation of the
declared shared network;
(c) to
provide information and other services to facilitate decisions for investment
and the use of resources in the adoptive jurisdiction’s electricity
industry;
(d) to
provide shared transmission services by means of, or in connection with, the
declared shared network;
(e) any
other functions, related to the declared transmission system or electricity
network services provided by means of or in connection with the declared
transmission system, conferred on it under this Law or the Rules;
(f) any
other functions, related to the declared transmission system or electricity
network services provided by means of or in connection with the declared
transmission system, conferred on it under a law of the adoptive jurisdiction.
(2) AEMO—
(a) is
not limited in planning augmentation of the declared shared network to its
role as National Transmission Planner; and
(b) may
make or issue market information instruments as may be necessary or expedient
for that or any other declared network function.
(1) A declared
transmission system operator must have an agreement (a network agreement )
with AEMO—
(a) for
the provision of electricity network services ( shared network capability
services ) for the performance of AEMO’s declared network functions; and
(b)
containing such other provisions as may be required by the Rules.
(2) A declared
transmission system operator or a prospective declared transmission system
operator must, if asked to do so by AEMO, offer to enter into a network
agreement with AEMO subject to and in accordance with the Rules.
(3) The offer must be
submitted within 20 business days after the date of the request.
(4) The terms and
conditions of a network agreement under this section are to be regarded as
protected information but are liable to disclosure under the provisions of
Division 6 that allow for the disclosure of protected information.
Exception—
Insofar as the terms and conditions of a network agreement can be inferred
from a determination to be published on AEMO’s website under
section 50H(6), they are not to be regarded as protected information.
(5) The Rules may
require or regulate the provision of shared network capability services.
(6) If there is any
inconsistency between a network agreement and a transmission determination as
to the price of electricity network services to be provided by means of, or in
connection with, the declared transmission system, the transmission
determination prevails.
(7) In this
section—
prospective declared transmission system operator means a person who is to
carry out an augmentation of the declared transmission system and who may
therefore become a declared transmission system operator on completion of the
augmentation.
(1) A person to whom
this section applies must have connection agreements as follows:
(a) an
agreement with AEMO for the provision of shared transmission services; and
(b) an
agreement with the relevant declared transmission system operator for the
provision of connection services as defined in the Rules.
(2) An agreement
required by this section must be in accordance with the Rules.
(3) If—
(a) a
person to whom this section applies (the applicant ) wants to connect to a
declared shared network; but
(b) the
fault levels at the proposed connection point would, if the connection were
allowed, be likely to exceed the limits fixed under the Rules,
AEMO may, as a condition of entering into a connection agreement with the
applicant, require the applicant to make a contribution to the cost of
carrying out the augmentation to the declared shared network necessary to
reduce fault levels to an acceptable level.
(4) This section
applies to each of the following:
(a) a
network service provider for a distribution system situated in the adoptive
jurisdiction;
(b)
another network service user who is provided with electricity network services
by means of, or in connection with, the declared shared network.
(1) A declared
transmission system operator must not augment the declared shared network, or
any part of the declared shared network, unless—
(a) AEMO
authorises or directs the operator to carry out the augmentation; or
(b) the
operator wins a competitive tender conducted by AEMO to carry out the
augmentation; or
(c) the
augmentation is authorised by the Rules.
(2) In deciding
whether a proposed augmentation to the declared shared network should proceed,
AEMO—
(a) must
undertake a cost benefit analysis; and
(b) must
apply a probabilistic (as distinct from a deterministic) approach to
determining the benefit of an augmentation unless—
(i)
a probabilistic approach will not produce a materially
different result; or
(ii)
it is not reasonably practicable to use a probabilistic
approach; or
(iii)
a probabilistic approach is, for some other reason,
inappropriate.
Example—
Probabilistic planning is not relevant to negotiated network services. Hence,
if the services to be provided as a result of the augmentation are negotiated
network services, a probabilistic approach would be inappropriate.
(3) Subject to the
Rules, AEMO must conduct a competitive tender to determine who will carry out
an augmentation to a declared shared network.
(4) A declared
transmission system operator—
(a) must
do anything required by the Rules to facilitate the planning, construction or
operation of an augmentation; and
(b)
must, at AEMO’s request, do anything else reasonably required by AEMO to
facilitate the planning, construction or operation of an augmentation.
Example—
A declared transmission system operator will be required by the Rules to enter
into an augmentation connection agreement with the person responsible for
operation of an augmentation to connect the augmentation with the declared
shared network.
(5) A declared
transmission system operator must not engage in conduct that has the effect of
preventing or hindering the planning, construction or operation of an
augmentation.
Note—
Subsections (1), (4) and (5) are civil penalty provisions: See the
definition of civil penalty provision in section 58.
50G—AEMO to have qualified exemption for performing statutory functions
(1) For performing
statutory functions, AEMO—
(a) is
not required to be registered as a Registered participant; and
(b) is
not subject to the provisions of the Rules applicable to network service
providers.
(2) However—
(a) a
Rule applicable to a Registered participant or a network service provider
extends (with or without modification) to AEMO if provision is made for its
application (or modified application) to AEMO by the Rules; and
(b)
provision may be made for extending the application of such a Rule to AEMO
even though AEMO does not own, control or operate the declared shared network.
50H—Resolution of dispute arising from attempt to negotiate a network
agreement or augmentation connection agreement
(1) The AER may, on
application by AEMO or 1 or more declared transmission system operators, make
a determination to resolve a dispute arising from an attempt to
negotiate—
(a) a
network agreement or an augmentation connection agreement; or
(b) an
amendment to a network agreement or an augmentation connection agreement.
(2) The determination
may determine the terms and conditions of the agreement or the amendment.
(3) If the AER
determines the terms and conditions of an agreement or an amendment, an
agreement is taken to arise between the interested parties, or the agreement
between the interested parties is taken to be amended, in accordance with the
AER's determination.
(4) A determination
may only be made under this section if—
(a) the
AER is satisfied that the applicant has made a reasonable, but unsuccessful,
attempt to negotiate the agreement or amendment; and
(b) the
AER has given AEMO and all declared transmission system operators that are to
be affected by the determination an opportunity to make representations about
the terms of the proposed determination.
(5) A determination
under this section takes effect on a date specified in the determination.
(6) A determination
under this section must be published on AEMO's website.
(7) In this section, a
reference to a declared transmission system operator extends to a prospective
declared transmission system operator within the meaning of
section 50D(7).
50J—General principles governing determinations
(1) A determination
under this Subdivision must be compatible with the proper performance of
AEMO’s declared network functions.
(2) In determining a
dispute about a network agreement or an augmentation connection agreement, or
an amendment to a network agreement or an augmentation connection agreement,
the AER must have regard to the Rules and the allocation of functions, powers
and duties between AEMO and the declared transmission system operator, so far
as relevant to—
(a) the
allocation of risk under such an agreement; or
(b) the
provision of shared network capability services; or
(c) any
other matter that has a bearing on the subject matter of such an agreement.
(3) A determination
cannot alter the allocation of risk under an existing network agreement unless
AEMO agrees.
(4) The provisions
applicable to the determination of an access dispute apply to a determination
by the AER under this Subdivision with the following changes:
(a)
section 131(1)(c), section 131(2), section 132 and
section 133 do not apply; and
(b) any
further changes necessary to adapt those provisions to the determination of a
dispute under this Division.
(5) In this section, a
reference to a declared transmission system operator extends to a prospective
declared transmission system operator within the meaning of
section 50D(7).
Division 3—Information etc to be provided to Ministers
(1) The MCE or a
Minister of a participating jurisdiction may ask AEMO for information, a
report or other services.
(2) The request may be
accompanied by a written statement of the purpose for which the information,
report or other services are sought.
(1) AEMO must comply
with a request under this Division.
(2) However, if
compliance with the request would involve disclosure of protected information,
AEMO may only provide the information if its disclosure is authorised under
this Law or the Rules.
Note—
The Minister of an adoptive jurisdiction may be entitled to certain protected
information under section 50A.
(1) AEMO must report
to the MCE in each quarter on its work under this Division for the previous
quarter.
(2) The report
must—
(a)
summarise each request received in the relevant quarter; and
(b)
state by whom each request was made.
Division 4—Fees and charges
(1) AEMO may—
(a)
determine fees and charges for services provided by it under this Law or the
Rules; and
(b)
charge for and recover the fees and charges in accordance with this Law and
the Rules.
(2) The fees and
charges for a service are to be determined on a non-profit basis that—
(a)
provides for full recovery of the costs of providing the service; and
(b) does
not amount to taxation; and
(c) is
consistent with the requirements of the Rules.
(3) Exact equivalence
is not required between the costs of providing a service and the revenue
derived from providing the service in a particular accounting period if there
are reasonable grounds to believe that costs will over time approximate
revenue.
Note—
This section does not prevent AEMO from generating a profit from the
performance of non-statutory functions (such as the provision of consultancy
services). Any such profit would not, however, be available for distribution
to members.
(4) Despite the above
provisions, a component of AEMO’s fees and charges may, if the Rules so
provide, relate to costs that are not specifically referable to services
provided under this Law or the Rules.
Note—
As a general rule, AEMO’s expenditures will be allocated to services
provided to the electricity industry or the gas industry. Subsection (4) deals
with costs that cannot be wholly attributed to either industry.
(5) This section does
not limit AEMO’s power to determine, charge for and recover fees and
charges for carrying out functions conferred by jurisdictional legislation.
(6) In this
section—
service includes the performance of statutory functions.
Division 5—Information gathering
53—Information gathering powers
(1) If AEMO considers
it reasonably necessary to do so for the exercise of a relevant function, it
may—
(a) make
a general market information order requiring information from persons of a
class specified in the order; or
(b)
serve a market information notice requiring information from the person to
whom the notice is addressed.
(2) A relevant
function is—
(a) an
NTP function; or
(b) an
additional advisory function; or
(c) a
declared network function; or
(d) any
other statutory function for which this Law authorises AEMO to gather
information by means of a market information instrument.
(3) In considering
whether to make a general market information order or to issue a market
information notice and, if so, the terms of the order or notice, AEMO must
have regard to the reasonable costs of efficient compliance.
(4) A market
information instrument—
(a) must
specify—
(i)
the information, or categories of information, that is to
be provided to AEMO; and
(ii)
the time by which the information is required; and
(iii)
in the case of a general market information
order—the class of persons to which the order applies; and
(iv)
in the case of a market information notice—the name
of the person to whom the notice is addressed; and
(b) may
specify the manner and form in which information must be provided.
(5) Without limiting
subsection (4), a market information instrument—
(a) may
require information of any of the following kinds:
(i)
historic, current and forecast information;
(ii)
information that may be derived from other information in
the possession or control of the person required to provide the information;
and
(b) may
require the provision of information on an annual or other periodic basis.
53A—Making and publication of general market information order
(1) Before making a
final decision to make a general market information order, AEMO must—
(a)
invite persons of the class to which the proposed order is addressed to make
representations about the terms of the proposed order within a period (at
least 20 business days) specified in the invitation; and
(b)
consider any written representations made in response to the invitation within
the specified period.
(2) As soon as
practicable after a general market information order is made—
(a) the
order must be published on AEMO's website; and
(b)
notice of the making of the order must be published in a newspaper circulating
generally throughout Australia.
53B—Service of market information notice
(1) Before serving a
market information notice, AEMO must—
(a) give
the person on whom AEMO intends to serve the market information notice (the
respondent ) written notice of its intention to do so; and
(b) give
the respondent a draft of the market information notice.
(2) A notice under
subsection (1) must—
(a)
invite the respondent to make written representations to AEMO about whether
AEMO should serve the market information notice; and
(b)
specify the period (at least 20 business days) allowed for making the
representations.
(3) AEMO must consider
written representations made in response to the invitation within the
specified period before making a final decision to serve the market
information notice.
53C—Compliance with market information instrument
(1) A market
information instrument takes effect as follows:
(a) in
the case of a general market information order—on publication on AEMO's
website; or
(b) in
the case of a market information notice—on service of the notice on the
person to whom it is addressed.
(2) AEMO may, by
written notice, exempt a person from compliance with a general market
information order—
(a)
unconditionally or on specified conditions; and
(b)
wholly or to a specified extent.
(3) Subject to any
exemption, a person who is a member of a class to which a general market
information order applies must comply with the order.
(4) A person on whom a
market information notice is served must comply with the notice.
(5) The duty to comply
with a market information instrument prevails over a duty of confidence.
(6) However—
(a) a
person cannot be required by a market information instrument to disclose
information that is the subject of legal professional privilege; and
(b) a
natural person cannot be required by a market information instrument to
disclose information that would incriminate the person or make the person
liable to a criminal penalty under the law of an Australian jurisdiction
(whether or not the jurisdiction is a participating jurisdiction).
(7) A person incurs no
liability, by complying with a market information instrument, for breach of
contract, breach of confidence or any other civil wrong.
Subject to this Law, the Rules and the Regulations, AEMO may use information
obtained by market information instrument or in any other way for any purpose
connected with the exercise of any of its statutory functions.
53E—Providing false or misleading information
A person must not, in purported compliance with a market information
instrument, provide information to AEMO that the person knows is false or
misleading in a material particular.
Maximum penalty:
(a) in
the case of a natural person—$2 000;
(b) in
the case of a body corporate—$10 000.
Division 6—Protected information
Subdivision 1—AEMO's obligation to protect information
(1) AEMO must take all
reasonable measures to protect from unauthorised use or disclosure information
( protected information )—
(a)
given to it in confidence; or
(b)
given to it in connection with the performance of its statutory functions and
classified under the Rules or the Regulations as confidential information.
(2) AEMO makes
unauthorised use of protected information if (and only if) it uses the
information contrary to this Law, the Rules or the Regulations.
Note—
Section 53D authorises AEMO (subject to the Law, the Rules and the
Regulations) to use information (whether obtained by market information
instrument or in any other way) for any purpose connected with the exercise of
any of its statutory functions.
(3) AEMO makes an
unauthorised disclosure of protected information if the disclosure is not
authorised under this Law, the Rules or the Regulations.
Subdivision 2—Disclosure of protected information held by AEMO
54A—Authorised disclosure of protected information
(1) AEMO is authorised
to disclose protected information in accordance with this Subdivision.
(2) AEMO may also be
authorised to disclose protected information by the Rules or the Regulations
(or both).
54B—Disclosure with prior written consent
AEMO is authorised to disclose protected information if it has the written
consent of the person from whom the information was obtained.
54C—Disclosure required or permitted by law etc
(1) The disclosure of
protected information as required or permitted by a law of the Commonwealth, a
State or Territory is authorised.
(2) The disclosure of
protected information to any of the following is authorised:
(a) the
Australian Competition and Consumer Commission;
(b) the
Australian Energy Regulator;
(c) the
Australian Energy Market Commission;
(d) the
Economic Regulation Authority of Western Australia;
(e) a
jurisdictional regulator;
(f) if
the information is reasonably required by a recognised energy industry
ombudsman to resolve a dispute between a Registered participant and a customer
under an industry dispute resolution scheme but the information is not end-use
consumer information—the recognised energy industry ombudsman;
(g) a
prescribed body;
(h) any
staff or consultant assisting a body mentioned above in performing its
functions or exercising its powers.
(3) A person or body
to whom protected information is disclosed under subsection (2) may use
the information for any purpose connected with the performance of the
functions, or the exercise of the powers, of the person or body.
(4) AEMO may impose
conditions to be complied with in relation to protected information disclosed
under subsection (2).
(5) The disclosure of
protected information by a person in the ordinary course of carrying out
functions as an officer or employee of, or consultant to, AEMO or a body
mentioned in subsection (2) is authorised.
54D—Disclosure for purposes of court and tribunal proceedings
AEMO is authorised to disclose protected information for the purposes
of—
(a)
civil or criminal proceedings; or
(b) a
proceeding before the Tribunal or a tribunal established by or under a law of
this jurisdiction or another participating jurisdiction.
54E—Disclosure of document with omission of protected information
(1) If a document
contains both protected information and other information, AEMO may disclose
the document with the omission of the protected information.
(2) AEMO must include
a note at the place in the document from which the protected information is
omitted to the effect that protected information has been omitted from the
document.
54F—Disclosure of non-identifying information
AEMO is authorised to disclose protected information if—
(a) it
does not disclose any elements of the information that could lead to the
identification of the person to whom the information relates; or
(b) the
manner in which it discloses the information does not identify the person to
whom that information relates.
Example—
Protected information may be combined or arranged with other information to
prevent the identification of the person to whom the protected information
relates.
54G—Disclosure of protected information for safety, proper operation of
the market etc
(1) AEMO is authorised
to disclose protected information if—
(a) the
disclosure is necessary for—
(i)
the safety, reliability or security of the supply of
electricity; or
(ii)
the safety, reliability or security of the national
electricity system; or
(b) the
disclosure is necessary for the proper operation of the national electricity
market; or
(c) the
information is customer profiling information for facilitating retail
competition; or
(d) the
information is in the public domain.
(2) AEMO may impose
conditions to be complied with in relation to information disclosed under
subsection (1)(a), (b) or (c).
54H—Disclosure of protected information authorised if detriment does not
outweigh public benefit
(1) Subject to this
section, AEMO is authorised to disclose protected information after the
restricted period if AEMO is of the opinion—
(a) that
the disclosure of the information would not cause detriment to the person who
has given it or to a person from whom that person received it; or
(b)
that, although the disclosure of the information would cause detriment to such
a person, the public benefit in disclosing it outweighs that detriment.
(2) Before disclosing
the protected information, AEMO must give the person who gave the protected
information—
(a) a
written notice (an initial disclosure notice ) stating—
(i)
that AEMO wishes to disclose the information, specifying
the nature of the intended disclosure; and
(ii)
that AEMO is of the opinion required by
subsection (1); and
(iii)
that the person, within the period specified in the
notice, may make representations to AEMO against disclosure of the
information; and
(b)
AEMO's decision, in writing, setting out the reasons why AEMO—
(i)
wishes to make the disclosure; and
(ii)
is of the opinion required by subsection (1).
(3) If AEMO is aware
that the person who gave the protected information in turn received the
information from another person and is aware of the other person's identity
and address, AEMO must, before disclosing the information give the other
person—
(a) a
written notice (an initial disclosure notice ) stating—
(i)
that AEMO wishes to disclose the information, specifying
the nature of the intended disclosure; and
(ii)
that AEMO is of the opinion required by
subsection (1); and
(iii)
that the person, within the period specified in the
notice, may make representations to AEMO against disclosure of the
information; and
(b)
AEMO's decision, in writing, setting out the reasons why AEMO—
(i)
wishes to make the disclosure; and
(ii)
is of the opinion required by subsection (1).
(4) AEMO must consider
every representation made to it by a person given an initial disclosure notice
within the time specified in the notice.
(5) The period
specified in an initial disclosure notice must not be less than 5 business
days after the date the initial disclosure notice is given to the person.
(6) If, after
considering the representations, AEMO wishes to disclose the protected
information, AEMO must give the person given the initial disclosure
notice—
(a) a
written notice (a further disclosure notice ) stating—
(i)
that AEMO intends to disclose the information, specifying
the nature of the intended disclosure; and
(ii)
that AEMO is of the opinion required by
subsection (1); and
(b)
AEMO's decision, in writing, setting out the reasons why AEMO—
(i)
intends to make the disclosure; and
(ii)
is of the opinion required by subsection (1).
(7) For the purposes
of this section, the disclosure of anything that is already in the public
domain at the time AEMO wishes to disclose it cannot cause detriment to any
person referred to in subsection (2) or (3).
(8) In this
section—
restricted period means a period of 5 business days after—
(a) an
initial disclosure notice has been given under this section; or
(b) a
further disclosure notice has been given under this section,
whichever is the later.
Division 7—AEMO's statutory funds
In this Division—
Rule fund means a fund existing in NEMMCO's books as a Rule fund immediately
before the changeover date or a fund established as a Rule fund under this
Division.
(1) Subject to the
Rules, AEMO is responsible for the administration of each Rule fund.
(2) AEMO must, if
required to do so by the Rules, establish and maintain a new Rule fund in
accordance with the Rules.
(3) Nothing in
this Law or the Rules constitutes AEMO, or a director of AEMO, as a trustee of
a Rule fund.
55B—Payments into and out of Rule funds
(1) AEMO must ensure
that there is paid into each Rule fund—
(a) all
amounts received by AEMO that, under the Rules, are required to be paid into
the fund; and
(b)
income from investment of money in the fund.
(2) Money held in a
Rule fund may be applied only in payment of—
(a)
amounts that, under the Rules, are required or permitted to be paid from the
fund; or
(b)
liabilities or expenses of the fund.
(1) AEMO may invest
money standing to the credit of a Rule fund.
(2) AEMO must, in
exercising the power of investment, exercise the care, diligence and skill
that a prudent person would exercise in managing the affairs of others.
Part 5A—Functions and powers of Minister of this participating
jurisdiction
57A—Functions and powers of Minister of this participating jurisdiction
(1) The Minister of
this participating jurisdiction has the functions and powers conferred on him
or her under this Law, the Regulations or the Rules.
(2) The Minister of
this participating jurisdiction has power to do all things necessary or
convenient to be done for or in connection with the performance of his or her
functions.
(3) In this
section—
Minister of this participating jurisdiction means the Minister that
administers the Act of this jurisdiction that applies this Law as a law of
this jurisdiction.
Part 5B—Functions and powers of Tribunal
57B—Functions and powers of Tribunal under this Law
(1) The Tribunal has
the functions and powers conferred on it under Division 3A of Part 6 and any
Regulations made for the purposes of that Division.
(2) The Tribunal has
power to do all things necessary or convenient to be done for or in connection
with the performance of its functions.
Part 6—Proceedings under the National Electricity Law
Division 1—General
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)
section 14A; or
(c)
section 14B; or
(d)
section 28N; or
(e)
section 28O; or
(ea)
section 50D(1); or
(eb)
section 50F(1) or (5); or
(ec)
section 53C(3) or (4); or
(f)
section 136; or
(g)
section 157; or
(h) a
rebidding civil penalty provision; or
(i)
any other provision of this Law (other than an offence
provision) 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 on behalf of
the Commonwealth, 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.
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 AEMO.
63—Orders for disconnection in certain circumstances where there is no
breach
(1) The Court, on
application by the AER on behalf of the Commonwealth, may make an order that
directs that a Registered participant's loads be disconnected if a relevant
disconnection event occurs.
(2) In this
section—
relevant disconnection event means an event specified in the Rules as being an
event for which a Registered participant's loads may be disconnected, being an
event that does not constitute a breach of the Rules.
64—Matters for which there must be regard in determining amount of civil
penalty
Every civil penalty ordered to be paid by a 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
(c) the
circumstances in which the breach took place; 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; and
(e)
whether the service provider had in place a compliance program approved by the
AER or required under the Rules, and if so, whether the service provider has
been complying with that program.
65—Breach of a civil penalty provision is not an offence
A breach of a civil penalty provision is not an offence.
66—Breaches of civil penalty provisions involving continuing failure
For the purpose of determining the civil penalty for a breach of a civil
penalty provision if the breach consists of a failure to do something that is
required to be done, the breach is to be regarded as continuing until the act
is done despite the fact that any period within which, or time before which,
the act is required to be done has expired or passed.
67—Conduct in breach of more than one civil penalty provision
(1) If the conduct of
a 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 2A—Proceedings before, and awards etc of, Dispute resolution
panels
69A—Commercial Arbitration Acts apply to proceedings before Dispute
resolution panels
(1) The procedural
Parts of the Commercial Arbitration Act of this jurisdiction apply to the
hearing of a Rule dispute and decision or determination of a Dispute
resolution panel—
(a) as
if—
(i)
the Rules providing for a Rule dispute were an
arbitration agreement within the meaning of that Act; and
(ia) the
referral of the Rule dispute to a Dispute resolution panel in accordance with
the Rules were a referral to arbitration in accordance with an arbitration
agreement; and
(ii)
a reference in those Parts to an arbitrator or umpire
were a reference to the Dispute resolution panel; and
(iii)
a reference to a party to an arbitration agreement, or in
an arbitration proceeding, in those Parts were a reference to a party to the
Rule dispute; and
(iv)
in those Parts for "unless otherwise agreed in writing by
the parties to the arbitration agreement" there were substituted "unless the
Rules provide otherwise"; and
(v)
a reference to an award of an arbitrator or umpire in
those Parts were a reference to a decision or determination of a Dispute
resolution panel; and
(b) with
any other alterations and modifications that are necessary.
(2) In this
section—
procedural Parts of the Commercial Arbitration Act of 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 3, 4 and 6 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 VI 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 6 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 3, 4 and 6 of the
Commercial Arbitration and Industrial Referral Agreements Act 1986 of
South Australia;
(e) if
this Law is applied as a law of Tasmania and a Rule dispute is heard and
determined in that State, Parts III, IV and VI of the Commercial Arbitration
Act 1986 of Tasmania;
(f) 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 6 of the
Commercial Arbitration Act 1986 of the Australian Capital Territory;
(g) 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 3, 4 and 6 of the Commercial Arbitration and
Industrial Referral Agreements Act 1986 of South Australia.
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 AEMO under this Law, the Regulations
or the Rules; or
(b) a
failure by the AEMC or AEMO 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 AEMO 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 review
provisions of the Commercial Arbitration Act of this jurisdiction apply to a
decision or determination of a Dispute resolution panel—
(a) as
if—
(i)
the Rules providing for a Rule dispute were an
arbitration agreement within the meaning of that Act; and
(ii)
a reference to an arbitration in those provisions were a
reference to the hearing of the Rule dispute; and
(iii)
a reference in those provisions to an award of an
arbitrator or umpire were a reference to a decision or determination of a
Dispute resolution panel; and
(iv)
a reference to a party to an arbitration agreement, or in
an arbitration proceeding, in those provisions were a reference to a party to
the Rule dispute; and
(v)
sections 40 and 41 were omitted; and
(b) with
any other alterations and modifications that are necessary.
(3) In this
section—
review provisions of the Commercial Arbitration Act of 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, Part 5 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, Part 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, Part 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, Part 5 of the
Commercial Arbitration and Industrial Referral Agreements Act 1986 of
South Australia;
(e) if
this Law is applied as a law of Tasmania and a Rule dispute is heard and
determined in that State, Part V of the Commercial Arbitration Act 1986 of
Tasmania;
(f) if
this Law is applied as a law of the Australian Capital Territory and a Rule
dispute is heard and determined in that Territory, Part 5 of the Commercial
Arbitration Act 1986 of the Australian Capital Territory;
(g) 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 Part 5 of the Commercial Arbitration and Industrial
Referral Agreements Act 1986 of South Australia.
Division 3A—Merits review and other non-judicial review
Subdivision 1—Interpretation
In this Division—
affected or interested person or body means—
(a) a
regulated network service provider to whom the reviewable regulatory decision
applies;
(b) a
network service provider, user, prospective user or end user whose commercial
interests are materially affected by the reviewable regulatory decision;
(c) a
user or consumer association;
applicant means—
(a) an
affected or interested person or body who has been granted leave to apply for
review by the Tribunal under Subdivision 2; or
(b) a
person who makes an application under section 71S;
average annual regulated revenue means the annual average of regulated revenue
calculated for the regulatory period of a network revenue or pricing
determination;
information disclosure decision means—
(a) a
decision to disclose information made by the AER under section 28ZB; or
(b) a
decision to disclose information made by AEMO under section 54H;
intervener means a person or body referred to in section 71J, 7IK or 71L
who has intervened in a review under Subdivision 2 with the leave of the
Tribunal or otherwise;
prospective user means a person who—
(a) is a
Registered participant, or is capable of becoming a Registered participant;
and
(b)
seeks or wishes to be provided with an electricity service,
but does not include a network service provider;
regulatory period means the period specified in a network revenue or pricing
determination to be the regulatory period;
regulated revenue means the total revenue earned or to be earned by a
regulated network service provider—
(a)
under; and
(b)
during the regulatory period of,
a network revenue or pricing determination through the provision of the direct
control network services to which that determination applies;
reviewable regulatory decision means—
(a) a
network revenue or pricing determination that sets a regulatory period; or
(b) any
other determination (including a distribution determination or transmission
determination) or decision of the AER under the Rules that is prescribed by
the Regulations to be a reviewable regulatory decision,
but does not include a decision of the AER made under Division 6 of Part 3;
review under this Division means a review under Subdivision 2 or Subdivision
3;
small/medium user or consumer intervener means a user or consumer intervener
consisting of an association or group of which—
(a) the
members are only small to medium users or end users; or
(b) an
object or purpose is to promote the interests of small to medium users or end
users;
small to medium user or end user means a user or end user whose annual
consumption of electricity does not exceed a level (expressed in megawatt
hours) fixed by Regulation for the purposes of this definition;
user means a person who—
(a) is a
Registered participant, or is capable of becoming a Registered participant;
and
(b) is
provided with an electricity service,
but does not include a network service provider;
user or consumer association means an association or body (whether
incorporated or unincorporated)—
(a) the
members of which include more than 1 user, prospective user or end user; and
(b) that
represents and promotes the interests of those members in relation to the
provision of electricity services;
user or consumer interest group means an association or body (whether
incorporated or unincorporated)—
(a) that
has, as an object or purpose, the object or purpose of representing and
promoting the interests of users or prospective users or end users of
electricity services; but
(b) the
members of which need not include a user, prospective user or end user;
user or consumer intervener means—
(a) a
user or consumer association; or
(b) a
user or consumer interest group,
that has made a submission or comment in relation to the making of a
reviewable regulatory decision following an invitation to do so by the AER
under this Law or the Rules.
Subdivision 2—Merits review for reviewable regulatory decisions
(1) An affected or
interested person or body, with the leave of the Tribunal, may apply to the
Tribunal for a review of a reviewable regulatory decision.
(2) An application
must—
(a) be
made in the form and manner determined by the Tribunal; and
(b)
specify the grounds for review being relied on.
(1) An application
under section 71B(1) may be made only on 1 or more of the following
grounds:
(a) the
AER made an error of fact in its findings of facts, and that error of fact was
material to the making of the decision;
(b) the
AER made more than 1 error of fact in its findings of facts, and that those
errors of fact, in combination, were material to the making of the decision;
(c) the
exercise of the AER's discretion was incorrect, having regard to all the
circumstances;
(d) the
AER's decision was unreasonable, having regard to all the circumstances.
(2) It is for the
applicant to establish a ground listed in subsection (1).
71D—By when an application must be made
An application under section 71B(1) in respect of a reviewable regulatory
decision must be made no later than 15 business days after the reviewable
regulatory decision is published in accordance with this Law or the Rules.
71E—Tribunal must not grant leave unless serious issue to be heard and
determined
Subject to this Subdivision, the Tribunal must not grant leave to apply under
section 71B(1) unless it appears to the Tribunal that there is a serious
issue to be heard and determined as to whether a ground for review set out in
section 71C(1) exists.
71F—Leave must be refused if application is about an error relating to
revenue amounts below specified threshold
(1) This section
applies if—
(a)
leave to apply under section 71B(1) is in relation to a reviewable
regulatory decision that is a network revenue or pricing determination; and
(b) the
ground for review relied on by the applicant relates to the amount of revenue
that may be earned by a regulated network service provider that is specified
in or derived from that decision.
(2) Despite
section 71E, the Tribunal must not grant leave to apply under
section 71B(1) even if there is a serious issue to be heard and
determined as to whether a ground for review set out in section 71C(1)
exists unless the amount that is specified in or derived from the decision
exceeds the lesser of $5 000 000 or 2% of the average annual
regulated revenue of the regulated network service provider.
71G—Tribunal must refuse to grant leave if submission not made or is
made late
The Tribunal must not grant leave to apply under section 71B(1) to a
person or body referred to in paragraph (b) or (c) of the definition of
affected or interested person or body if that person or body—
(a) did
not make a submission or comment in relation to the making of the decision
following an invitation by the AER to do so under this Law or the Rules; or
(b) did
make a submission or comment in relation to the making of the decision
following an invitation by the AER to do so under this Law or the Rules
but—
(i)
that submission was not made within the time required
under this Law or the Rules following that invitation; and
(ii)
the AER chose not to take that submission or comment into
account in making the decision.
71H—Tribunal may refuse to grant leave to service provider in certain
cases
(1) This section
applies—
(a) in
relation to an application under section 71B(1) by a regulated network
service provider for a review of a reviewable regulatory decision that applies
to the service provider; and
(b) if
the Tribunal is satisfied of the matters set out in section 71E or 71F to
grant leave to apply under section 71B(1).
(2) Despite being
satisfied of the matters set out in section 71E or 71F to grant leave to
apply under section 71B(1), the Tribunal may refuse to grant leave to the
regulated network service provider if the Tribunal is satisfied the service
provider—
(a)
without reasonable excuse—
(i)
failed to comply with a request (including a request for
relevant information), or a direction, of the AER made under this Law or the
Rules for the purpose of making the decision; or
(ii)
conducted itself in a manner that resulted in the making
of the decision of the AER being delayed; or
(b)
misled, or attempted to mislead, the AER on a matter relevant to the AER's
decision.
71I—Effect of application on operation of reviewable regulatory
decisions
An application under section 71B(1)—
(a) does
not stay the operation of a network revenue or pricing determination;
(b)
stays the operation of any other reviewable regulatory decision on the
granting of leave to apply by the Tribunal, unless the Tribunal otherwise
orders.
71J—Intervention by others in a review without leave
Only the following persons may intervene in a review under this Subdivision
without leave of the Tribunal:
(a) a
regulated network service provider to whom the reviewable regulatory decision
being reviewed applies (if that provider is not the applicant);
(b) a
Minister of a participating jurisdiction.
7IK—Leave for reviewable regulatory decision process participants
(1) The Tribunal must
grant leave to a person or body to intervene in a review under this
Subdivision if that person or body is a reviewable regulatory decision process
participant.
(2) In this
section—
reviewable regulatory decision process participant means a person or body
(other than a user or consumer intervener) with a sufficient interest in the
reviewable regulatory decision being reviewed who—
(a) has
made a submission or comment in relation to the making of that decision within
the time required under this Law or the Rules following an invitation by the
AER to do so; or
(b) has
made a submission or comment in relation to the making of that decision
outside the time required under this Law or the Rules following an invitation
by the AER to do so but which the AER chose to take into account in making
that decision.
71L—Leave for user or consumer intervener
(1) A user or consumer
intervener may apply to the Tribunal for leave to intervene in a review of a
reviewable regulatory decision under this Subdivision.
(2) The Tribunal may
grant leave to a user or consumer intervener to intervene in a review under
this Subdivision.
(3) Without limiting
subsection (2), the Tribunal may grant leave to a user or consumer
intervener to intervene in a review under this Division if the Tribunal is
satisfied—
(a) the
user or consumer intervener, in its application for leave to intervene, raises
a matter that will not be raised by the AER or the applicant; or
(b) the
information or material the user or consumer intervener wishes to present, or
the submissions the user or consumer intervener wishes to make, in the review
is likely to be better presented if submitted by the user or consumer
intervener rather than another party to the review; or
(c) the
interests of the user or consumer intervener or its members are affected by
the decision being reviewed.
(4) For the purposes
of subsection (3)(c)—
(a) the
interests of a user or consumer intervener are to be taken to be affected if
the reviewable regulatory decision being reviewed relates to an object or
purpose of the user or consumer intervener;
(b) the
interests of a user or consumer intervener are not to be taken to not be
affected only because those interests do not coincide with the interests of
the applicant.
71M—Interveners may raise new grounds for review
(1) An intervener may
raise in a review under this Subdivision any of the grounds specified in
section 71C even if the ground that is raised by the intervener is not
raised by the applicant.
(2) To avoid doubt, it
is for the intervener to establish the ground referred to in
subsection (1).
71N—Parties to a review under this Subdivision
The parties to a review under this Subdivision are—
(a) the
applicant; and
(b) AER;
and
(c) an
intervener.
71O—Matters that parties to a review may and may not raise in a review
(1) The AER, in a
review under this Subdivision, may raise—
(a) a
matter not raised by the applicant or an intervener that relates to a ground
for review, or a matter raised in support of a ground for review, raised by
the applicant or an intervener;
(b) a
possible outcome or effect on the reviewable regulatory decision being
reviewed that the AER considers may occur as a consequence of the Tribunal
making a determination setting aside or varying the reviewable regulatory
decision.
(2) A party (other
than the AER) to a review under this Subdivision may not raise any matter that
was not raised in submissions to the AER before the reviewable regulatory
decision was made.
71P—Tribunal must make determination
(1) If, following an
application, the Tribunal grants leave in accordance with section 71B(1),
the Tribunal must make a determination in respect of the application.
Note—
See section 71Q for the time limit within which the Tribunal must make
its determination.
(2) A determination
under this section may—
(a)
affirm, set aside or vary the reviewable regulatory decision;
(b)
remit the matter back to the AER to make the decision again, in accordance
with any direction or recommendation of the Tribunal.
(3) For the purposes
of making a determination of the kind in subsection (2)(a), the Tribunal
may perform all the functions and exercise all the powers of the AER under
this Law or the Rules.
(4) In deciding
whether to remit a matter back to the AER to make the decision again, the
Tribunal must have regard to the nature and relative complexities of—
(a) the
reviewable regulatory decision; and
(b) the
matter the subject of the review.
(5) A determination by
the Tribunal affirming, setting aside or varying the reviewable regulatory
decision is, for the purposes of this Law (other than this Part), to be taken
to be a decision of the AER.
71Q—Target time limit for Tribunal for making a determination under this
Subdivision
(1) The Tribunal must
use its best endeavours to make a determination in respect of the application
for review under this Subdivision—
(a)
within 3 months after the Tribunal grants leave in accordance with this
Subdivision (the standard period ); or
(b) if
the standard period is extended under this section—that period as
extended.
(2) If the Tribunal is
unable to make a determination in respect of the application within the
standard period, or that period as extended, the Tribunal must, by notice in
writing, extend the standard period or that period by a specified period.
(3) The Tribunal must
give a copy of the notice to—
(a) the
applicant; and
(b)
every other party to the application.
(4) The Tribunal may
extend the standard period, or that period as extended, more than once.
(5) If the Tribunal
extends a period, it must publish a notice in a newspaper circulating
generally throughout Australia and on its website—
(a)
stating that it has done so; and
(b)
specifying a date by which it must now use its best endeavours to make the
determination.
71R—Matters to be considered by Tribunal in making determination
(1) Subject to this
section, the Tribunal, in reviewing a reviewable regulatory decision, must not
consider any matter other than review related matter.
(2) The Tribunal, in
reviewing a reviewable regulatory decision, must have regard to any
document—
(a)
prepared, and used, by the AER for the purpose of making the reviewable
regulatory decision; and
(b) that
the AER has made publicly available.
(3) In addition, if in
a review, the Tribunal is of the view that a ground of review has been
established, the Tribunal may allow new information or material to be
submitted if the new information or material—
(a)
would assist it on any aspect of the determination to be made; and
(b) was
not unreasonably withheld from the AER when it was making the reviewable
regulatory decision.
(4) Subject to
this Law, for the purpose of subsection (3)(b), information or material
not provided to the AER following a request for that information or material
by it under this Law or the Rules is to be taken to have been unreasonably
withheld.
(5)
Subsection (5) does not limit what may constitute an unreasonable
withholding of information or material.
(6) In this
section—
review related matter means—
(a) the
application for review and submissions in support of the application; and
(b) the
reviewable regulatory decision and the written record of it and any written
reasons for it; and
(c) in
the case of a reviewable regulatory decision that is a network revenue or
pricing determination—any document, proposal or information required or
allowed under the Rules to be submitted as part of the process for the making
of the determination; and
(d) any
written submissions made to the AER before the reviewable regulatory decision
was made; and
(e) any
reports and materials relied on by the AER in making the reviewable regulatory
decision; and
(f) any
draft of the reviewable regulatory decision; and
(g) any
submissions on the draft of the reviewable regulatory decision or the
reviewable regulatory decision itself considered by the AER; and
(h) the
transcript (if any) of any hearing conducted by the AER for the purpose of
making the reviewable regulatory decision.
Subdivision 3—Tribunal review of information disclosure decisions
(1) A person whose
interests are adversely affected by an information disclosure decision may
apply to the Tribunal for a review of the decision.
(2) An application
must be made in the form and manner determined by the Tribunal.
(3) An application may
only be made on the ground that—
(a) the
decision was not made in accordance with law; or
(b) the
decision is unreasonable having regard to all relevant circumstances.
(4) The person must
lodge the application with the Tribunal no later than 5 business days after
the date of the last notice given under section 28ZB or section 54H
(as the case requires).
(5) An application
under this section stays the operation of the decision until the earlier
of—
(a) 20
business days; or
(b) the
making of a determination by the Tribunal in respect of the application.
71T—Exclusion of public in certain cases
On the application of a party to a review under this Subdivision, the Tribunal
may conduct the review in the absence of the public.
71U—Determination in the review
(1) Subject to this
Division, on receipt of an application under section 71S, the Tribunal
must make a determination in respect of the application.
(2) A determination
under this section must only—
(a)
affirm the information disclosure decision; or
(b)
forbid disclosure by the AER or AEMO of the information or document to which
the information disclosure decision relates; or
(c)
restrict, as specified in the determination, the intended disclosure by the
AER or AEMO of the information or document to which the information disclosure
decision relates.
(3) For the purposes
of making a determination of the kind in subsection (2)(a), the Tribunal
may perform all the functions and exercise all the powers of the AER or AEMO
(as the case requires) under this Law or the Rules.
(4) A determination by
the Tribunal affirming the information disclosure decision, or forbidding or
restricting disclosure of information, is, for the purposes of this Law (other
than this Part), to be taken to be a decision of the AER or AEMO (as the case
requires).
71V—Tribunal must be taken to have affirmed decision if decision not
made within time
(1) This section
applies if the Tribunal does not make a determination under section 71U
within 20 business days after an application is lodged under section 71S.
(2) The Tribunal must
be taken to have made a determination under section 71U affirming the
information disclosure decision to which the application relates.
71W—Assistance from AER or AEMO
The member of the Tribunal presiding in the review may require the AER or AEMO
(as the case requires) to give information, to make a report or to give other
assistance for the purposes of the review.
Subdivision 4—General
(1) Subject to this
section, the Tribunal may order that a party to a review under this Division
pay all or a specified part of the costs of another party to the review.
(2) The Tribunal must
not make an order requiring the AER or a small/medium user or consumer
intervener to pay the costs of another party to the review unless the Tribunal
considers that the AER or intervener has conducted their case in the review
without due regard to—
(a) the
costs that would have to be incurred by another party to the review as a
result of that conduct; or
(b) the
time required by—
(i)
the Tribunal to hear the review as a result of that
conduct; or
(ii)
another party to prepare their case as a result of that
conduct; or
(c) the
submissions or arguments made to the Tribunal by another party.
(3) The Tribunal may
make an order requiring a user or consumer intervener (that is not a
small/medium user or consumer intervener) that has intervened in the review to
pay all or part of the costs of another party to the review if the Tribunal
considers that the intervener has conducted their case in the review without
due regard to—
(a) the
costs that would have to be incurred by another party to the review as a
result of that conduct; or
(b) the
time required by—
(i)
the Tribunal to hear the review as a result of that
conduct; or
(ii)
another party to prepare their case as a result of that
conduct; or
(c) the
submissions or arguments made to the Tribunal by another party.
If the Tribunal makes an order for costs in a review under this Division, the
Tribunal may in that order fix the amount of costs payable by a party to the
review on—
(a) a
party and party basis; or
(b) a
solicitor and client basis; or
(c) an
indemnity basis; or
(d) any
other basis as the Tribunal may decide.
(1) The MCE must cause
a review of this Division to be undertaken within 7 years after the
commencement of this Part by a person nominated by the MCE.
(2) The MCE must
specify the matters to be addressed in the review.
(3) The person
undertaking the review must, during the review, invite public comment and
submissions about the matters to be addressed in the review.
(4) The person
undertaking the review must report, in writing, to the MCE on the outcome of
the review by the date specified by the MCE.
Division 3B—Enforcement of access determinations
71ZA—Enforcement of access determinations
(1) If the Court is
satisfied, on the application of a party to an access determination, that
another party to the determination has engaged, is engaging, or is proposing
to engage in conduct that constitutes a contravention of the determination,
the Court may make all or any of the following orders:
(a) an
order granting an injunction on such terms as the Court thinks
appropriate—
(i)
restraining the other party from engaging in the conduct;
or
(ii)
if the conduct involves refusing or failing to do
something—requiring the other party to do that thing;
(b) an
order directing the other party to compensate the applicant for loss or damage
suffered as a result of the contravention;
(c) any
other order that the Court thinks appropriate.
(2) The revocation of
an access determination does not affect any remedy under subsection (1)
in respect of a contravention of the determination that occurred when the
determination was in force.
(3) If the Court has
power under subsection (1) to grant an injunction restraining a person
from engaging in particular conduct, or requiring a person to do anything, the
Court may make any other orders (including granting an injunction) that it
thinks appropriate against any other person who was involved in the
contravention concerned.
(4) A reference in
this section to a person involved in the contravention is a reference to a
person who has—
(a)
aided, abetted, counselled or procured the contravention; or
(b)
induced the contravention, whether through threats or promises or otherwise;
or
(c) been
in any way (directly or indirectly) knowingly concerned in or a party to the
contravention; or
(d)
conspired with others to effect the contravention.
On an application for an injunction under section 71ZA, the Court may
grant an injunction by consent of all of the parties to the proceedings,
whether or not the Court is satisfied that the section applies.
The Court may grant an interim injunction pending determination of an
application under section 71ZA.
71ZD—Factors relevant to granting a restraining injunction
The power of the Court to grant an injunction under section 71ZA
restraining a person from engaging in conduct may be exercised whether or
not—
(a) it
appears to the Court that the person intends to engage again, or to continue
to engage, in conduct of that kind; or
(b) the
person has previously engaged in conduct of that kind; or
(c)
there is an imminent danger of substantial damage to any person if the first
mentioned person engages in conduct of that kind.
71ZE—Factors relevant to granting a mandatory injunction
The power of the Court to grant an injunction under section 71ZA
requiring a person to do a thing may be exercised whether or not—
(a) it
appears to the Court that the person intends to refuse or fail again, or to
continue to refuse or fail, to do that thing; or
(b) the
person has previously refused or failed to do that thing; or
(c)
there is an imminent danger of substantial damage to any person if the first
mentioned person refuses or fails to do that thing.
71ZF—Discharge or variation of injunction or other order
The Court may discharge or vary an injunction or order granted under this
Division.
Division 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 AEMO or another
Registered participant; or
(b) AEMO
is required to pay an amount to a Registered participant,
and that amount is not paid within 28 days after it is due in accordance with
the Rules, the Registered participant to whom the amount is due, or AEMO (as
the case requires), may recover that amount in a relevant court of competent
jurisdiction as a civil debt payable to them.
(2) If, under the
Rules, a Registered participant is required to pay an amount to AEMO or
another Registered participant, or AEMO is required to pay an amount to a
Registered participant, and the Rules do not specify a date for payment of
that amount—
(a) that
amount must be paid within the period of time specified in any notice to pay
issued by the Registered participant or AEMO (as the case requires) that
specifies that amount; and
(b) the
Registered participant that issued the notice to pay, or AEMO (as the case
requires), may, if that amount is not paid within 28 days after it is due in
accordance with that notice, recover that amount in a relevant court of
competent jurisdiction as a civil debt payable to them.
(3)
Subsection (1) and (2) apply despite a Registered participant or AEMO
disputing, in accordance with the Rules, an amount to be paid under the Rules,
or specified in a notice to pay, unless—
(a) the
Rules otherwise provide; or
(b) the
parties to the dispute agree otherwise; or
(c) a
relevant Dispute resolution panel, in a civil claim Rule dispute in respect of
the payment of an amount referred to in subsection (1) or (2), determines
that the relevant subsection does not apply; or
(d) a
relevant court of competent jurisdiction determines that subsection (1)
or (2) does not apply.
(4) In this
section—
civil claim Rule dispute means a dispute between Registered participants, or
between AEMO and a Registered participant, in relation to the payment of an
amount under the Rules in respect of which the Rules provide that the dispute
must be resolved in accordance with the Rules;
relevant Dispute resolution panel means a Dispute resolution panel appointed
to hear and determine a civil claim Rule dispute;
notice to pay includes a statement of payment, settlement statement, bill or
invoice.
Division 5—Infringement notices
In this Division—
relevant civil penalty provision means a civil penalty provision that is not a
rebidding civil penalty provision.
(1) Subject to this
section, the AER may serve an infringement notice on a relevant participant
that it has reason to believe has breached a relevant civil penalty provision.
(1a) The AER must,
however, serve an infringement notice not later than 12 months after the date
on which the AER forms a belief that there has been a breach of a civil
penalty provision.
(2) An infringement
notice may be served on a 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.
An infringement notice must state—
(a) the
date of the notice;
(b) that
the alleged breach is a breach of the relevant civil penalty provision;
(c) the
nature, and a brief description, of the alleged breach;
(d) the
date, time and place of the alleged breach;
(e) the
infringement penalty for the alleged breach;
(f) the
manner in which the infringement penalty may be paid;
(g) the
time (being not less than 28 days after the date on which the notice is
served) within which the infringement penalty must be paid;
(h)
that, if the amount of the infringement penalty is paid before the end of the
time specified in the notice, proceedings will not be instituted in respect of
the alleged breach by the AER unless the notice is withdrawn before the end of
that time in accordance with section 79;
(i)
that the 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.
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.
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.
(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 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;
and
(ii)
not withdrawn by the AER within the time for payment
stated in the notice in accordance with section 79; or
(b) the
infringement penalty is accepted in accordance with section 78.
82—Payment not to have certain consequences
The payment of an infringement penalty under this Division is not and must not
be taken to be an admission of a breach of a relevant civil penalty provision
or an admission of liability for the purpose of any proceeding instituted in
respect of the breach.
83—Conduct in breach of more than one civil penalty provision
(1) If the conduct of
a 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
85—Offences and breaches by corporations
(1) If a corporation
contravenes an offence provision or is in breach of a civil penalty provision,
each officer of the corporation is to be taken to have contravened the offence
provision or to have been in breach of the civil penalty provision if the
officer knowingly authorised or permitted the contravention or breach.
(2) An officer of a
corporation may be proceeded against under an offence provision or civil
penalty provision pursuant to this section whether or not the corporation has
been proceeded against under the provision.
(3) Nothing in this
section affects the liability of a corporation for a contravention of an
offence provision or for a breach of a civil penalty provision.
86—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.
Part 7—The making of the National Electricity Rules
Division 1—General
Subdivision 1—Interpretation
In this Part—
AEMC initiated Rule means a Rule of the kind referred to in
section 91(2);
AEMC Rule review means a review conducted by the AEMC under Division 5 of Part
4;
electricity market regulatory body means—
(a) the
AER;
(b)
AEMO;
(c) the
Reliability Panel;
market initiated proposed Rule means a request for a Rule made under
section 91(1) in respect of which the AEMC publishes a notice under
section 95;
more preferable Rule has the meaning given by section 91A;
non-controversial Rule means a Rule that is unlikely to have a significant
effect on the national electricity market;
proposed Rule means—
(a) a
market initiated proposed Rule; or
(b) a
proposal for an AEMC initiated Rule; or
(c) a
proposed more preferable Rule;
publish means—
(a) in
relation to a notice required to be published under this Part (except
section 90 or 103)—publish in the South Australian Government
Gazette , on the AEMC's website and in a newspaper circulating generally
throughout Australia;
(ab) in
relation to a decision under section 94(2)—publish on the AEMC's
website and make available at the offices of the AEMC;
(b) in
relation to a proposed Rule referred to in section 95 and any other
documents prescribed by the Regulations in relation to a proposed Rule
referred to in section 95—publish on the AEMC's website and make
available at the offices of the AEMC;
(c) in
relation to a draft Rule determination or final Rule
determination—publish on the AEMC's website and make available at the
offices of the AEMC;
(d) in
relation to any submissions or comments received by the AEMC under this
Part—subject to section 108, publish on the AEMC's website and make
available at the offices of the AEMC;
(e) in
relation to a report prepared under section 108A—publish on the
AEMC's website and make available at the offices of the AEMC;
urgent Rule means a Rule relating to any matter or thing that, if not made as
a matter of urgency, will result in that matter or thing imminently
prejudicing or threatening—
(a) the
effective operation or administration of the wholesale exchange operated and
administered by AEMO; or
(b) the
safety, security or reliability of the national electricity system.
Subdivision 2—Rule making tests
88—Application of national electricity objective
(1) The AEMC may only
make a Rule if it is satisfied that the Rule will or is likely to contribute
to the achievement of the national electricity objective.
(2) For the purposes
of subsection (1), the AEMC may give such weight to any aspect of the
national electricity objective as it considers appropriate in all the
circumstances, having regard to any relevant MCE statement of policy
principles.
88A—AEMC must take into account form of regulation factors in certain
cases
In addition to complying with sections 88 and 88B, the AEMC must take
into account the form of regulation factors and any other matter the AEMC
considers relevant—
(a) in
making a Rule that—
(i)
specifies an electricity network service as a direct
control network service or negotiated network service; or
(ii)
confers a function or power on the AER to specify under a
network revenue or pricing determination an electricity network service (to
which the relevant determination applies) as—
(A) a direct control network service; or
(B) a negotiated network service; or
(b) in
revoking a Rule that has been made or is in force that—
(i)
specifies an electricity network service as a direct
control network service or negotiated network service; or
(ii)
confers a function or power on the AER to specify under a
network revenue or pricing determination an electricity network service (to
which the relevant determination applies) as—
(A) a direct control network service; or
(B) a negotiated network service.
88B—AEMC must take into account revenue and pricing principles in
certain cases
In addition to complying with sections 88 and 88A, the AEMC must take
into account the revenue and pricing principles in making a Rule for or with
respect to any matter or thing specified in items 15 to 24 and 25 to 26J
of Schedule 1 to this Law.
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—Minister initiated 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.
90A—South Australian Minister to make further Rules relating to
distribution determinations consumer advocacy and other matters
(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—
(a) for
or with respect to any matter or thing referred to in—
(i)
items 14A and 14B of Schedule 1 to this Law; and
(ii)
items 25 to 26H of Schedule 1 to this Law; and
(iii)
items 26I and 26J of Schedule 1 to this Law as they
relate to distribution determinations and access determinations relating to
access disputes about access to electricity network services provided by means
of a distribution system;
(iv)
items 26K, 30A to 30D and 34A to 34C of Schedule 1 to
this Law;
(b) for
or with respect to any matter or thing contemplated by, or is necessary or
expedient for the purposes of the items of Schedule 1 to this Law referred to
in paragraph (a);
(c) that
revoke or amend a Rule as a consequence of the enactment of the Australian
Energy Market Commission Establishment (Consumer Advocacy Panel) Amendment Act
2007 of South Australia.
(2) Despite anything
to the contrary in this Law, the Minister referred to in subsection (1)
may make a Rule under this section that is a derogation without a request from
any person.
(3) Section 34(3)
applies to the making of Rules under subsection (1) as if the Rules being
made under subsection (1) were Rules being made by the AEMC.
(4) As soon as
practicable after making Rules under subsection (1), the Minister
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.
(5) The notice
referred to in subsection (4)(a) must state—
(a) the
date on which the Rules commence operation; or
(b) if
different Rules will commence operation on different dates, those dates.
(6) The Rules made
under subsection (1) may only be made on the recommendation of the MCE.
(7) If the Minister
referred to in subsection (1) makes Rules under that subsection, the
Minister cannot make another Rule under that subsection.
90B—South Australian Minister to make initial Rules related to AEMO's
functions under this Law
(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 (the
South Australian Minister ) may make Rules on any 1 or more of the following
subjects:
(a)
AEMO’s statutory functions (including the additional advisory functions
and the declared network functions);
(b) the
subject matter of a new head of power added to Schedule 1 by the AEMO
amendments;
(c) any
other subject contemplated by, or consequential on, the AEMO amendments.
(2) Rules may only be
made under subsection (1) on the recommendation of the MCE.
(3) Rules in the
nature of a derogation may be made under subsection (1) even though there
may not have been a request for a derogation.
(4) Section 34(3)
applies to Rules made under subsection (1) in the same way as it applies
to Rules made by the AEMC.
(5) As soon as
practicable after making Rules under subsection (1), the South Australian
Minister must—
(a)
publish in the South Australian Government Gazette notice of the making of the
Rules stating the date of commencement of the Rules or, if different Rules
commence at different times, the various dates of commencement; and
(b) make
the Rules publicly available.
(6) Once the first
Rules have been made under subsection (1), no further Rules can be made
under that subsection.
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) The AEMC must not
make a Rule without a request under subsection (1) unless—
(a) it
considers the Rule corrects a minor error in the Rules; or
(b) it
considers the Rule involves a non-material change to the Rules; or
(c) the
Rule is in respect of any matter that is prescribed by the Regulations as a
matter on which it may make a Rule on its own initiative.
(3) A 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) AEMO may itself,
or on behalf of itself and a Registered participant or a class of Registered
participant, request the AEMC to make a participant derogation that relates to
(as the case requires)—
(a) it;
or
(b) it
and the Registered participant; or
(c) it
and the class of Registered participant.
(7) A request for a
Rule regulating AEMO’s declared network functions may only be made
by—
(a)
AEMO; or
(b) a
declared transmission system operator that is a party to a network agreement
with AEMO; or
(c) a
Minister of an adoptive jurisdiction.
(8) The AEMC may only
make a Rule that has effect with respect to an adoptive jurisdiction if
satisfied that the proposed Rule is compatible with the proper performance of
AEMO’s declared network functions.
(9) The AEMC may only
make a Rule that affects the allocation of powers, functions and duties
between AEMO and a declared transmission system operator if—
(a) AEMO
consents to the making of the Rule; or
(b) the
Rule is requested by the Minister of the relevant adoptive jurisdiction.
91A—AEMC may make more preferred Rule in certain cases
The AEMC may make a Rule that is different (including materially different)
from a market initiated proposed Rule (a more preferable Rule ) if the AEMC is
satisfied that, having regard to the issue or issues that were raised by the
market initiated proposed Rule (to which the more preferable Rule relates),
the more preferable Rule will or is likely to better contribute to the
achievement of the national electricity objective.
91B—AEMC may make Rules that are consequential to a Rule request
(1) Despite
section 91(2), the AEMC may, having regard to a request to make a Rule
under section 91(1), make a Rule that is necessary or consequential to
the Rule that is to be made on that request.
(2) For the purposes
of this Part, the AEMC must treat a Rule it may make under subsection (1)
as if it were part of the Rule to be made on that request.
92—Contents of requests for Rules
(1) A request for the
making of a Rule—
(a) must
contain the information prescribed by the Regulations; and
(ab)
must, subject to section 92A, be accompanied by the fee prescribed by the
Regulations (if any); and
(b) may
be accompanied by a draft of the Rule to be made.
(2) A request for the
making of a participant derogation must specify a date on which the
participant derogation, if made, will expire.
(3) A request for the
making of a jurisdictional derogation may specify a date on which
the jurisdictional derogation, if made, will expire.
92A—Waiver of fee for Rule requests
The AEMC may waive the payment of any fee prescribed by the Regulations for
the purposes of section 92.
93—Consolidation of 2 or more Rule requests
(1) If the AEMC
considers it necessary or desirable that 2 or more requests for the making of
a Rule should be dealt with together, the AEMC may—
(a)
treat those requests as 1 request for the purposes of this Part (a
consolidated Rule request ); or
(b)
treat any later request as a submission in relation to the earliest Rule
request.
(2) For the purposes
of this Part, the AEMC may treat a consolidated Rule as being received by it
on the day it receives either the first or last of the Rule requests forming
part of the consolidated Rule request.
94—Initial consideration of request for Rule
(1) Subject to this
Part, as soon as practicable after receiving a request for the making of a
Rule, the AEMC must consider whether—
(a) the
request for the Rule appears to—
(i)
contain the information prescribed by the Regulations;
and
(ii)
not be misconceived or lacking in substance; and
(b) the
subject matter of the request appears to be for or with respect to a matter in
respect of which the AEMC may make a Rule under this Law; and
Note—
Section 34 and Schedule 1 to this Law specify the subject matter for
Rules.
(c) the
subject matter of the request appears to relate to the subject matter
of—
(i)
a Rule made, or a request for the making of a Rule under
section 91(1) not proceeded with, in the 12 months immediately
before the date of receipt of the request; or
(ii)
another request for the making of a Rule under
section 91(1) in respect of which the AEMC is taking action under this
Part.
(2) If the AEMC
considers that, having regard to the matters set out in subsection (1),
it should not take any action under this Division in respect of the request
for the making of the Rule, the AEMC must make a decision to that effect and
inform the person or body, in writing, that requested the Rule of that
decision.
(3) Despite
subsection (1) or (2), the AEMC may make a decision to the effect that it
should not take any action under this Division in respect of the request for
the making of the Rule if the person or body that made the request has not
complied with a notice in accordance with section 94A.
(4) In making a
decision under subsection (3), the AEMC must have regard to any
representation it receives under section 94A(4).
(5) A decision under
subsection (2) or (3) must—
(a) set
out the reasons for the decision; and
(b) be
given to the person or body that made the request without delay; and
(c) in
the case where the decision was made only because of the matters set out in
subsection (1)(c)—be published.
(6) Subject to this
Part, if the AEMC considers that, having regard to the matters set out in
subsection (1), it should take action under this Division in respect of
the request for the making of the Rule, the AEMC must publish notice of the
request for the making of a Rule in accordance with section 95.
94A—AEMC may request further information from Rule proponent in certain
cases
(1) This section
applies if the AEMC—
(a)
receives a request for the making of a Rule under section 91(1); and
(b)
considers, having regard to the nature and content of the request, that
further information is required from the person or body that has made the
request to assist it to understand the request's purpose or content.
(2) The AEMC may, by
notice in writing, request the person or body that made the request under
section 91(1) to provide the AEMC further information.
(3) A notice under
subsection (2) must specify—
(a) the
kind of information the AEMC requires from the person or body; and
(b) the
time within which that information must be provided to the AEMC.
(4) A person or body
given a notice under this section may make a written representation to the
AEMC as to why it cannot provide the information specified in the notice
within the time specified in the notice.
(1) This section
applies if the AEMC—
(a)
considers that it should take action under this Division in respect of a
request for the making of a Rule; or
(b)
forms an intention to make an AEMC initiated Rule.
(1a) The AEMC must
publish—
(a)
notice of the request or intention (as the case requires); and
(b) a
draft of the proposed Rule; and
(c) any
other document prescribed by the Regulations.
(2) A notice published
under this section must—
(a)
invite written submissions and comments from any person or body in relation to
the proposed Rule by the date specified in the notice by the AEMC, being a
date that is not less than 4 weeks from the date the notice is published; and
(b)
contain any other information prescribed by the Regulations.
(3) Nothing in this
Division is to be taken as requiring the AEMC to publish notices under this
section in the same order as it—
(a)
considers that it should take action under this Division in respect of a
request for the making of a Rule; or
(b)
forms an intention to make an AEMC initiated Rule.
96—Publication of non-controversial or urgent final Rule determination
(1) Subject to this
section, if the AEMC considers that—
(a) an
AEMC initiated Rule is a non-controversial Rule; or
(b) a
request for a Rule is a request for a non-controversial Rule; or
(c) a
request for a Rule is a request for an urgent Rule,
the AEMC may make the relevant Rule in accordance with this Division (except
sections 98 to 101) and as if the period of time within which the final
Rule determination in respect of the relevant Rule must be published were 6
weeks from the date of publication of the notice under section 95.
(2) Before making a
Rule as set out in subsection (1), the AEMC must include in a notice
under section 95 a statement to the effect that the AEMC may make the
relevant Rule if the AEMC does not receive a written request, and reasons, not
to do so from any person or body within 2 weeks of publication of that notice.
(3) The AEMC must not
make a Rule in accordance with this section if, following publication of a
notice under section 95 containing a statement to the effect set out in
subsection (2)—
(a) the
AEMC receives a written request not to do so; and
(b) the
reasons set out in that request are not, in its opinion, misconceived or
lacking in substance.
(4) If the AEMC is of
the opinion that the reasons given by a person or body in a written request
for it not to make the non-controversial Rule or urgent Rule are misconceived
or lacking in substance, the AEMC must—
(a) make
a decision to that effect; and
(b) give
the person or body its reasons, in writing, for that decision without delay.
(5) If the AEMC is of
the opinion that the reasons given by a person or body in a written request
for it not to make the non-controversial Rule or urgent Rule, are not
misconceived or lacking in substance, the AEMC must publish a notice to the
effect that it will make the relevant Rule in accordance with this Division
(other than this section).
96A—"Fast track" Rules where previous public consultation by electricity
market regulatory body or an AEMC review
(1) This section
applies if—
(a) an
electricity market regulatory body has—
(i)
made a request for the making of a Rule under
section 91(1); and
(ii)
consulted with the public on the nature and content of
the request before making that request; or
(b) a
person or the MCE has made a request for the making of a Rule under
section 91(1) on the basis of—
(i)
a recommendation for the making of a Rule contained in a
MCE directed review; or
(ii)
a conclusion for the making of a Rule contained in an
AEMC Rule review.
(2) The AEMC may take
action under this Division in respect of the request without complying with
section 95(2)(a) or 98 if it is of the opinion that—
(a) in
the case where the request has been made by an electricity market regulatory
body in the circumstances described in subsection (1)(a)—the
consultation conducted by the electricity market regulatory body was adequate,
having regard to—
(i)
the nature and content of that request; and
(ii)
the kind of consultation conducted by the electricity
market regulatory body;
(b) in
the case where the request has been made by a person or the MCE in the
circumstances described in subsection (1)(b)—
(i)
the request reflects, or is consistent with, the relevant
recommendation contained in the MCE directed review or relevant conclusion in
the AEMC Rule review (as the case requires); and
(ii)
there was adequate consultation with the public by the
AEMC on the content of the relevant recommendation or relevant conclusion
during the MCE directed review or AEMC Rule review (as the case requires).
(3) To avoid
doubt—
(a)
section 94 applies to a request for the making of a Rule to which this
section applies; and
(b)
section 97 does not apply to a request for the making of a Rule to which
this section applies.
97—Right to make written submissions and comments
Any person or body, within the period specified in a notice under
section 95, may make a written submission or comment in relation to the
proposed Rule to which the notice relates.
98—AEMC may hold public hearings before draft Rule determination
(1) The AEMC may (but
need not), at any time after publication of a notice under section 95 and
before making a draft Rule determination, hold a hearing in relation to any
proposed Rule.
(2) Notice of a
hearing held under this section must—
(a) be
published; and
(b)
contain the information prescribed by the Regulations (if any).
(1) The AEMC must make
a draft Rule determination before making a final Rule determination in
relation to the proposed Rule.
(1a) Subject to this
Part, the AEMC must, within 10 weeks after the date specified in a notice
under section 95, publish—
(a) the
draft Rule determination; and
(b)
notice of the making of the draft Rule determination.
(1b) In the case of a
proposed Rule to which section 96A applies, the AEMC must publish the
draft Rule determination and notice of the making of the draft Rule
determination within 5 weeks after the date notice under section 95(1a)
is published.
(2) A draft Rule
determination must contain—
(a) the
reasons of the AEMC as to whether or not it should make the proposed Rule,
including—
(i)
in the case where the proposed Rule is not a proposed
more preferable Rule, the reasons of the AEMC as to whether it is satisfied
the proposed Rule will or is likely to contribute to the achievement of the
national electricity objective; and
(ii)
in the case of a proposed more preferable Rule, the
reasons of the AEMC as to whether it is satisfied the proposed more preferable
Rule will or is likely to better contribute to the achievement of the national
electricity objective than the market initiated Rule request to which the more
preferable Rule relates; and
(iii)
if the AEMC is required to take into account the form of
regulation factors or the revenue and pricing principles, the reasons of the
AEMC taking those factors or principles (as the case requires) into account;
and
(iv)
the reasons of the AEMC having regard to any relevant MCE
statement of policy principles; and
(v)
the reasons of the AEMC having regard to any other
matters the AEMC considers relevant; and
(b) if
the AEMC determines to make a Rule, a draft of the Rule to be made; and
(c) any
other matters that are prescribed by the Regulations.
(3) The draft of the
Rule to be made need not be the same as the draft of the proposed Rule to
which the notice under section 95 relates.
(4) A notice referred
to in subsection (1a) must—
(a)
invite written submissions and comments from any person or body in relation to
the determination within a period specified by the AEMC, being a period not
less than 6 weeks from the date of publication of the notice; and
(b)
include a statement to the effect that any interested person or body may
request, in writing within one week after the publication of the notice, the
AEMC to hold a hearing in accordance with section 101; and
(c)
contain any other information prescribed by the Regulations.
100—Right to make written submissions and comments in relation to draft
Rule determination
Any person or body, within the period specified in a notice under
section 99(1a)(b), may make a written submission or comment in relation
to a draft Rule determination to which the notice relates.
101—Pre-final Rule determination hearings
(1) The AEMC may (but
need not), at any time after publication of a notice under
section 99(1a)(b) and before making a final Rule determination, hold a
hearing in relation to a draft Rule determination.
(1a) In addition, any
person or body may request, in writing, within 1 week after the publication of
a notice under section 99(1a)(b), the AEMC to hold a hearing in relation
to a draft Rule determination.
(2) Despite
subsection (1), the AEMC may decide not to a hold a hearing in relation
to a draft Rule determination.
(2a) Without limiting
the reasons why the AEMC may decide not to hold a hearing in relation to a
draft Rule determination, the AEMC may decide not to hold a hearing if—
(a) the
person or body that requests the AEMC to hold a hearing does not make a
written submission or comment in accordance with section 100; and
(b) no
other person or body requests the AEMC to hold a hearing.
(3) If the AEMC
decides not to hold a hearing after a request under subsection (2), it
must give the person or body that requested the hearing its reasons, in
writing, for declining that person's or body's request.
(4) If the AEMC
decides to hold a hearing, or agrees to hold a hearing after a request under
subsection (1a), the AEMC must—
(a)
appoint a date (being not later than 3 weeks after the date of publication of
the notice under section 99), time and place for the holding of the
hearing; and
(b)
publish a notice of that date, time and place.
(1) Subject to
section 102A, the AEMC must make a final Rule determination as to whether
to make a proposed Rule.
(1a) Subject to this
Part, the AEMC must, within 6 weeks after the period for written submissions
or comments in relation to the draft Rule determination ends, publish—
(a) the
final Rule determination; and
(b)
notice of the making of the final Rule determination.
(2) A final Rule
determination must contain—
(a) the
reasons of the AEMC as to whether or not it should make a Rule,
including—
(i)
in the case where the Rule to be made is not a more
preferable Rule, the reasons of the AEMC as to whether it is satisfied the
Rule will or is likely to contribute to the achievement of the national
electricity objective; and
(ii)
in the case where the Rule to be made is a more
preferable Rule, the reasons of the AEMC as to whether it is satisfied the
more preferable Rule to be made will or is likely to better contribute to the
achievement of the national electricity objective than the market initiated
Rule request to which the more preferable Rule relates; and
(iii)
if the AEMC is required to take into account the form of
regulation factors or the revenue and pricing principles, the reasons of the
AEMC taking those factors or principles (as the case requires) into account;
and
(iv)
the reasons of the AEMC having regard to any relevant MCE
statement of policy principles; and
(v)
the reasons of the AEMC having regard to any other
matters the AEMC considers relevant; and
(b) any
other matters that are prescribed by the Regulations.
(3) A notice referred
to in subsection (1a) must contain the information prescribed by the
Regulations.
102A—Proposal to make more preferable Rule
(1) If, in view of the
response to a draft Rule determination, the AEMC proposes to make a more
preferable Rule, the AEMC may—
(a)
make, and publish notice of, a draft Rule determination in respect of the
proposed more preferable Rule; or
(b)
make, and publish notice of, a final Rule determination for the proposed more
preferable Rule.
(2) The final Rule
determination, or further draft Rule determination, and the related notice,
must be published within 6 weeks after the end of the period for
submissions or comments on the earlier draft Rule determination.
(1) Subject to this
section, if the AEMC, in its final Rule determination, determines to make a
Rule, the AEMC must make the relevant Rule as soon as practicable after the
publication of the final Rule determination.
(2) Notice of the
making of the Rule must be published in the South Australian Government
Gazette as soon as practicable after the making of the Rule.
(3) The Rule that is
made in accordance with subsection (1) need not be the same as the draft
of the proposed Rule to which a notice under section 95 relates or the
draft of a Rule contained in a draft Rule determination.
(4) In the case
of—
(a) a
participant derogation; or
(b) a
jurisdictional derogation where the request for the derogation specified a
date on which the derogation will expire,
the AEMC must not make the derogation unless that derogation specifies a date
on which it will expire.
104—Operation and commencement of Rule
A Rule made under section 103 commences operation on the day the relevant
notice is published in the South Australian Government Gazette or on any day
after that day that is provided for in the relevant notice or the Rule.
105—Rule that is made to be published on website and made available to
the public
On publication of a notice in accordance with section 103(2), the AEMC
must, without delay—
(a)
publish the Rule on its website; and
(b) make
copies of the Rule available to the public at its offices.
106—Evidence of the National Electricity Rules
A document purporting to be a copy of—
(a) the
National Electricity Rules; or
(b) the
initial National Electricity Rules; or
(c) an
amendment to the initial National Electricity Rules or the National
Electricity Rules,
endorsed with a certificate to which the seal of the AEMC has been duly
affixed certifying the document is such a copy, is evidence that the document
is such a copy.
Division 4—Miscellaneous provisions relating to Rule making by the AEMC
107—Extensions of periods of time in Rule making procedure
(1) Despite anything
to the contrary in this Part, the AEMC may, by notice, extend a period of time
specified in Division 3 if the AEMC considers that a request for a Rule raises
issues of sufficient complexity or difficulty or there is a material change in
circumstances such that it is necessary that the relevant period of time
specified in Division 3 be extended.
(2) A notice under
subsection (1) must—
(a) be
published; and
(b) set
out the period of time specified in Division 3 to be extended; and
(c)
specify a new period of time to apply in the place of the period of time
specified in Division 3.
(2a) A notice under
subsection (1) may be published at the same time as a notice under
section 95.
(3) The AEMC may only
extend a period of time under this section before the expiry of that time.
107A—AEMC may extend period of time for making of final Rule
determination for further consultation
(1) This section
applies if—
(a) a
person or body raises an issue in—
(i)
a submission or comment in relation to a draft Rule
determination; or
(ii)
a hearing held under section 98 or 101; and
(b) the
AEMC considers the issue raised by the person or body requires further public
consultation in relation to the proposed Rule or draft Rule determination.
(2) Despite anything
to the contrary in this Part and without limiting section 107, the AEMC
may, by notice, extend the period of time specified in section 102 within
which it must make a final Rule determination.
(3) A notice under
subsection (2) must—
(a) be
published; and
(b)
specify a new period of time to apply in the place of the period of time
specified in section 102; and
(c)
specify the issue on which the AEMC requires further public submissions and
comments; and
(d)
invite written submissions and comments from any person or body by the date
specified in the notice.
(4) The new period of
time must not have the effect of extending the relevant period of the time
specified in section 102 by more than 4 weeks.
(5) The AEMC may only
extend the period of time under this section before the expiry of the time
specified in section 102.
(6) Any person or
body, within the period specified in a notice under subsection (2) may
make a written submission or comment in relation to the issue specified in the
notice.
108—AEMC may publish written submissions and comments unless
confidential
(1) Subject to this
section, the AEMC may publish any information in any written submission or
comment given to it under this Part unless—
(a) the
person or body who gave the information, claims, when giving it to the AEMC,
that it contains confidential information; and
(b) the
AEMC decides that the written submission or comment contains confidential
information.
(2) A written
submission or comment given to the AEMC under this Part that has been claimed
under this section to contain confidential information, and that the AEMC has
decided contains confidential information, may be published if that
information is omitted.
(3) If information is
omitted from a published written submission or comment given to the AEMC under
this Part as being confidential information, a note to that effect must be
included in the submission or comment at the place in the submission or
comment from which the information is omitted.
Note—
See also section 31 of this Law and section 24 of the Australian Energy
Market Commission Establishment Act 2004 of South Australia.
108A—AEMC must publicly report on Rules not made within 12 months of
public notification of requests
(1) This section
applies if the AEMC—
(a)
publishes a notice under section 95 in respect of a request for the
making of a Rule; but
(b) does
not make a final Rule determination in respect of that request within
12 months after the publication of that notice (the report trigger date
).
(2) The AEMC must
prepare a report on the request as soon as practicable after the report
trigger date.
(3) A report prepared
under this section must—
(a)
contain the reasons why the final Rule determination has not been made within
12 months after the publication of the notice under section 95; and
(b)
specify when the AEMC considers it will make the final Rule determination; and
(c) be
published.
Part 8—Safety and security of the National Electricity System
In this Part—
AEMO load shedding procedures means procedures developed under
section 112;
jurisdictional load shedding guidelines means guidelines prepared under
section 111;
sensitive loads means the loads or classes of loads specified as such in
jurisdictional load shedding guidelines.
110—Appointment of jurisdictional system security coordinator
(1) A Minister of
this jurisdiction may, for the purposes of this Law and the Rules, appoint a
person to be the jurisdictional system security coordinator for
this jurisdiction.
(2) An appointment
under subsection (1) must be in writing.
(3) AEMO is eligible
for appointment as a jurisdictional system security coordinator for 1 or more
participating jurisdictions.
(4) In its capacity as
a jurisdictional system security coordinator for a participating jurisdiction,
AEMO is subject to direction by the Minister for the relevant jurisdiction
with respect to—
(a)
jurisdictional load shedding guidelines; and
(b) the
order in which loads are to be shed or restored; and
(c) the
classification of loads as sensitive; and
(d) the
sensitive loads that are not to be shed or restored without the
Minister’s approval.
111—Jurisdictional system security coordinator to prepare jurisdictional
load shedding guidelines
(1) The jurisdictional
system security coordinator must, subject to the Rules, prepare, maintain, and
if necessary, update guidelines in relation to the shedding, and restoration,
of loads in this jurisdiction for—
(a) the
purpose of enabling AEMO to maintain power system security; or
(b)
reasons of public safety.
(2) The guidelines
must specify—
(a)
loads or classes of loads as sensitive loads; and
(b)
requirements in relation to the shedding and restoration of loads that AEMO
must comply with, in accordance with the Rules, in the event that it is
necessary to do so for AEMO to maintain power system security, or for reasons
of public safety.
(3) The guidelines
must also specify the following lists—
(a) a
list of sensitive loads or classes of sensitive loads in this
jurisdiction—
(i)
to be shed and restored and the order in which those
loads are to be shed or restored in the event that it is necessary to do so
for AEMO to maintain power system security, or for reasons of public safety;
and
(ii)
which must not be shed, or the restoration of which must
not be prevented, without the prior approval of the jurisdictional system
security coordinator; and
(b) a
list of loads or classes of loads (other than sensitive loads) to be shed and
restored in this jurisdiction and the order in which those loads are to be
shed or restored in the event that it is necessary to do so for AEMO to
maintain power system security, or for reasons of public safety.
(4) If AEMO is not
the jurisdictional system security coordinator, the coordinator must give a
copy of the jurisdictional load shedding guidelines and any updated guidelines
to AEMO.
(5) The jurisdictional
load shedding guidelines must reflect the terms of any relevant agreement or
determination about load shedding under section 115A.
112—AEMO to develop load shedding procedures for each participating
jurisdiction
(1) AEMO must, in
accordance with the Rules, develop, maintain, and if necessary, update
procedures in relation to the manner in which loads or classes of loads
(including sensitive loads) will be shed or restored—
(a) in
this jurisdiction in accordance with the jurisdictional load shedding
guidelines; and
(b) as
between participating jurisdictions.
(2) AEMO (if not
the jurisdictional system security coordinator) must give to
the jurisdictional system security coordinator a copy of the AEMO load
shedding procedures, and any updated procedures, applicable to this
jurisdiction.
(3) The procedures
must be consistent with the relevant jurisdictional load shedding guidelines.
(1) For the purpose of
enabling AEMO to maintain power system security, or for reasons of public
safety, the relevant authorities may exchange information about loads and load
shedding in the participating jurisdictions.
(2) A relevant
authority must pass on information about loads and load shedding to the
Minister of a particular participating jurisdiction so far as the information
may be necessary—
(a) to
enable the Minister—
(i)
to manage the safety and security of those parts of the
national electricity system in the participating jurisdiction; or
(ii)
to manage the safety and security of a gas system in the
participating jurisdiction; or
(b) for
reasons of public safety.
(3) The Minister may
give information received under subsection (2) to other Ministers or
officials responsible for public safety, or power system or gas system safety
or security, in a participating jurisdiction.
(4) A person to whom
information is disclosed under subsection (3) must not further disclose
the information unless the further disclosure is to a Minister or officials
responsible for public safety, or power system or gas system safety or
security in a participating jurisdiction.
(5) In this
section—
information includes confidential information relating to loads or classes of
loads given to AEMO by a Registered participant;
information about loads and load shedding means information about—
(a)
loads and classes of loads in a particular participating jurisdiction; and
(b) the
possibility or probability that the supply of electricity will prove
insufficient to meet the loads or some other reason for load shedding may
arise; and
(c) the
loads to be shed in the event of insufficiency of supply or for any other
reason in accordance with—
(i)
the Rules; or
(ii)
jurisdictional load shedding guidelines; or
(iii)
AEMO load shedding procedures;
relevant authority means—
(a)
AEMO; or
(b) a
jurisdictional system security coordinator.
114—AEMO to ensure maintenance of supply of sensitive loads
AEMO must use its reasonable endeavours to ensure that the national
electricity system is operated in a manner that maintains the supply to
sensitive loads.
115—Shedding and restoring of loads
(1) Subject to
subsection (2), if AEMO considers that it is necessary for loads to be
shed in this jurisdiction to maintain power system security, or for reasons of
public safety, AEMO may direct the shedding or restoration of loads (including
sensitive loads) in this jurisdiction in accordance with the AEMO load
shedding procedures developed for this jurisdiction.
(2) AEMO must use
reasonable endeavours to obtain the approval of the jurisdictional system
security coordinator before directing the shedding, or preventing the
restoration of, sensitive loads or a class of sensitive loads that
the jurisdictional system security coordinator has listed in the
jurisdictional load shedding guidelines as requiring the coordinator's
approval before—
(a)
those loads or classes of loads may be shed; or
(b) the
restoration of those loads or classes of loads may be prevented.
(3) The jurisdictional
system security coordinator must not unreasonably withhold the approval
referred to in subsection (2).
(4)
Subsections (2) and (3) are inapplicable where AEMO is itself the
jurisdictional system security coordinator.
115A—Determination of customer load shedding arrangement
(1) AEMO may, with the
approval of the Minister of a participating jurisdiction, enter into an
agreement with a Registered participant to determine the arrangements to apply
to customer load shedding in the relevant participating jurisdiction where the
available supply of electricity is, or is likely to become, less than
sufficient for the reasonable requirements of the community.
(2) If AEMO is unable
to reach agreement with a Registered participant about load shedding
arrangements within 6 months after AEMO offers to enter into an agreement
with the Registered participant for that purpose, the Minister may determine
those arrangements.
(3) The Minister must,
at least 14 days before arrangements take effect under
subsection (2), give the Registered participant and AEMO written notice
of the arrangements.
(4) The Minister may
appoint a person to review and advise the Minister on any proposed
arrangements under this section.
(5) In determining
load shedding arrangements, the Minister must take into account the need
to—
(a)
protect the national electricity system; and
(b)
ensure the safe and effective supply of electricity; and
(c)
ensure that the available supply of electricity is fairly distributed to the
community; and
(d)
increase the available supply of electricity; and
(e)
regulate the use of the available supply of electricity, having regard to the
needs of the community.
(6) AEMO must publish
any arrangements determined under this section on its website.
116—Actions that may be taken to ensure safety and security of national
electricity system
(1) AEMO may, if it
considers that it is necessary—
(a) to
maintain power system security; or
(b) for
reasons of public safety,
direct a Registered participant, or authorise a person to direct a Registered
participant, or subject to subsection (2), authorise a person, to take
one or more relevant actions in accordance with the Rules.
(2) A person
authorised under subsection (1) must not take any relevant action unless
the person has directed the Registered participant to take the action and the
Registered participant has failed to take the action within a reasonable
period.
(2a) A direction under
this section should, if practicable, be consistent with load shedding
arrangements agreed or determined under section 115A.
(3) AEMO does not
incur any civil monetary liability for any relevant action taken by a
Registered participant in accordance with a direction given by it under this
section unless the direction is given in bad faith.
(4) A person who
directs a Registered participant to take a relevant action, or who takes a
relevant action in accordance with an authorisation under subsection (1),
does not incur any civil monetary liability for the action taken by the
Registered participant or by the person unless the person gives the direction,
or takes the relevant action, in bad faith.
(5) A Registered
participant does not incur any civil monetary liability for a relevant action
taken in accordance with a direction given to it under this section unless
that action is taken in bad faith
(6) In this
section—
relevant action means—
(a) to
switch off, or re-route, a generator;
(b) to
call equipment into service;
(c) to
take equipment out of service;
(d) to
commence operation or maintain, increase or reduce active or reactive power
output;
(e) to
shut down or vary operation;
(f) to,
in accordance with the Rules and any procedures made in accordance with the
Rules in relation to load shedding, shed or restore load;
(g) to
do any other act or thing necessary to be done to maintain power system
security or for reasons of public safety.
117—AEMO to liaise with Minister of this jurisdiction and others during
an emergency
(1) AEMO must, if
required to do so by reason, or as a result, of an emergency direction, liaise
with—
(a) a
Minister or the jurisdictional system security coordinator of this
jurisdiction; or
(b) if
the Minister or jurisdictional system security coordinator has nominated
another person as the person with whom AEMO must liaise, that person.
(2) In this
section—
emergency direction means any direction given or issued, or order given, under
or in accordance with any legislation of this jurisdiction, or instrument made
under or for the purposes of that legislation, during an emergency in
this jurisdiction.
118—Obstruction and non-compliance
(1) A person must not,
without reasonable excuse, obstruct or hinder a person in the exercise of a
power under section 116.
Maximum penalty:
(a) in
the case of a natural person—$20 000;
(b) in
the case of a body corporate—$100 000.
(2) A person must not,
without reasonable excuse, fail to comply with a direction under
section 116.
Maximum penalty:
(a) in
the case of a natural person—$20 000;
(b) in
the case of a body corporate—$100 000.
Part 9—Immunities
119—Immunity of AEMO and network service providers
(1) AEMO or an officer
or employee of AEMO does not incur any civil monetary liability for an act or
omission in the performance or exercise, or purported performance or exercise,
of a function or power of AEMO under this Law or the Rules unless the act or
omission is done or made in bad faith or through negligence.
(2) A network service
provider or an officer or employee of a network service provider does not
incur any civil monetary liability for an act or omission in the performance
or exercise, or purported performance or exercise, of a system operations
function or power unless the act or omission is done or made in bad faith or
through negligence.
(3) The civil monetary
liability for an act or omission of a kind referred to in subsection (1)
or (2) done or made through negligence may not exceed the prescribed maximum
amount.
(4) The Regulations
may, for the purposes of subsection (3), without limitation—
(a)
prescribe a maximum amount that is limited in its application to persons,
events, circumstances, losses or periods specified in the Regulations;
(b)
prescribe maximum amounts that vary in their application according to the
persons to whom or the events, circumstances, losses or periods to which they
are expressed to apply;
(c)
prescribe the manner in which a maximum amount is to be divided amongst
claimants.
(5) AEMO or a network
service provider may enter into an agreement with a person varying or
excluding the operation of a provision of this section and, to the extent of
that agreement, that provision does not apply.
(6) This section does
not apply to any liability of an officer or employee of a body corporate to
the body corporate.
(7) In this
section—
system operations function or power means a function or power prescribed as a
system operations function or power.
120—Immunity in relation to failure to supply electricity
(1) A Registered
participant or AEMO, or an officer or employee of a Registered participant or
AEMO, does not incur any civil monetary liability for any partial or total
failure to supply electricity unless the failure is due to an act or omission
done or made by the Registered participant or AEMO, or the officer or employee
of a Registered participant or AEMO, in bad faith or through negligence.
(2) A Registered
participant or AEMO may enter into an agreement with a person varying or
excluding the operation of subsection (1) and, to the extent of that
agreement, that subsection does not apply.
(3) This section does
not apply—
(a) to
AEMO or an officer or employee of AEMO in relation to an act or omission in
the performance or exercise, or purported performance or exercise, of a
function or power of AEMO under this Law or the Rules; or
(b) to a
network service provider or an officer or employee of a network service
provider in relation to an act or omission in the performance or exercise, or
purported performance or exercise, of a system operations function or power;
or
(c) to
any liability of an officer or employee of a body corporate to the body
corporate.
(4) In this
section—
system operations function or power has the same meaning as in
section 119.
120A—Immunity in relation to use of computer software
(1) A protected person
incurs no civil monetary liability for loss or damage suffered by a Registered
participant or other person in consequence of the use of computer software to
operate the national electricity market.
(2) In this
section—
protected person means any of the following:
(a)
AEMO;
(b) an
officer, employee or agent of AEMO.
120B—Immunity from liability—dispute resolution
(1) A protected person
incurs no civil monetary liability for an act or omission in the exercise of
powers or functions related to dispute resolution under the Rules unless the
act or omission is done or made in bad faith.
(2) In this
section—
protected person means—
(a) a
person appointed under the Rules to manage and facilitate dispute resolution
under or in relation to the Rules; or
(b) an
arbitrator, mediator or other person appointed to resolve disputes, or assist
in dispute resolution, under or in relation to the Rules; or
(c) a
person or class of persons to which the protection of this section is extended
by the Regulations.
121—Immunity from personal liability of AEMC officials
(1) No personal
liability attaches to an AEMC official for an act or omission in good faith in
the performance or exercise, or purported performance or exercise of a
function or power under this Law, the Regulations or the Rules.
(2) A liability that
would, but for subsection (1), lie against an AEMC official lies instead
against the AEMC.
(3) In this
section—
AEMC official means—
(a) a
member of the AEMC;
(b) the
chief executive of the AEMC;
(c) a
member of staff appointed by the AEMC.
122—Immunity from personal liability of Reliability Panel
(1) No personal
liability attaches to a person appointed to the Reliability Panel for an act
or omission in good faith in the performance or exercise, or purported
performance or exercise, of a function or power of the Reliability Panel under
this Law, the Regulations or the Rules.
(2) A liability that
would, but for subsection (1), lie against a person appointed to the
Reliability Panel lies instead against the AEMC.
Part 10—Access Disputes
Division 1—Interpretation and application
In this Part—
dispute hearing means a hearing conducted by the AER for the purpose of making
an access determination;
party , in relation to an access dispute, has the meaning given by
section 127.
124—Part does not limit how disputes about access may be raised or dealt
with
This Part is not to be taken to limit how a dispute about access to an
electricity network service may be raised or dealt with.
Division 2—Notification of access dispute
125—Notification of access dispute
(1) Subject to this
section, if a prospective network service user or network service user is
unable to agree with a network service provider about 1 or more aspects of
access to an electricity network service provided by means of, or in
connection with—
(a) a
distribution system; or
(b) a
transmission system,
owned, controlled or operated by that network service provider, the
prospective network service user, network service user or network service
provider may notify the AER, in writing, that an access dispute exists.
Note—
Access dispute is defined in section 2A.
(2) A notification
must be accompanied by the fee (if any) prescribed by the Regulations.
(3) On receiving a
notification under subsection (1), the AER must notify, in writing, of
the access dispute—
(a) the
network service provider, if a prospective network service user or network
service user (as the case requires) notified the AER of the access dispute
under subsection (1);
(b) the
prospective network service user or network service user (as the case
requires), if the network service provider notified the AER of the access
dispute under subsection (1).
126—Withdrawal of notification
(1) The person who
notified the AER of an access dispute under section 125(1) may withdraw
that notification at any time before the AER makes an access determination in
respect of that access dispute.
(2) The notification
must be withdrawn by notice in writing.
(3) If the
notification is withdrawn, it is taken for the purposes of this Part never to
have been given.
127—Parties to an access dispute
The parties to an access dispute are—
(a) the
person notifying the AER of an access dispute under section 125(1); and
(b) a
person notified by the AER under section 125(3); and
(c) if
the AER is of the opinion that the resolution of the access dispute may
involve requiring another person to do something—that other person; and
(d) any
other person who applies in writing to be made a party and is accepted by the
AER as having a sufficient interest.
Division 3—Access determinations
128—Determination of access dispute
(1) Unless the AER
terminates an access dispute under section 131, the AER must, subject to
this Part and the Rules, make a determination on access by (as the case
requires) the prospective network service user or network service user.
Note—
A delegate of the AER may make the access determination. See section 17
of this Law and section 44AAH of the Trade Practices Act 1974 of the
Commonwealth.
(2) In making an
access determination the AER must comply with this Part and the Rules.
(3) An access
determination must—
(a) be
in writing; and
(b)
include a statement of reasons for making the determination; and
(c) be
given to the parties without delay.
(4) An access
determination has effect on and from the date specified in the determination.
129—AER may require parties to mediate, conciliate or engage in an
alternative dispute resolution process
(1) The AER may
require the parties, in accordance with the Rules, to mediate, conciliate or
engage in another alternative dispute resolution process for the purpose of
resolving the access dispute.
(2) A party must
comply with a requirement under subsection (1).
130—Access determination must give effect to network revenue or pricing
determination
The AER must, in making an access determination, give effect to a network
revenue or pricing determination—
(a)
applying to the electricity network services provided, or to be provided, that
are the subject of the access dispute; and
(b) in
effect at the time the determination is made,
(even though that determination may not have been in force when notification
of the access dispute was given).
131—AER may terminate access dispute in certain cases
(1) The AER may at any
time terminate an access dispute (without making an access determination) if
the AER considers that—
(a) the
notification of the access dispute was vexatious; or
(b) the
subject matter of the dispute is trivial, misconceived or lacking in
substance; or
(c) the
party who notified the access dispute had, but did not avail itself of, an
opportunity to engage in negotiations in good faith with the other party
before that notification; or
(d) a
specified dispute termination circumstance has occurred.
(2) Subject to
section 133, the AER may also terminate an access dispute (without making
an access determination) if the AER considers that the aspect of access about
which there is a dispute is expressly or impliedly dealt with under an
agreement between, as the case requires—
(a) the
prospective network service user and network service provider;
(b) the
network service user and network service provider.
(3) In this
section—
specified dispute termination circumstance means a circumstance specified by
the Rules as being a circumstance, the occurrence of which, entitles the AER
to terminate an access dispute (without making an access determination).
132—AER must terminate access dispute if there is genuine competition
Despite anything to the contrary in this Part, the AER must terminate an
access dispute (without making an access determination) if the AER considers
that the electricity network service the subject of the dispute could be
provided on a genuinely competitive basis by a person other than the network
service provider or an associate of the provider.
133—Restrictions on access determinations
(1) The AER must not
make an access determination that—
(a)
would have the effect of preventing a network service user obtaining a
sufficient amount of an electricity network service to be able to meet the
network service user's reasonably anticipated requirements, measured at the
time the access dispute was notified; or
(b)
subject to subsection (2), is inconsistent with a connection agreement
between the parties to the access dispute.
(2) The AER may make
an access determination that is inconsistent with a connection agreement
between the parties to the access dispute if the AER is of the opinion the
connection agreement affects the quality and security of electricity network
service being provided to another person.
(3) In this
section—
connection agreement means an agreement between a network service provider
and—
(a) an
owner, controller or operator of a generating system about the connection of
that system to a transmission system or distribution system owned, controlled
or operated by the network service provider; or
(b) a
person who purchases electricity supplied through a transmission system or
distribution system owned, controlled or operated by the network service
provider about the connection of that person's loads to that transmission
system or distribution system; or
(c)
another network service provider about the connection of transmission systems
or distribution systems (as the case requires) owned, controlled or operated
by the providers.
134—Access determination need not require the provision of an
electricity network service
An access determination may, but need not, require a network service provider
to provide an electricity network service to a prospective network service
user.
Division 4—Variation of access determinations
135—Variation of access determinations
(1) The AER may vary
an access determination on the application of any party to the determination.
However, it cannot vary the final determination if any other party objects.
Note—
If the parties cannot agree on a variation, a new access dispute can be
notified under section 125.
(2) Section 133
applies to a variation under this section as if—
(a) an
access dispute arising out of the access determination had been notified when
the application was made to the AER for the variation of the determination;
and
(b) the
variation were the making of an access determination in the terms of the
varied determination.
Division 5—Compliance with access determinations
136—Compliance with access determination
A party to an access dispute in respect of which an access determination is
made must comply with the access determination.
Division 6—Access dispute hearing procedure
(1) Subject to
subsection (2), a dispute hearing is to be in private.
(2) If the parties
agree, a dispute hearing or part of a dispute hearing may be conducted in
public.
(3) The AER may give
written directions as to the persons who may be present at a dispute hearing
that is conducted in private.
(4) In giving
directions under subsection (3), the AER must have regard to the wishes
of the parties and the need for commercial confidentiality.
In a dispute hearing a party may appear in person or be represented by another
person.
(1) In a dispute
hearing the AER—
(a) is
not bound by technicalities, legal forms or rules of evidence; and
(b) must
act as speedily as a proper consideration of the access dispute allows, having
regard to the need carefully and quickly to inquire into and investigate the
access dispute and all matters affecting the merits, and fair settlement, of
the access dispute; and
(c) may
inform itself about any matter relevant to the access dispute in any way it
thinks appropriate.
(2) The AER may
determine the periods that are reasonably necessary for the fair and adequate
presentation of the respective cases of the parties in the dispute hearing,
and may require that the cases be presented within those periods.
(3) The AER may
require evidence or argument to be presented in writing, and may decide the
matters on which the AER will hear oral evidence or argument.
(4) The AER may
determine that a dispute hearing is to be conducted by—
(a)
telephone; or
(b)
closed circuit television; or
(c) any
other means of communication.
(5) The Rules may make
further provision about the procedure for the conduct of dispute hearings.
140—Particular powers of AER in a hearing
(1) The AER may do any
of the following things for the purpose of determining an access dispute:
(a) give
a direction in the course of, or for the purpose of, a dispute hearing;
(b) hear
and determine the access dispute in the absence of a party who has been given
notice of the dispute hearing;
(c) sit
at any place;
(d)
adjourn to any time and place;
(e)
refer any matter to an independent expert and accept the expert's report as
evidence.
(2) The AER may make
an interim determination.
(1) The AER may give
an oral or written order to a person not to divulge or communicate to anyone
else specified information that was given to the person in the course of an
access dispute unless the person has the AER's permission.
(2) A person must not,
without reasonable excuse, refuse or fail to comply with an order under
subsection (1).
Maximum penalty:
(a) in
the case of a natural person—$2 000;
(b) in
the case of a body corporate—$10 000.
142—Power to take evidence on oath or affirmation
(1) The AER may take
evidence on oath or affirmation and for that purpose the AER may administer an
oath or affirmation.
(2) The AER may summon
a person to appear before the AER to—
(a) give
evidence; or
(b)
produce such documents (if any) as are referred to in the summons; or
(c) give
evidence and produce such documents (if any) as are referred to in the
summons.
(3) The powers in this
section may be exercised only for the purposes of hearing and determining an
access dispute.
143—Failing to attend as a witness
A person who is served, as prescribed by the Regulations, with a summons to
appear as a witness before the AER must not, without reasonable excuse—
(a) fail
to attend as required by the summons; or
(b) fail
to appear and report himself or herself from day to day unless excused, or
released from further attendance, by the AER.
Maximum penalty: $2 000.
144—Failing to answer questions etc
(1) A person appearing
as a witness before the AER must not, without reasonable excuse—
(a)
refuse or fail to be sworn or to make an affirmation; or
(b)
refuse or fail to answer a question that the person is required to answer by
the AER; or
(c)
refuse or fail to produce a document that he or she is required to produce by
a summons under this Part served on him or her as prescribed by the
Regulations.
Maximum penalty: $2 000.
(2) It is a reasonable
excuse for the purposes of subsection (1) for a natural person to refuse
or fail to answer a question or produce a document on the ground that the
answer or the production of the document might—
(a) tend
to incriminate the person; or
(b)
expose the person to a criminal penalty.
(3)
Subsection (2) does not limit what is a reasonable excuse for the
purposes of subsection (1).
A person must not—
(a)
threaten, intimidate or coerce another person; or
(b)
cause or procure damage, loss or disadvantage to another person,
because that other person—
(c)
proposes to produce, or has produced, documents to the AER; or
(d)
proposes to appear, or has appeared, as a witness before the AER.
Maximum penalty: $2 000.
146—Party may request AER to treat material as confidential
(1) A party in a
dispute hearing may—
(a)
inform the AER that, in the party's opinion, a specified part of a document
contains confidential information; and
(b)
request the AER not to give a copy of that part to another party.
(2) On receiving a
request, the AER must—
(a)
inform the other party or parties that the request has been made and of the
general nature of the matters to which the relevant part of the document
relates; and
(b) ask
the other party or parties whether there is any objection to the AER complying
with the request.
(3) If there is an
objection to the AER complying with the request, the party objecting may
inform the AER of the objection and of the reasons for it.
(4) After
considering—
(a) a
request; and
(b) any
objection; and
(c) any
further submissions that any party has made in relation to the request,
the AER may decide—
(d) not
to give the other party or parties a copy of so much of the document as
contains confidential information that the AER thinks should not be given; or
(e) to
give the other party or another specified party a copy of the whole, or part,
of the part of the document that contains confidential information subject to
a condition that the party give an undertaking not to disclose the information
to another person except to the extent specified by the AER and subject to
such other conditions as the AER determines.
(1) Each party is to
bear its own costs in a dispute hearing except to the extent that an order
under this section specifies otherwise.
(2) At any time, the
AER may order that a party pay all or a specified part of the costs of another
party in a dispute hearing.
(3) The AER may make
an order under subsection (2) only if satisfied that it is fair to do so,
having regard to—
(a)
whether a party has conducted itself in the dispute hearing in a way that
unnecessarily disadvantaged another party by conduct such as—
(i)
failing to comply with an order or direction of the AER
without reasonable excuse;
(ii)
failing to comply with this Law, the Regulations or the
Rules;
(iii)
asking for an adjournment as a result of
subparagraph (i) or (ii);
(iv)
causing an adjournment;
(v)
attempting to deceive another party or the AER;
(vi)
vexatiously conducting an access dispute;
(b)
whether a party has been responsible for prolonging unreasonably the time
taken to complete the dispute hearing;
(c) the
relative strengths of the claims made by each of the parties, including
whether a party has made a claim that has no tenable basis in fact or law;
(d) the
nature and complexity of the access dispute;
(e) any
other matter the AER considers relevant.
(4) A party to whom an
order made under subsection (2) is directed must comply with the order.
(5) If the AER
considers that the representative of a party, rather than the party, is
responsible for conduct described in subsection (3)(a) or (b), the AER
may order that the representative in his or her own capacity compensate
another party for any costs incurred unnecessarily.
(6) Before making an
order under subsection (5), the AER must give the representative a
reasonable opportunity to be heard.
(7) A representative
of a party to whom an order made under subsection (5) is directed must
comply with the order.
(8) If the AER makes
an order for costs before the end of an access dispute, the AER may require
that the order be complied with before it continues with the proceeding.
(9) If the AER makes
an order for costs, the AER may fix the amount of costs itself.
(10) This section
applies to costs incurred by the parties in a dispute hearing even if the
notification of the access dispute to which the dispute hearing relates is
withdrawn.
148—Outstanding costs are a debt due to party awarded the costs
Costs that are payable under an order under section 147(4) or (7)—
(a) are
a debt due to the party to whom the AER has ordered that they be paid; and
(b) may
be recovered by that party in a court of competent jurisdiction.
Division 7—Joint access dispute hearings
In this Division—
nominated dispute has the meaning given by section 150(2).
(1) This section
applies if—
(a) the
AER is conducting 2 or more dispute hearings at a particular time; and
(b) 1 or
more matters are common to the access disputes in relation to which the
dispute hearings are being conducted.
(2) The AER may, by
notice in writing, decide that it will hold a joint dispute hearing in respect
of such of those access disputes (the nominated disputes ) as are specified in
the notice.
(3) The AER may do so
only if it considers this would be likely to result in the nominated disputes
being resolved in a more efficient and timely manner.
(1) Before making a
decision under section 150(2), the AER must give each party to each
nominated dispute a notice in writing—
(a)
specifying what the AER is proposing to do; and
(b)
inviting the party to make a written submission on the proposal to the AER
within 10 business days after the notice is given.
(2) The AER must have
regard to any submission so made in deciding whether to do so. The AER may
have regard to any other matter it considers relevant.
152—Constitution and procedure of AER for joint dispute hearings
Division 6 applies to the joint dispute hearing in a corresponding way to the
way in which it applies to a particular dispute hearing.
(1) The AER as
constituted for the purposes of the joint dispute hearing may have regard to
any record of the proceedings of the dispute of any nominated dispute.
(2) The AER as
constituted for the purposes of the dispute hearing of each nominated dispute
may, for the purposes of making an access determination in relation to the
access dispute to which that hearing relates—
(a) have
regard to any record of the proceedings of the joint dispute hearing; and
(b)
adopt any findings of fact made by the AER as constituted for the purposes of
the joint dispute hearing.
Division 8—Miscellaneous matters
154—Correction of access determinations for clerical mistakes etc
If an access determination contains—
(a) a
clerical mistake; or
(b) an
error arising from an accidental slip or omission; or
(c) a
material miscalculation of figures or a material mistake in the description of
any person, thing or matter referred to in the determination; or
(d) a
defect in form,
the AER may correct the access determination.
155—Subsequent network service provider bound by access determinations
(1) An access
determination applies to every subsequent network service provider as if that
subsequent network service provider were a party to the access dispute in
respect of which the access determination was made.
(2) In this
section—
subsequent network service provider means a network service provider (other
than the network service provider to whom the access determination applies)
who provides electricity network services by means of, or in connection with,
the distribution system or transmission system used to provide the electricity
network services—
(a) the
subject of the access dispute; and
(b) in
respect of which the access determination was made.
156—Regulations about the charges to be paid by parties to access
dispute for AER's costs in dispute hearing
The Regulations may provide for the AER to—
(a)
charge the parties to an access dispute for its costs in the access dispute;
and
(b)
apportion those costs between the parties.
Part 11—General
157—Preventing or hindering access
(1) A person who
is—
(a) a
regulated network service provider; or
(b) a
person who—
(i)
is a party to an agreement with a regulated network
service provider relating to a regulated network service; or
(ii)
as a result of an access determination is entitled to a
regulated network service; or
(c) an
associate of a regulated network service provider or a person referred to in
paragraph (b),
must not engage in conduct for the purpose of preventing or hindering the
access of another person to a regulated network service.
(2) For the purposes
of subsection (1), a person is deemed to engage in conduct for a
particular purpose if—
(a) the
conduct is or was engaged in for that purpose or for a purpose that includes,
or included, that purpose; and
(b) that
purpose is or was a substantial purpose.
(3) A person may be
taken to have engaged in conduct for the purpose referred to in
subsection (1) even though, after all the evidence has been considered,
the existence of that purpose is ascertainable only by inference from the
conduct of the person or of any other person or from other relevant
circumstances.
(4)
Subsection (3) does not limit the manner in which the purpose of a person
may be established for the purpose of subsection (1).
(5) In this
section—
(a) a
reference to engaging in conduct is a reference to doing or refusing to do any
act, including refusing to supply a regulated network service or, without
reasonable grounds, limiting or disrupting a regulated network service, or
making, or giving effect to, a provision of, a contract or arrangement,
arriving at, or giving effect to, a provision of, an understanding or
requiring the giving of, or giving, a covenant;
(b) a
reference to refusing to do an act includes a reference to—
(i)
refraining (otherwise than inadvertently) from doing that
act; or
(ii)
making it known that that act will not be done.
(6) In this
section—
regulated network service means a direct control network service or a
negotiated network service.
(7)
Subsection (1) does not apply to conduct engaged in in accordance with an
agreement, if the agreement was in force on 30 March 1995.
Example—
An example of conduct which may be prohibited if the requisite purpose is
established is refusing to supply, or limiting or disrupting the supply of, a
regulated network service to a network service user or prospective network
service user for technical or safety reasons without reasonable grounds.
158—Failure to make a decision under this Law or the Rules within time
does not invalidate the decision
(1) A decision
(however described) made under this Law or the Rules by the AER, AEMC or AEMO
after the expiry of the period of time specified by this Law or the Rules for
the making of that decision is not to be taken to be an invalid decision only
because the decision is not made within the specified period of time.
(2) A decision to
which subsection (1) applies takes effect on and from—
(a) the
day it is made; or
(b) if
it specifies a date for operation or effect that is after the day it is made,
that specified date.
Schedule 1—Subject matter for the National Electricity Rules
(section 34)
Registration
1 The registration of persons as Registered
participants or otherwise for the purposes of this Law and the Rules,
including the deregistration of such persons or suspension of such
registrations.
2 The exemption of persons from the requirement to
be Registered participants.
3 Prudential requirements to be met by a
person—
(a)
before being registered as a Registered participant; and
(b) as a
Registered participant.
4 The suspension of Registered participants from
participation in the wholesale exchange operated and administered by AEMO.
Participant fees
5 The determination of fees in respect of services
provided to Registered participants, or statutory functions performed, by AEMO
under the Rules, including the methodology to be applied to determine those
fees.
6 The imposition on Registered participants of
fees referred to in item 5 and the method of payment and collection of those
fees.
Wholesale exchange
7 The setting of prices for electricity and
services purchased through the wholesale exchange operated and administered by
AEMO, including maximum and minimum prices.
8 The methodology and formulae to be applied in
setting prices referred to in item 7.
9 The division of the national electricity market
into regions for the purpose of the operation of the wholesale exchange
operated and administered by AEMO.
Operation of generation, transmission and distribution systems
10 The disconnection of generating systems,
transmission systems, distribution systems or other facilities or loads.
11 The operation of generating systems,
transmission systems, distribution systems or other facilities.
12 The augmentation of transmission systems and
distribution systems.
13 Access to electricity services provided by
means of transmission systems and distribution systems.
14 Access to premises on which there are, and
access to, generating systems or other facilities by owners, controllers or
operators of transmission systems or distribution systems whose systems are
connected to the generating systems or other facilities to test and inspect
the generating systems or other facilities for the purpose of determining
whether those generating systems or other facilities comply with the Rules.
14A The treatment of parts of a transmission
system as forming part of a distribution system for the purposes of making a
network revenue or pricing determination.
14B The treatment of parts of a distribution
system as forming part of a transmission system for the purposes of making a
network revenue or pricing determination.
Transmission system revenue and pricing
15 The regulation of revenues earned or that may
be earned by owners, controllers or operators of transmission systems from the
provision by them of services that are the subject of a transmission
determination.
16 (1) The regulation
of prices charged or that may be charged by owners, controllers or operators
of transmission systems for the provision by them of services that are the
subject of a transmission determination.
(2) The regulation of
prices that AEMO charges or may charge for the provision of shared
transmission services.
17 Principles to be applied, and procedures to be
followed, by the AER in exercising or performing an AER economic regulatory
function or power relating to the making of a transmission determination.
18 The assessment, or treatment, by the AER, of
investment in transmission systems for the purposes of making a transmission
determination.
19 The economic framework, mechanisms or
methodologies to be applied by the AER for the purposes of item 18.
20 The economic framework, mechanisms or
methodologies to be applied or determined by the AER for the purposes of
items 15 and 16 including (without limitation) the economic framework,
mechanisms or methodologies to be applied or determined by the AER for the
derivation of the revenue (whether maximum allowable revenue or otherwise) or
prices to be applied by the AER in making a transmission determination.
21 The regulatory asset base, for the purposes of
making a transmission determination, of assets forming part of a transmission
system owned, controlled or operated by a regulated transmission system
operator, and of proposed new assets to form part of a transmission system
owned, controlled or operated by a regulated transmission system operator,
that are, or are to be, used in the provision of services that are the subject
of a transmission determination.
22 The determination by the AER, for the purpose
of making a transmission determination with respect to services that are the
subject of such a determination, of allowances for—
(a)
depreciation; and
(b)
operating costs of a regulated transmission system operator; and
(c) if
the regulated transmission system operator is a corporation or other body
corporate—
(i)
the income tax payable by corporations; or
(ii)
amounts payable under a law of this jurisdiction or
otherwise that are equivalent to income tax that would be payable by the
operator if that operator were liable to pay income tax; and
(d) a
rate of return on assets forming part of a transmission system owned,
controlled or operated by a regulated transmission system operator.
23 Incentives for regulated transmission system
operators to make efficient operating and investment decisions including,
where applicable, service performance incentive schemes.
24 The procedure for the making of a transmission
determination by the AER, including—
(a) the
submission by the relevant service provider of a proposal to the AER relating
to the revenue or prices to be regulated by the proposed transmission
determination; or
(b) the
publication of notices by the AER; and
(c) the
making of submissions by the relevant service provider or any other person;
and
(d) the
holding of pre-determination conferences; and
(e) the
publication of draft and final determinations and the giving of reasons.
In this clause, a reference to the relevant service provider is a reference
to the regulated transmission system operator to which the determination will
apply or, if it will apply to AEMO (as provider of shared transmission
services), to AEMO.
Distribution system revenue and pricing
25 The regulation of revenues earned or that may
be earned by owners, controllers or operators of distribution systems from the
provision by them of services that are the subject of a distribution
determination.
26 The regulation of prices (including the tariffs
and classes of tariffs) charged or that may be charged by owners, controllers
or operators of distribution systems for the provision by them of services
that are the subject of a distribution determination.
26A Principles to be applied, and procedures to be
followed, by the AER in exercising or performing an AER economic regulatory
function or power relating to the making of a distribution determination.
26B The assessment, or treatment, by the AER, of
investment in distribution systems for the purposes of making a distribution
determination.
26C The economic framework, mechanisms or
methodologies to be applied by the AER for the purposes of item 26B.
26D The economic framework, mechanisms or
methodologies to be applied or determined by the AER for the purposes of items
25 and 26 including (without limitation) the economic framework, mechanisms or
methodologies to be applied or determined by the AER for the derivation of the
revenue (whether maximum allowable revenue or otherwise) or prices to be
applied by the AER in making a distribution determination.
26E The regulatory asset base, for the purposes of
making a distribution determination, of assets forming part of a distribution
system owned, controlled or operated by a regulated distribution system
operator, and of proposed new assets to form part of a distribution system
owned, controlled or operated by a regulated distribution system operator,
that are, or are to be, used in the provision of services that are the subject
of a distribution determination.
26F The determination by the AER, for the purpose
of making a distribution determination with respect to services that are the
subject of such a determination, of allowances for—
(a)
depreciation; and
(b)
operating costs of a regulated distribution system operator; and
(c) if
the regulated distribution system operator is a corporation or other body
corporate—
(i)
the income tax payable by corporations; or
(ii)
amounts payable under a law of this jurisdiction or
otherwise that are equivalent to income tax that would be payable by the
operator if that operator were liable to pay income tax; and
(d) a
rate of return on assets forming part of a distribution system owned,
controlled or operated by a regulated distribution system operator.
26G Incentives for regulated distribution system
operators to make efficient operating and investment decisions including,
where applicable, service performance incentive schemes.
26H The procedure for the making of a distribution
determination by the AER, including—
(a) the
submission to the AER, by a regulated distribution system operator, of a
proposal relating to the revenues or prices to be regulated by a distribution
determination applying to the operator; and
(b) the
publication of notices by the AER; and
(c) the
making of submissions, including by the regulated distribution system operator
to whom the distribution determination will apply; and
(d) the
publication of draft and final determinations and the giving of reasons; and
(e) the
holding of pre-determination conferences.
Regulatory economic methodologies
26I The regulatory economic methodologies
(including the use of the methodology known as the "building block approach")
to be applied by the AER in—
(a)
making a distribution determination or transmission determination; or
(b)
amending a distribution determination or transmission determination; or
(c)
making an access determination.
26J The methodology known as "total factor
productivity"—
(a) as a
regulatory economic methodology to be applied by the AER for the purpose
of—
(i)
making a distribution determination or transmission
determination; or
(ii)
amending a distribution determination or transmission
determination; or
(iii)
making an access determination;
(b) as
an economic regulatory tool to inform and assist the AER in applying, or
analysing the application of the regulatory economic methodology known as the
"building block approach" by the AER for the purpose of—
(i)
making a distribution determination or transmission
determination; or
(ii)
amending a distribution determination or transmission
determination; or
(iii)
making an access determination.
Electricity network services
26K Terms and conditions for the provision of
electricity network services, or any class of electricity network services
(including shared transmission services).
Metering
27 The metering of electricity to record the
production or consumption of electricity.
28 The registration of metering installations used
to meter electricity.
29 The regulation of persons providing metering
services relating to the metering of electricity.
Disputes in relation to the Rules
30 Disputes under or in relation to the Rules
between persons, including—
(a) the
appointment of persons to arbitrate, mediate or assist in some other way in
the resolution of such disputes;
(b) the
appointment of a person to manage and facilitate the dispute resolution
process (without however derogating from that person’s power to act
personally as an arbitrator or mediator in a particular dispute);
(c) the
procedure for the conduct of such disputes;
(d) the
provision for appeals on questions of law against decisions of persons
appointed to resolve such disputes.
Access disputes
30A Specification of disputes as access disputes
for the purposes of Part 10.
30B Notification of access disputes for the
purposes of Part 10.
30C Matters or things to be considered or applied
by the AER in making an access determination.
30D Procedure for the hearing of an access dispute
under Part 10.
AEMO
30E The declared network functions.
30F The application (with or without modification)
of Rules, applicable to network service providers, to regulated transmission
system operators, or to AEMO in its capacity as a provider of transmission
services.
National transmission planning
30G The preparation, revision and publication of
the National Transmission Network Development Plan.
30H The attainment of a national strategic
perspective for transmission planning and coordination.
30I The establishment and maintenance of a
database of information relevant to planning the development of the national
grid and the provision of public access to the database.
30J The collection of information required for the
preparation or revision of the National Transmission Network Development Plan.
Miscellaneous
31 The calculation or estimation of use of
electricity.
32 Procedures and related systems for the
electronic exchange or transfer of information that relates to consumers of
electricity, the provision of metering services and connection to the national
electricity system, and requiring compliance with such procedures and use of
such related systems.
33 Reviews by or on behalf of—
(a) the
AER, the AEMC or AEMO; or
(b) the
Reliability Panel or any other panel or committee established by the AEMC; or
(c) any
other body established, or person appointed, in accordance with the Rules.
34 The payment of money (including the payment of
interest)—
(a) for
the settlement of transactions for electricity or services purchased or
supplied through the wholesale exchange operated and administered by AEMO;
(b) to
and from a Rule fund (within the meaning of section 53);
(c) for
any service provided under the Rules in respect of which the Rules require
payment.
34A Specification and classification of
electricity network services as direct control network services or negotiated
network services.
34B Reporting and disclosing information to the
AER.
(a) on
the making of a general regulatory information order;
(b)
before the preparation of a network service provider performance report.
35 Confidential information held by Registered
participants, the AER, the AEMC, AEMO and other persons or bodies conferred a
function, or exercising a power or right, or on whom an obligation is imposed,
under the Rules, and the manner and circumstances in which that information
may be disclosed.
36 Any other matter or thing that is the subject
of, or is of a kind dealt with by, a provision of the National Electricity
Code as in operation and effect immediately before the commencement of section
12 of the National Electricity (South Australia) (New National Electricity
Law) Amendment Act 2005 of South Australia.
36A Any other matter or thing that is the subject
of, or is of a kind dealt with by, a provision of the superseded
jurisdictional rules.
37 Any matter or thing relating to electricity
prescribed by the Regulations.
Schedule 2—Miscellaneous provisions relating to interpretation
(section 3)
Part 1—Preliminary
1—Displacement of Schedule by contrary intention
(1) The application of
this Schedule to this Law, the Regulations or other statutory instrument
(other than the National Electricity Rules) may be displaced, wholly or
partly, by a contrary intention appearing in this Law or the Regulations or
that statutory instrument.
(2) The application of
this Schedule to the National Electricity Rules (other than clauses 7,
12, 15, 17, 19, 23 to 26 and 31 to 34, 39, 42 and 43 of this Schedule) may be
displaced, wholly or partly, by a contrary intention appearing in the National
Electricity Rules.
Part 2—General
2—Law to be construed not to exceed legislative power of Legislature
(1) This Law is to be
construed as operating to the full extent of, but so as not to exceed, the
legislative power of the Legislature of this jurisdiction.
(2) If a provision of
this Law, or the application of a provision of this Law to a person, subject
matter or circumstance, would, but for this clause, be construed as being in
excess of the legislative power of the Legislature of this jurisdiction—
(a) it
is a valid provision to the extent to which it is not in excess of the power;
and
(b) the
remainder of this Law, and the application of the provision to other persons,
subject matters or circumstances, is not affected.
(3) Without limiting
subclause (2), this Law is not to be construed as imposing any duty on
the Tribunal or AER to perform a function or exercise a power if the
imposition of the duty would be in excess of the legislative power of the
Legislature of this jurisdiction.
Note—
The term "function" is defined in clause 10 to include "duty".
(4) In particular, if
a provision of this Law appears to impose a duty on the Tribunal or AER to
perform a function or exercise a power in matters or circumstances in which
the assumption of the duty cannot be validly authorised under the law of the
Commonwealth, or is otherwise ineffective, the provision is to be construed as
if its operation were expressly confined to—
(a) acts
or omissions of corporations to which section 51(xx) of the Constitution of
the Commonwealth applies; or
(b) acts
or omissions taking place in the course of, or in relation to, trade or
commerce between this jurisdiction and places outside this jurisdiction
(whether within or outside Australia); or
(c) acts
or omissions taking place outside Australia, or in relation to things outside
Australia.
(5) This clause does
not limit the effect that a provision of this Law would validly have apart
from this clause.
2A—Changes of drafting practice not to affect meaning
Differences of language between provisions of this Law or the Rules may be
explicable by reference to changes of legislative drafting practice and do not
necessarily imply a difference of meaning.
3—Every section to be substantive enactment
Every section of this Law has effect as a substantive enactment without
introductory words.
4—Material that is, and is not, part of Law
(1) The heading to a
Chapter, Part, Division or Subdivision into which this Law is divided is part
of this Law.
(2) A Schedule to
this Law is part of this Law.
(3) A heading to a
section or subsection of this Law does not form part of this Law.
(4) A note at the foot
of a provision of this Law does not form part of this Law.
(5) An example (being
an example at the foot of a provision of this Law under the heading "Example"
or "Examples") does not form part of this Law.
5—References to particular Acts and to enactments
In this Law—
(a) an
Act of this jurisdiction may be cited—
(i)
by its short title; or
(ii)
in another way sufficient in an Act of this jurisdiction
for the citation of such an Act; and
(b) a
Commonwealth Act may be cited—
(i)
by its short title; or
(ii)
in another way sufficient in a Commonwealth Act for the
citation of such an Act,
together with a reference to the Commonwealth; and
(c) an
Act of another jurisdiction may be cited—
(i)
by its short title; or
(ii)
in another way sufficient in an Act of the jurisdiction
for the citation of such an Act,
together with a reference to the jurisdiction.
6—References taken to be included in Act or Law citation etc
(1) A reference in
this Law to an Act includes a reference to—
(a) the
Act as originally enacted, and as amended from time to time since its original
enactment; and
(b) if
the Act has been repealed and re enacted (with or without modification) since
the enactment of the reference, the Act as re enacted, and as amended from
time to time since its re enactment.
(2) A reference in
this Law to a provision of this Law or of an Act includes a reference
to—
(a) the
provision as originally enacted, and as amended from time to time since its
original enactment; and
(b) if
the provision has been omitted and re enacted (with or without modification)
since the enactment of the reference, the provision as re enacted, and as
amended from time to time since its re enactment.
(3) Subclause (1)
and (2) apply to a reference in this Law to a law of the Commonwealth or
another jurisdiction as they apply to a reference in this Law to an Act and to
a provision of an Act.
7—Interpretation best achieving Law's purpose
(1) In the
interpretation of a provision of this Law, the interpretation that will best
achieve the purpose or object of this Law is to be preferred to any other
interpretation.
(2) Subclause (1)
applies whether or not the purpose is expressly stated in this Law.
8—Use of extrinsic material in interpretation
(1) In this
clause—
Law extrinsic material means relevant material not forming part of this Law,
including, for example—
(a)
material that is set out in the document containing the text of this Law as
printed by authority of the Government Printer of South Australia; and
(b) a
relevant report of a committee of the Legislative Council or House of Assembly
of South Australia that was made to the Legislative Council or House of
Assembly of South Australia before the provision was enacted; and
(c) an
explanatory note or memorandum relating to the Bill that contained the
provision, or any relevant document, that was laid before, or given to the
members of, the Legislative Council or House of Assembly of South Australia by
the member bringing in the Bill before the provision was enacted; and
(d) the
speech made to the Legislative Council or House of Assembly of South Australia
by the member in moving a motion that the Bill be read a second time; and
(e)
material in the Votes and Proceedings of the Legislative Council or House of
Assembly of South Australia or in any official record of debates in the
Legislative Council or House of Assembly of South Australia; and
(f) a
document that is declared by the Regulations to be a relevant document for the
purposes of this clause;
ordinary meaning means the ordinary meaning conveyed by a provision having
regard to its context in this Law and to the purpose of this Law;
Rule extrinsic material means—
(a) a
draft Rule determination; or
(b) a
final Rule determination; or
(c) any
document (however described)—
(i)
relied on by the AEMC in making a draft Rule
determination or final Rule determination; or
(ii)
adopted by the AEMC in making a draft Rule determination
or final Rule determination.
(2) Subject to
subclause (3), in the interpretation of a provision of this Law,
consideration may be given to Law extrinsic material capable of assisting in
the interpretation—
(a) if
the provision is ambiguous or obscure, to provide an interpretation of it; or
(b) if
the ordinary meaning of the provision leads to a result that is manifestly
absurd or is unreasonable, to provide an interpretation that avoids such a
result; or
(c) in
any other case, to confirm the interpretation conveyed by the ordinary meaning
of the provision.
(2a) Subject to
subclause (3), in the interpretation of a provision of the Rules,
consideration may be given to Law extrinsic material or Rules extrinsic
material capable of assisting in the interpretation—
(a) if
the provision is ambiguous or obscure, to provide an interpretation of it; or
(b) if
the ordinary meaning of the provision leads to a result that is manifestly
absurd or is unreasonable, to provide an interpretation that avoids such a
result; or
(c) in
any other case, to confirm the interpretation conveyed by the ordinary meaning
of the provision.
(3) In determining
whether consideration should be given to Law extrinsic material or Rule
extrinsic material, and in determining the weight to be given to Law extrinsic
material or Rule extrinsic material, regard is to be had to—
(a) the
desirability of a provision being interpreted as having its ordinary meaning;
and
(b) the
undesirability of prolonging proceedings without compensating advantage; and
(c)
other relevant matters.
9—Compliance with forms
(1) If a form is
prescribed or approved by or for the purpose of this Law, strict compliance
with the form is not necessary and substantial compliance is sufficient.
(2) If a form
prescribed or approved by or for the purpose of this Law requires—
(a) the
form to be completed in a specified way; or
(b)
specified information or documents to be included in, attached to or given
with the form; or
(c) the
form, or information or documents included in, attached to or given with the
form, to be verified in a specified way,
the form is not properly completed unless the requirement is complied with.
Part 3—Terms and references
10—Definitions
In this Law—
Act means an Act of the Legislature of this jurisdiction;
affidavit , in relation to a person allowed by law to affirm, declare or
promise, includes affirmation, declaration and promise;
amend includes—
(a) omit
or omit and substitute; or
(b)
alter or vary; or
(c)
amend by implication;
appoint includes re appoint;
breach includes fail to comply with;
business day means a day that is not—
(a) a
Saturday or Sunday;
(b)
observed as a public holiday on the same day in each of the participating
jurisdictions (except the Commonwealth);
calendar month means a period starting at the beginning of any day of one of
the 12 named months and ending—
(a)
immediately before the beginning of the corresponding day of the next named
month; or
(b) if
there is no such corresponding day, at the end of the next named month;
calendar year means a period of 12 months beginning on 1 January;
commencement , in relation to this Law or an Act or a provision of this Law or
an Act, means the time at which this Law, the Act or provision comes into
operation;
confer , in relation to a function, includes impose;
contravene includes fail to comply with;
definition means a provision of this Law (however expressed) that—
(a)
gives a meaning to a word or expression; or
(b)
limits or extends the meaning of a word or expression;
document includes—
(a) any
paper or other material on which there is writing; or
(b) any
paper or other material on which there are marks, figures, symbols or
perforations having a meaning for a person qualified to interpret them; or
(c) any
disc, tape or other article or any material from which sounds, images,
writings or messages are capable of being reproduced (with or without the aid
of another article or device);
estate includes easement, charge, right, title, claim, demand, lien or
encumbrance, whether at law or in equity;
expire includes lapse or otherwise cease to have effect;
fail includes refuse;
financial year means a period of 12 months beginning on 1 July;
function includes duty;
Gazette means the Government Gazette of this jurisdiction;
instrument includes a statutory instrument;
interest , in relation to land or other property, means—
(a) a
legal or equitable estate in the land or other property; or
(b) a
right, power or privilege over, or in relation to, the land or other property;
make includes—
(a)
issue or grant; and
(b)
revoke and substitute;
minor means an individual who is under 18;
modification includes addition, omission or substitution;
month means a calendar month;
named month means one of the 12 months of the year;
number means—
(a) a
number expressed in figures or words; or
(b) a
letter; or
(c) a
combination of a number so expressed and a letter;
oath , in relation to a person allowed by law to affirm, declare or promise,
includes affirmation, declaration or promise;
office includes position;
omit , in relation to a provision of this Law or an Act, includes repeal;
party includes a body politic or body corporate as well as an individual;
penalty includes a civil penalty, forfeiture or punishment;
person includes a body politic or body corporate as well as an individual;
power includes authority;
prescribed means prescribed by the Regulations;
printed includes typewritten, lithographed or reproduced by any mechanical
means;
proceeding means a legal or other action or proceeding;
property means any legal or equitable estate or interest (whether present or
future, vested or contingent, or tangible or intangible) in real or personal
property of any description (including money), and includes things in action;
provision , in relation to this Law or an Act, means words or other matter
that form or forms part of this Law or the Act, and includes—
(a) a
Part, Division, Subdivision, section, subsection, paragraph, subparagraph,
subsubparagraph or Schedule of or to this Law or the Act; or
(b) a
section, clause, subclause, item, column, table or form of or in a Schedule to
this Law or the Act; or
(c) the
long title and any preamble to the Act;
record includes information stored or recorded by means of a computer;
repeal includes—
(a)
revoke or rescind; or
(b)
repeal by implication; or
(c)
abrogate or limit the effect of the law or instrument concerned; or
(d)
exclude from, or include in, the application of the law or instrument
concerned, any person, subject matter or circumstance;
sign includes the affixing of a seal or the making of a mark;
statutory declaration means a declaration made under an Act, or under a
Commonwealth Act or an Act of another jurisdiction, that authorises a
declaration to be made otherwise than in the course of a judicial proceeding;
statutory instrument means the Regulations or an instrument made or in force
under this Law;
swear , in relation to a person allowed by law to affirm, declare or promise,
includes affirm, declare or promise;
word includes any symbol, figure or drawing;
writing includes any mode of representing or reproducing words in a visible
form.
11—Provisions relating to defined terms and gender and number
(1) If this Law
defines a word or expression, other parts of speech and grammatical forms of
the word or expression have corresponding meanings.
(2) Definitions in or
applicable to this Law apply except so far as the context or subject matter
otherwise indicates or requires.
(3) In this Law, words
indicating a gender include each other gender.
(4) In this Law—
(a)
words in the singular include the plural; and
(b)
words in the plural include the singular.
12—Meaning of may and must etc
(1) In this Law, the
word "may", or a similar word or expression, used in relation to a power
indicates that the power may be exercised or not exercised, at discretion.
(2) In this Law, the
word "must", or a similar word or expression, used in relation to a power
indicates that the power is required to be exercised.
(3) This clause has
effect despite any rule of construction to the contrary.
13—Words and expressions used in statutory instruments
(1) Words and
expressions used in a statutory instrument have the same meanings as they
have, from time to time, in this Law, or relevant provisions of this Law,
under or for the purposes of which the instrument is made or in force.
(2) This clause has
effect in relation to an instrument except so far as the contrary intention
appears in the instrument.
14—References to Minister
(1) In this Law—
(a) a
reference to a Minister is a reference to a Minister of the Crown of
this jurisdiction; and
(b) a
reference to a particular Minister by title, or to "the Minister" without
specifying a particular Minister by title, includes a reference to another
Minister, or a member of the Executive Council of this jurisdiction, who is
acting for and on behalf of the Minister.
(2) In a provision of
this Law, a reference to "the Minister", without specifying a particular
Minister by title is a reference to—
(a) the
Minister of this jurisdiction administering the provision; or
(b) if,
for the time being, different Ministers of this jurisdiction administer the
provision in relation to different matters—
(i)
if only one Minister of this jurisdiction administers the
provision in relation to the relevant matter, the Minister; or
(ii)
if two or more Ministers of this jurisdiction administer
the provision in relation to the relevant matter, any one of those Ministers;
or
(c) if
paragraph (b) does not apply and, for the time being, two or more
Ministers administer the provision, any one of the Ministers.
(3) For the removal of
doubt, it is declared that if—
(a) a
provision of this Law is administered by two or more Ministers of
this jurisdiction; and
(b) the
provision requires or permits anything to be done in relation to any of the
Ministers,
the provision does not require or permit it to be done in a particular case by
or in relation to more than one of the Ministers.
15—Production of records kept in computers etc
If a person who keeps a record of information by means of a mechanical, electronic or other device is required by or under