National Electricity (Queensland) Law

Editor's note—

The National Electricity (Queensland) Law is applied (with modifications) as a law of Queensland by the Electricity—National Scheme (Queensland) Act 1997. This version is the Law as it applies in Queensland—see the Electricity—National Scheme (Queensland) Act 1997, section 6.

1Citation

This Law may be referred to as the National Electricity (Queensland) Law.

2Definitions

(1)In this Law—

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

def access determination ins 2007 No. 53 (SA) s 5(1)

Australian Energy Regulator ...

def Australian Energy Regulator om 2007 No. 53 (SA) s 5(3)

Australian Energy Market Commission ...

def Australian Energy Market Commission om 2007 No. 53 (SA) s 5(3)

access dispute has the meaning given by section 2A;

def access dispute ins 2007 No. 53 (SA) s 5(1)

additional advisory functions—AEMO’s additional advisory functions are as set out in section 50B(1);

def additional advisory functions ins 2009 No. 31 (SA) s 7(2)

additional Minister initiated Rules means Rules made under section 90A, 90B, 90C or 90D 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;

def additional Minister initiated Rules ins 2007 No. 53 (SA) s 5(1)

amd 2009 No. 31 (SA) s 7(3); 2009 No. 54 (SA) s 4(1); 2011 No. 7 (SA) s 5(1)

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;

def adoptive jurisdiction ins 2009 No. 31 (SA) s 7(2)

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

def AEMC ins 2007 No. 53 (SA) s 5(1)

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;

def AEMO amendments ins 2009 No. 31 (SA) s 7(2)

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

def AER ins 2007 No. 53 (SA) s 5(2)

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;

def AER economic regulatory decision ins 2007 No. 53 (SA) s 5(2)

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

(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;

def AER economic regulatory function or power sub 2007 No. 53 (SA) s 5(2)

sub 2009 No. 31 (SA) s 7(1)–(2)

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;

def application Act ins 2009 No. 31 (SA) s 7(2)

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;

def associate ins 2007 No. 53 (SA) s 5(2)

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

def augmentation ins 2009 No. 31 (SA) s 7(2)

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

def augmentation connection agreement ins 2009 No. 31 (SA) s 7(2)

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.

def Australian Energy Market Operator or AEMO ins 2009 No. 31 (SA) s 7(2)

changeover date means 1 July 2009 or some other date fixed as the changeover date by Ministerial Gazette notice;

def changeover date ins 2009 No. 31 (SA) s 7(2)

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;

def civil monetary liability ins 2009 No. 31 (SA) s 7(2)

civil penalty means—

(a)In the case of a breach of a civil penalty provision (other than a rebidding civil penalty provision) by—

(i)a natural person—

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

(B)an amount not exceeding $2000 for every day during which the breach continues; or

(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; or

(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;

def civil penalty ins 2011 No. 7 (SA) s 5(2)

civil penalty provision—see section 2AA(1);

def civil penalty provision ins 2011 No. 7 (SA) s 5(2)

conduct provision—see section 2AA(2);

def conduct provision ins 2011 No. 7 (SA) s 5(2)

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

def connection service ins 2011 No. 7 (SA) s 5(2)

constituent components, in relation to a reviewable regulatory decision, means the matters that constitute the elements or components of the reviewable regulatory decision and on which that reviewable regulatory decision is based and includes—

(a)matters that go to the making of the reviewable regulatory decision; and

(b)decisions made by the AER for the purposes of the reviewable regulatory decision;

def constituent components ins 2013 No. 79 (SA) s 4(1)

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);

def declared network functions ins 2009 No. 31 (SA) s 7(2)

declared power system of an adoptive jurisdiction has the meaning given by the application Act of that jurisdiction;

def declared power system ins 2009 No. 31 (SA) s 7(2)

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;

def declared shared network ins 2009 No. 31 (SA) s 7(2)

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;

def declared transmission system ins 2009 No. 31 (SA) s 7(2)

declared transmission system operator of an adoptive jurisdiction has the meaning given by the application Act of that jurisdiction;

def declared transmission system operator ins 2009 No. 31 (SA) s 7(2)

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

def direct control network service ins 2007 No. 53 (SA) s 5(4)

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

def Dispute resolution panel ins 2009 No. 31 (SA) s 7(2)

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;

def distribution determination ins 2007 No. 53 (SA) s 5(4)

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;

def distribution reliability standard ins 2007 No. 53 (SA) s 5(4)

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;

def distribution service standard ins 2007 No. 53 (SA) s 5(4)

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;

def distribution system ins 2007 No. 53 (SA) s 5(27)

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;

def distribution system safety duty ins 2007 No. 53 (SA) s 5(4)

amd 2009 No. 31 (SA) s 7(4)

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;

def electricity network service ins 2007 No. 53 (SA) s 5(5)

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;

def electricity services amd 2007 No. 53 (SA) s 5(6)

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

def end user ins 2007 No. 53 (SA) s 5(7)

sub 2011 No. 7 (SA) s 5(3)

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

def energy ombudsman ins 2011 No. 7 (SA) s 5(2)

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;

def form of regulation factors ins 2007 No. 53 (SA) s 5(8)

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

def general market information order ins 2009 No. 31 (SA) s 7(2)

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

def general regulatory information order ins 2007 No. 53 (SA) s 5(8)

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;

def interconnected national electricity system ins 2007 No. 53 (SA) s 5(9)

amd 2009 No. 31 (SA) s 7(6)

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;

def jurisdictional derogation amd 2009 No. 31 (SA) s 7(6)

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;

def jurisdictional electricity legislation sub 2007 No. 53 (SA) s 5(10)

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;

def jurisdictional regulator amd 2007 No. 53 (SA) s 5(11)

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;

def market information instrument ins 2009 No. 31 (SA) s 7(2)

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

def market information notice ins 2009 No. 31 (SA) s 7(2)

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;

def MCE directed review ins 2007 No. 53 (SA) s 5(12)

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;

def Ministerial Gazette notice ins 2009 No. 31 (SA) s 7(2)

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

def Ministerial pilot metering determination ins 2009 No. 54 (SA) s 4(2)

Ministerial smart metering determination means—

(a)(Repealed)

(b)a Ministerial pilot metering determination;

def Ministerial smart metering determination ins 2009 No. 54 (SA) s 4(2)

amd 2013 No. 69 (SA) s 4(1)

Ministerial smart meter rollout determination ...

def Ministerial smart meter rollout determination ins 2009 No. 54 (SA) s 4(2)

om 2013 No. 69 (SA) s 4(2)

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

national electricity market objective ...

def national electricity market objective om 2007 No. 53 (SA) s 5(13)

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;

def national electricity market amd 2009 No. 31 (SA) s 7(6)

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

def national electricity objective ins 2007 No. 53 (SA) s 5(13)

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;

def National Electricity Rules amd 2007 No. 53 (SA) s 5(14)

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;

def national electricity system amd 2007 No. 53 (SA) s 5(15)

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

def National Energy Retail Law ins 2011 No. 7 (SA) s 5(2)

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

def National Energy Retail Rules ins 2011 No. 7 (SA) s 5(2)

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

def National Gas Law ins 2011 No. 7 (SA) s 5(2)

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

def National Gas Rules ins 2011 No. 7 (SA) s 5(2)

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

def national transmission grid ins 2009 No. 31 (SA) s 7(2)

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

def National Transmission Planner ins 2009 No. 31 (SA) s 7(2)

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

def negotiated network service ins 2007 No. 53 (SA) s 5(16)

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.

def NEMMCO sub 2009 No. 31 (SA) s 7(1)–(2)

network agreement means the agreement required by section 50D(1);

def network agreement ins 2009 No. 31 (SA) s 7(2)

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

def network revenue or pricing determination ins 2007 No. 53 (SA) s 5(17)

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;

def network service provider ins 2007 No. 53 (SA) s 5(17)

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

def network service provider performance report ins 2007 No. 53 (SA) s 5(17)

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

def network service user ins 2007 No. 53 (SA) s 5(17)

NTP functions means the functions described in section 49(2);

def NTP functions ins 2009 No. 31 (SA) s 7(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;

def offence provision sub 2007 No. 53 (SA) s 5(18)

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

def officer ins 2007 No. 53 (SA) s 5(18)

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;

def participant derogation amd 2009 No. 31 (SA) s 7(6)

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;

def prospective network service user ins 2007 No. 53 (SA) s 5(19)

protected information has the meaning given by section 54(1);

def protected information ins 2009 No. 31 (SA) s 7(2)

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

def rebidding civil penalty provision ins 2011 No. 7 (SA) s 5(2)

recognised energy industry ombudsman ...

def recognised energy industry ombudsman ins 2009 No. 31 (SA) s 7(2)

om 2011 No. 7 (SA) s 5(4)

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;

def Registered participant amd 2009 No. 31 (SA) s 7(6)

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;

def regulated distribution system operator ins 2007 No. 53 (SA) s 5(20)

regulated network service provider means—

(a)a regulated distribution system operator; or

(b)a regulated transmission system operator;

def regulated network service provider ins 2007 No. 53 (SA) s 5(20)

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;

def regulated transmission system operator amd 2007 No. 53 (SA) s 5(21)

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;

def regulatory information instrument ins 2007 No. 53 (SA) s 5(22)

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

def regulatory information notice ins 2007 No. 53 (SA) s 5(22)

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

def regulatory obligation or requirement ins 2007 No. 53 (SA) s 5(22)

regulatory obligation ...

def regulatory obligation om 2007 No. 53 (SA) s 5(22)

regulatory payment has the meaning given by section 2E;

def regulatory payment ins 2007 No. 53 (SA) s 5(22)

relevant court means any court of this jurisdiction;

relevant participant ...

def relevant participant amd 2009 No. 31 (SA) s 7(6)

om 2011 No. 7 (SA) s 5(4)

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

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

def retail customer ins 2011 No. 7 (SA) s 5(2)

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

def retailer ins 2011 No. 7 (SA) s 5(2)

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;

def Rule dispute ins 2011 No. 7 (SA) s 5(2)

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

def revenue and pricing principles ins 2007 No. 53 (SA) s 5(23)

reviewable regulatory decision has the meaning given by section 71A;

def reviewable regulatory decision ins 2013 No. 79 (SA) s 4(2)

shared network capability service means a service described in section 50D(1) as a shared network capability service;

def shared network capability service ins 2009 No. 31 (SA) s 7(2)

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

def shared transmission service ins 2009 No. 31 (SA) s 7(2)

smart meter amendments means the amendments to this Law made by section 5 of the National Electricity (South Australia) (Smart Meters) Amendment Act 2009 of South Australia;

def smart meter amendments ins 2009 No. 54 (SA) s 4(3)

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;

def statutory functions ins 2009 No. 31 (SA) s 7(2)

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;

def superseded jurisdictional rules ins 2009 No. 31 (SA) s 7(2)

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;

def transmission determination sub 2007 No. 53 (SA) s 5(24)

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;

def transmission service standard amd 2007 No. 53 (SA) s 5(25)

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;

def transmission system ins 2007 No. 53 (SA) s 5(28)

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;

def transmission system safety duty ins 2007 No. 53 (SA) s 5(26)

amd 2009 No. 31 (SA) s 7(5)

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

def Tribunal ins 2007 No. 53 (SA) s 5(26)

user or consumer association has the meaning given by section 71A;

def user or consumer association ins 2013 No. 79 (SA) s 4(3)

user or consumer interest group has the meaning given by section 71A;

def user or consumer interest group ins 2013 No. 79 (SA) s 4(3)

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.

def VENCorp ins 2009 No. 31 (SA) s 7(2)

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

s 2 amd 2011 No. 7 (SA) s 5

2AMeaning of access dispute

An access dispute is—

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

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

s 2A ins 2007 No. 53 (SA) s 6

sub 2011 No. 7 (SA) s 6

2AAMeaning of civil penalty provision and conduct provision

(1)A civil penalty provision is—

(a)a provision of this Law specified in the Table at the foot of this subsection; or

(b)a rebidding civil penalty provision; or

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

Table

Provision	Section heading
Section 11(1), (2), (3) and (4)	Electricity market activities in this jurisdiction
Section 14A	Regulated transmission system operator must comply with transmission determination
Section 14B	Regulated distribution system operator must comply with distribution determination
Section 28N	Compliance with regulatory information notice that is served
Section 28O	Compliance with general regulatory information order
Section 50D(1)	Network agreement
Section 50F(1), (4) and (5)	Augmentation
Section 53C(3) and (4	Compliance with market information instrument
Section 136	Compliance with access determination
Section 157(1)	Preventing or hindering access

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

s 2AA ins 2011 No. 7 (SA) s 7

2BMeaning 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.

s 2B ins 2007 No. 53 (SA) s 6

2CMeaning 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.

s 2C ins 2007 No. 53 (SA) s 6

2DMeaning 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

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

Note—

1See also section 7A(2)(b).

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

s 2D ins 2007 No. 53 (SA) s 6

amd 2011 No. 7 (SA) s 8

2EMeaning 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).

s 2E ins 2007 No. 53 (SA) s 6

2FForm of regulation factors

The form of regulation factors are—

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

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

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

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

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

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

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

s 2F ins 2007 No. 53 (SA) s 6

3Interpretation generally

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

4Savings and transitionals

Schedule 3 to this Law has effect.

5Participating jurisdictions

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

(a)the State of South Australia; and

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

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

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

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

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

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

6Ministers 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.

s 6 amd 2007 No. 53 (SA) s 7

6ANominated distributors

(1)The regulations under the application Act of a participating jurisdiction (a local regulation) may—

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

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

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

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

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

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

(3)The nominated distributor—

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

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

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

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

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

or for both.

(5)The Minister responsible for administering the application Act (other than the application Act of South Australia) under which a local regulation referred to in this section is made is to make arrangements for notice of the making and publication of the regulation to be published for information in the South Australian Government Gazette.

s 6A ins 2011 No. 7 (SA) s 9

7National 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.

s 7 sub 2007 No. 53 (SA) s 8

7ARevenue 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.

s 7A ins 2007 No. 53 (SA) s 8

8MCE 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.

s 8 amd 2007 No. 53 (SA) s 9

9National Electricity Rules to have force of law

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

10Application 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.

10ACorporations Act displacement

(1)The Regulations may declare a relevant provision to be a Corporations legislation displacement provision for the purposes of section 5G of the Corporations Act 2001 of the Commonwealth in relation to the provisions of Chapter 5 of that Act.

(2)In this section—

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

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

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

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

s 10A ins 2011 No. 7 (SA) s 10

div hdg ins 2007 No. 53 (SA) s 10

11Electricity 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 2AA(1).

(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 2AA(1).

(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 2AA(1).

(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 2AA(1).

s 11 amd 2007 No. 53 (SA) s 11; 2009 No. 31 (SA) s 8; 2011 No. 7 (SA) s 11

12Registration 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.

s 12 amd 2009 No. 31 (SA) s 9

13Exemptions 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.

14Evidence 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.

s 14 sub 2009 No. 31 (SA) s 10

div hdg ins 2007 No. 53 (SA) s 12

14ARegulated 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 2AA(1).

s 14A ins 2007 No. 53 (SA) s 12

amd 2011 No. 7 (SA) s 12

14BRegulated 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 2AA(1).

s 14B ins 2007 No. 53 (SA) s 12

amd 2011 No. 7 (SA) s 13

15Functions 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 persons under section 61 of this Law or section 44AAG of the Competition and Consumer Act 2010 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.

s 15 amd 2007 No. 53 (SA) s 13; 2009 No. 31 (SA) s 11; 2011 No. 7 (SA) s 14

16Manner 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—

(i)the regulated network service provider to whom the determination will apply; and

(ii)any affected Registered participant; and

(iii)if AEMO is affected by the determination—AEMO; and

(iv)network service users or prospective network service users of the relevant services that the AER considers have an interest in the determination; and

(v)any user or consumer associations or user or consumer interest groups that the AER considers have an interest in the determination,

are, in accordance with the Rules—

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

(vii)given a reasonable opportunity to make submissions in respect of the determination before it is made; and

(c)in relation to making a reviewable regulatory decision, specify—

(i)the manner in which the constituent components of the decision relate to each other; and

(ii)the manner in which that interrelationship has been taken into account in the making of the reviewable regulatory decision; and

(d)if the AER is making a reviewable regulatory decision and there are 2 or more possible reviewable regulatory decisions that will or are likely to contribute to the achievement of the national electricity objective—

(i)make the decision that the AER is satisfied will or is likely to contribute to the achievement of the national electricity objective to the greatest degree (the preferable reviewable regulatory decision); and

(ii)specify reasons as to the basis on which the AER is satisfied that the decision is the preferable reviewable regulatory decision.

(2)In addition, the AER—

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

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

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

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

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

(4)In this section—

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

s 16 sub 2007 No. 53 (SA) s 14

amd 2009 No. 31 (SA) s 12; 2011 No. 7 (SA) s 15; 2013 No. 79 (SA) s 5

17Delegations

Any delegation by the AER under section 44AAH of the Competition and Consumer Act 2010 of the Commonwealth extends to, and has effect for the purposes of, this Law, the Regulations and the Rules.

18Confidentiality

Section 44AAF of the Competition and Consumer Act 2010 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.

s 18 sub 2007 No. 53 (SA) s 15

div hdg sub 2007 No. 53 (SA) s 16

19Definitions

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.

s 19 def relevant provision sub 2007 No. 53 (SA) s 17

20Authorised person

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

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

s 20 sub 2007 No. 53 (SA) s 18

20AIdentity cards

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

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

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

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

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

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

s 20A ins 2007 No. 53 (SA) s 18

20BReturn of identity cards

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

Maximum penalty: $500.

s 20B ins 2007 No. 53 (SA) s 18

21Search warrant

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

(a)believes on reasonable grounds that—

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

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

(b)reasonably suspects that—

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(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.

s 21 amd 2007 No. 53 (SA) s 19

22Announcement 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).

s 22 sub 2007 No. 53 (SA) s 20

23Announcement before entry

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

(a)the safety of any person; or

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

s 23 sub 2007 No. 53 (SA) s 20

24Copies of seized documents

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

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

s 24 amd 2007 No. 53 (SA) s 21

25Retention 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.

s 25 sub 2007 No. 53 (SA) s 22

26Extension 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.

s 26 amd 2007 No. 53 (SA) s 23

27Obstruction 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—$2000;

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

s 27 amd 2007 No. 53 (SA) s 24

div hdg ins 2007 No. 53 (SA) s 25

28Power 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—$2000;

(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—$2000;

(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.

s 28 sub 2007 No. 53 (SA) s 25

div hdg ins 2007 No. 53 (SA) s 25

sdiv 1 (ss 28A–28E) ins 2007 No. 53 (SA) s 25

28ADefinitions

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.

sdiv 1 (ss 28A–28E) ins 2007 No. 53 (SA) s 25

28BMeaning 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.

sdiv 1 (ss 28A–28E) ins 2007 No. 53 (SA) s 25

28CMeaning 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.

sdiv 1 (ss 28A–28E) ins 2007 No. 53 (SA) s 25

28DMeaning 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.

sdiv 1 (ss 28A–28E) ins 2007 No. 53 (SA) s 25

28EDivision does not limit operation of information gathering powers under Division 3

This Division does not limit the operation of Division 3.

sdiv 1 (ss 28A–28E) ins 2007 No. 53 (SA) s 25

sdiv 2 (ss 28F–28J) ins 2007 No. 53 (SA) s 25

28FService 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.

sdiv 2 (ss 28F–28J) ins 2007 No. 53 (SA) s 25

28GAdditional 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.

sdiv 2 (ss 28F–28J) ins 2007 No. 53 (SA) s 25

28HAER 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.

sdiv 2 (ss 28F–28J) ins 2007 No. 53 (SA) s 25

28IPublication 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.

sdiv 2 (ss 28F–28J) ins 2007 No. 53 (SA) s 25

28JOpportunity 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.

sdiv 2 (ss 28F–28J) ins 2007 No. 53 (SA) s 25

sdiv hdg ins 2007 No. 53 (SA) s 25

28KForm 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.

s 28K ins 2007 No. 53 (SA) s 25

28LFurther 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.

s 28L ins 2007 No. 53 (SA) s 25

28MFurther 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.

s 28M ins 2007 No. 53 (SA) s 25

amd 2009 No. 31 (SA) s 13

sdiv hdg ins 2007 No. 53 (SA) s 25

28NCompliance with regulatory information notice that is served

On being served a regulatory information notice, a person named in the notice must comply with the notice.

Note—

This section is a civil penalty provision.

s 28N ins 2007 No. 53 (SA) s 25

amd 2011 No. 7 (SA) s 16

28OCompliance 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.

Note—

This section is a civil penalty provision.

s 28O ins 2007 No. 53 (SA) s 25

amd 2011 No. 7 (SA) s 17

28PExemptions 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.

s 28P ins 2007 No. 53 (SA) s 25

28QAssumptions 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.

s 28Q ins 2007 No. 53 (SA) s 25

sdiv 5 (ss 28R–28U) ins 2007 No. 53 (SA) s 25

28RProviding 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—$2000;

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

sdiv 5 (ss 28R–28U) ins 2007 No. 53 (SA) s 25

28SPerson 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.

sdiv 5 (ss 28R–28U) ins 2007 No. 53 (SA) s 25

28TLegal 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.

sdiv 5 (ss 28R–28U) ins 2007 No. 53 (SA) s 25

28UProtection 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).

sdiv 5 (ss 28R–28U) ins 2007 No. 53 (SA) s 25

div hdg ins 2007 No. 53 (SA) s 25

28VPreparation of network service provider performance reports

(1)Subject to this section, the AER may prepare a report on the financial performance or operational performance of 1 or more network service providers in providing electricity network services.

Note—

The AER may only prepare a report under subsection (1) if the preparation of the report will or is likely to contribute to the achievement of the national electricity objective: see section 16.

(2)A report prepared under this section may—

(a)deal with the financial or operational performance of the network service provider in relation to—

(i)complying with (as the case requires) distribution service standards or transmission service standards; and

(ii)standards relating to the provision of electricity network services to network service users or end users; and

(iii)the profitability of network service providers in providing electricity network services; and

(b)if the AER considers it appropriate, deal with the performance of the network service provider in relation to other matters or things if that performance is directly related to the performance or exercise by the AER of an AER economic regulatory function or power.

(3)A report prepared under this section may include—

(a)information provided to the AER by a person in compliance with a regulatory information instrument; and

(b)in the case of a report dealing with the financial performance of 1 or more network service providers, a comparison of the profitability of the network service providers to which the report relates from the provision of electricity network services by them.

(4)Before preparing a report under this section, the AER must, in accordance with the Rules, consult with the persons or bodies specified by the Rules.

(4A)Any information that is used to prepare a report under this section may be used by the AER in preparing any report under the National Energy Retail Law or the National Energy Retail Rules, including (but not limited to) a retail market performance report under Division 2 of Part 12 of that Law.

(5)The AER may publish a report prepared under this section on its website.

s 28V ins 2007 No. 53 (SA) s 25

amd 2011 No. 7 (SA) s 18

div hdg ins 2007 No. 53 (SA) s 25

28WAuthorised 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 Competition and Consumer Act 2010 of the Commonwealth.

s 28W ins 2007 No. 53 (SA) s 25

28XDisclosure 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.

s 28X ins 2007 No. 53 (SA) s 25

28YDisclosure 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.

s 28Y ins 2007 No. 53 (SA) s 25

28ZDisclosure 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.

s 28Z ins 2007 No. 53 (SA) s 25

28ZADisclosure 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.

s 28ZA ins 2007 No. 53 (SA) s 25

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.

s 28ZAB ins 2009 No. 31 (SA) s 14

28ZBDisclosure 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.

s 28ZB ins 2007 No. 53 (SA) s 25

amd 2009 No. 31 (SA) s 15

div hdg ins 2007 No. 53 (SA) s 25

28ZCConsideration 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.

s 28ZC ins 2007 No. 53 (SA) s 25

28ZDUse of information provided under a notice under section 28 or a regulatory information instrument

The AER may use information provided to it by a person in compliance with a notice under section 28 or a regulatory information instrument for any purposes connected with the performance or exercise of a function or power of the AER under—

(a)this Law or the Rules; or

(b)the National Gas Law or the National Gas Rules; or

(c)the National Energy Retail Law or the National Energy Retail Rules.

s 28ZD ins 2007 No. 53 (SA) s 25

sub 2011 No. 7 (SA) s 19

28ZEAER 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.

s 28ZE ins 2007 No. 53 (SA) s 25

28ZFAER enforcement guidelines

(1)The AER may prepare guidelines about the matters it will have regard to before—

(a)making an application under section 61; or

(b)serving an infringement notice under section 74, or

(c)accepting an enforceable undertaking under section 59A.

(2)The AER must publish guidelines prepared under subsection (1) on its website.

s 28ZF ins 2007 No. 53 (SA) s 25

amd 2011 No. 7 (SA) s 20

28ZGAER 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).

s 28ZG ins 2007 No. 53 (SA) s 25

28ZHSingle documentation

(1)This section applies if the AER is authorised to prepare a document under this Law or the Rules for a purpose and is also authorised to prepare a document or documents under any of the following:

(a)the National Gas Law;

(b)the National Gas Rules;

(c)the National Energy Retail Law;

(d)the National Energy Retail Rules,

for the same or a similar, related or corresponding purpose.

(2)The AER may satisfy the requirements of this Law and the Rules regarding the document under this Law and the Rules by preparing and making (and where relevant publishing) a single document.

Note—

See also section 68A of the National Gas Law and section 219 of the National Energy Retail Law.

s 28ZH ins 2011 No. 7 (SA) s 21

28ZIUse of information

(1)The AER may use the information obtained under this Law or the Rules for a purpose connected with the performance or exercise of a function or power of the AER under any of the following:

(a)the National Gas Law;

(b)the National Gas Rules;

(c)the National Energy Retail Law;

(d)the National Energy Retail Rules.

(2)The AER may use the information obtained under any such Law or Rules for a purpose connected with the performance or exercise of a function or power of the AER under this Law or the Rules.

(3)This section does not limit any other provision of this Law that provides for the use of information obtained under this Law or the Rules.

Note—

See also section 68B of the National Gas Law and section 220 of the National Energy Retail Law.

s 28ZI ins 2011 No. 7 (SA) s 21

28ZJRecord of reviewable regulatory decisions

(1)The AER must, in making a reviewable regulatory decision, keep a written record of decision related matter.

(2)In this section—

decision related matter, in relation to a reviewable regulatory decision, means—

(a)the decision and the written record of it and any written reasons for it; and

(b)any document, proposal or information required or allowed under the Rules to be submitted as part of the process for the making of the decision; and

(c)any written submissions made to the AER after the proposal to which the decision relates was lodged by a network service provider and before the decision was made; and

(d)any reports and materials (including (but not limited to) consultant reports, data sets, models or other documents) considered by the AER in making the decision; and

(e)any draft of the decision that has been released for consultation purposes; and

(f)any submissions on the draft of the decision or the decision itself considered by the AER; and

(g)the transcript of any hearing (if any) conducted by the AER for the purpose of making the decision.

s 28ZJ ins 2013 No. 79 (SA) s 6

29Functions 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.

30Delegations

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.

31Confidentiality

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.

s 31 sub 2007 No. 53 (SA) s 26

32AEMC 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.

s 32 amd 2007 No. 53 (SA) s 27

33AEMC 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.

34Rule making powers

(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;

(iv)the provision of connection services to retail customers; and

(aa)facilitating and supporting the provision of services to retail customers; and

(b)any matter or thing contemplated by this 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;

(fa)provide for procedures governing the operation of the national electricity market and the sale and supply of electricity to retail customers;

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

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

(ii)as amended from time to time;

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

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

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

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

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

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

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

(i)AEMO; or

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

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

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

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

(i)AEMO; or

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

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

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

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

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

s 34 amd 2007 No. 53 (SA) s 28; 2009 No. 31 (SA) s 16; 2011 No. 7 (SA) s 22

35Rules 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”.

s 35 sub 2007 No. 53 (SA) s 29

36AEMC 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.

s 36 sub 2007 No. 53 (SA) s 29

37Documents 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 de scribed) 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).

s 37 amd 2007 No. 53 (SA) s 30

38The Reliability Panel

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

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

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

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

(c)any other functions and powers conferred on it under this 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.

39Establishment 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.

41MCE directions

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

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

(ab)any matter relating to any other market for electricity; or

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

(c)any matter relating to the Rules; or

(d)the effectiveness of competition in a market for electricity for the purpose of giving advice about whether to retain, remove or reintroduce price controls on prices for retail electricity services.

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

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

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

s 41 amd 2007 No. 53 (SA) s 32

42Terms of reference

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

Example—

The terms of reference may require a MCE directed review to be conducted—

(a)about a specific matter within a specified time; or

(b)whenever a specified event occurs; or

(c)on an annual basis.

(2)Without limiting subsection (1), the MCE may in its direction to the AEMC do one or more of the following—

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

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

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

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

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

(ea)require the AEMC to assess a particular matter in relation to services provided in a market for electricity against specified criteria or a specified methodology;

(eb)require the AEMC—

(i)to assess a particular matter in relation to services provided in a market for electricity; and

(ii)to develop appropriate and relevant criteria, or an appropriate and relevant methodology, for the purpose of the required assessment;

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

s 42 amd 2007 No. 53 (SA) s 33

43Notice 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.

44Conduct 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.

45Reviews by AEMC

(1)The AEMC may conduct a review into—

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

(b)any matter relating to the Rules.

(2)A review—

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

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

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

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

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

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

(d)publish discussion papers or draft reports.

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

(a)give a copy of the report to the MCE; and

(b)publish a report or a version of a report from which confidential information has been omitted in accordance with section 48.

s 45 amd 2007 No. 53 (SA) s 34

46AEMC 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.

s 46 amd 2007 No. 53 (SA) s 35

47Fees

(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.

s 47 amd 2007 No. 53 (SA) s 36

48Confidentiality 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.

s 48 amd 2007 No. 53 (SA) s 37

pt hdg sub 2009 No. 31 (SA) s 17

div hdg sub 2009 No. 31 (SA) s 17

49AEMO’s statutory functions

(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—

1AEMO has additional functions under its Constitution.

2It 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.

3AEMO 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.

4AEMO has additional functions and powers under the National Energy Retail Law and the National Energy Retail Rules.

(2)In its role as National Transmission Planner, AEMO has the following functions:

(a)to prepare, maintain and publish a plan for the development of the national transmission grid (the National Transmission Network Development Plan) in accordance with the Rules;

(b)to establish and maintain a database of information relevant to planning the development of the national transmission grid and to make the database available to the public;

(c)to keep the national transmission grid under review and provide advice on the development of the grid or projects that could affect the grid;

(d)to provide a national strategic perspective for transmission planning and coordination;

(e)any other functions conferred on AEMO under this 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.

s 49 amd 2007 No. 53 (SA) s 38

sub 2009 No. 31 (SA) s 17

amd 2011 No. 7 (SA) s 23

49AAEMO’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.

s 49A ins 2009 No. 31 (SA) s 17

49BDelegation

(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.

s 49B ins 2009 No. 31 (SA) s 17

div hdg sub 2009 No. 31 (SA) s 17

sdiv hdg ins 2009 No. 31 (SA) s 17

50Application 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.

s 50 sub 2009 No. 31 (SA) s 17

50AAEMO 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.

s 50A ins 2009 No. 31 (SA) s 17

sdiv hdg ins 2009 No. 31 (SA) s 17

50BAdditional 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.

s 50B ins 2009 No. 31 (SA) s 17

sdiv hdg ins 2009 No. 31 (SA) s 17

50CAEMO’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.

s 50C ins 2009 No. 31 (SA) s 17

50DNetwork agreement

(1)A declared transmission system operator must have an agreement (a network agreement) with AEMO—

(a)for the provision of electricity network services (shared network capability services) for the performance of AEMO’s declared network functions; and

(b)containing such other provisions as may be required by the Rules.

Note—

Subsection (1) is a civil penalty provision.

(2)A declared transmission system operator or a prospective declared transmission system operator must, if asked to do so by AEMO, offer to enter into a network agreement with AEMO subject to and in accordance with the Rules.

(3)The offer must be submitted within 20 business days after the date of the request.

(4)The terms and conditions of a network agreement under this section are to be regarded as protected information but are liable to disclosure under the provisions of Division 6 that allow for the disclosure of protected information.

Exception

Insofar as the terms and conditions of a network agreement can be inferred from a determination to be published on AEMO’s website under 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.

s 50D ins 2009 No. 31 (SA) s 17

amd 2011 No. 7 (SA) s 24

50EConnection agreements

(1)A person to whom this section applies must have connection agreements as follows:

(a)an agreement with AEMO for the provision of shared transmission services; and

(b)an agreement with the relevant declared transmission system operator for the provision of connection services as defined in the Rules.

(2)An agreement required by this section must be in accordance with the Rules.

(3)If—

(a)a person to whom this section applies (the applicant) wants to connect to a declared shared network; but

(b)the fault levels at the proposed connection point would, if the connection were allowed, be likely to exceed the limits fixed under the Rules,

AEMO may, as a condition of entering into a connection agreement with the applicant, require the applicant to make a contribution to the cost of carrying out the augmentation to the declared shared network necessary to reduce fault levels to an acceptable level.

(4)This section applies to each of the following:

(a)a network service provider for a distribution system situated in the adoptive jurisdiction;

(b)another network service user who is provided with electricity network services by means of, or in connection with, the declared shared network.

s 50E ins 2009 No. 31 (SA) s 17

50FAugmentation

(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 2AA(1).

s 50F ins 2009 No. 31 (SA) s 17

amd 2011 No. 7 (SA) s 25

50GAEMO 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.

s 50G ins 2009 No. 31 (SA) s 17

50HResolution 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).

s 50H ins 2009 No. 31 (SA) s 17

50JGeneral 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).

s 50J ins 2009 No. 31 (SA) s 17

div hdg sub 2009 No. 31 (SA) s 17

51Ministerial request

(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.

s 51 sub 2009 No. 31 (SA) s 17

51ACompliance with request

(1)AEMO must comply with a request under this Division.

(2)However, if compliance with the request would involve disclosure of protected information, AEMO may only provide the information if its disclosure is authorised under this Law or the Rules.

Note—

The Minister of an adoptive jurisdiction may be entitled to certain protected information under section 50A.

s 51A ins 2009 No. 31 (SA) s 17

51BQuarterly report

(1)AEMO must report to the MCE in each quarter on its work under this Division for the previous quarter.

(2)The report must—

(a)summarise each request received in the relevant quarter; and

(b)state by whom each request was made.

s 51B ins 2009 No. 31 (SA) s 17

div hdg sub 2009 No. 31 (SA) s 17

52AEMO 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.

s 52 sub 2009 No. 31 (SA) s 17

div hdg sub 2009 No. 31 (SA) s 17

53Information 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.

s 53 sub 2009 No. 31 (SA) s 17

53AMaking 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.

s 53A ins 2009 No. 31 (SA) s 17

53BService 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.

s 53B ins 2009 No. 31 (SA) s 17

53CCompliance with market information instrument

(1)A market information instrument takes effect as follows—

(a)in the case of a general market information order—on publication on AEMO’s website; or

(b)in the case of a market information notice—on service of the notice on the person to whom it is addressed.

(2)AEMO may, by written notice, exempt a person from compliance with a general market information order—

(a)unconditionally or on specified conditions; and

(b)wholly or to a specified extent.

(3)Subject to any exemption, a person who is a member of a class to which a general market information order applies must comply with the order.

Note—

Subsection (3) is a civil penalty provision.

(4)A person on whom a market information notice is served must comply with the notice.

Note—

Subsection (4) is a civil penalty provision.

(5)The duty to comply with a market information instrument prevails over a duty of confidence.

(6)However—

(a)a person cannot be required by a market information instrument to disclose information that is the subject of legal professional privilege; and

(b)a natural person cannot be required by a market information instrument to disclose information that would incriminate the person or make the person liable to a criminal penalty under the law of an Australian jurisdiction (whether or not the jurisdiction is a participating jurisdiction).

(7)A person incurs no liability, by complying with a market information instrument, for breach of contract, breach of confidence or any other civil wrong.

s 53C ins 2009 No. 31 (SA) s 17

amd 2011 No. 7 (SA) s 26

53DUse of information

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.

s 53D ins 2009 No. 31 (SA) s 17

53EProviding 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—$2000;

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

s 53E ins 2009 No. 31 (SA) s 17

div hdg sub 2009 No. 31 (SA) s 17

sdiv hdg ins 2009 No. 31 (SA) s 17

54Protected 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.

s 54 sub 2009 No. 31 (SA) s 17

sdiv hdg ins 2009 No. 31 (SA) s 17

54AAuthorised 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).

s 54A ins 2009 No. 31 (SA) s 17

54BDisclosure 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.

s 54B ins 2009 No. 31 (SA) s 17

54CDisclosure required or permitted by law etc

(1)The disclosure of protected information as required or permitted by a law of the Commonwealth, a State or Territory is authorised.

(2)The disclosure of protected information to any of the following is authorised:

(a)the Australian Competition and Consumer Commission;

(b)the Australian Energy Regulator;

(c)the Australian Energy Market Commission;

(d)the Economic Regulation Authority of Western Australia;

(e)a jurisdictional regulator;

(f)if the information is reasonably required by an energy ombudsman to resolve a dispute between a Registered participant and a retail customer but the information is not end-use consumer information—the energy ombudsman;

(g)a prescribed body;

(h)any staff or consultant assisting a body mentioned above in performing its functions or exercising its powers.

(3)A person or body to whom protected information is disclosed under subsection (2) may use the information for any purpose connected with the performance of the functions, or the exercise of the powers, of the person or body.

(4)AEMO may impose conditions to be complied with in relation to protected information disclosed under subsection (2).

(5)The disclosure of protected information by a person in the ordinary course of carrying out functions as an officer or employee of, or consultant to, AEMO or a body mentioned in subsection (2) is authorised.

s 54C ins 2009 No. 31 (SA) s 17

amd 2011 No. 7 (SA) s 27

54DDisclosure 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.

s 54D ins 2009 No. 31 (SA) s 17

54EDisclosure 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.

s 54E ins 2009 No. 31 (SA) s 17

54FDisclosure 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.

s 54F ins 2009 No. 31 (SA) s 17

54GDisclosure 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).

s 54G ins 2009 No. 31 (SA) s 7

54HDisclosure 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.

s 54H ins 2009 No. 31 (SA) s 17

div hdg sub 2009 No. 31 (SA) s 17

55Definitions

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.

s 55 sub 2009 No. 31 (SA) s 17

55AAEMO’s Rule funds

(1)Subject to the Rules, AEMO is responsible for the administration of each Rule fund.

(2)AEMO must, if required to do so by the Rules, establish and maintain a new Rule fund in accordance with the Rules.

(3)Nothing in this Law or the Rules constitutes AEMO, or a director of AEMO, as a trustee of a Rule fund.

s 55A ins 2009 No. 31 (SA) s 17

55BPayments 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.

s 55B ins 2009 No. 31 (SA) s 17

55CInvestment

(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.

s 55C ins 2009 No. 31 (SA) s 17

pt hdg ins 2007 No. 53 (SA) s 39

57AFunctions 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.

s 57A ins 2007 No. 53 (SA) s 39

pt hdg ins 2007 No. 53 (SA) s 39

57BFunctions 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.

s 57B ins 2007 No. 53 (SA) s 39

59Instituting 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.

div hdg ins 2011 No. 7 (SA) s 29

59AEnforceable undertakings

(1)The AER may accept a written undertaking given by a person for the purposes of this section in connection with a matter in relation to which the AER has a function or power under this Law or the Rules.

(2)A person may withdraw or vary the undertaking at any time, but only with the consent of the AER.

(3)If the AER considers that the person who gave the undertaking has breached any of its terms, the AER may apply to the Court for an order under subsection (4).

(4)If the Court is satisfied that the person has breached a term of the undertaking, the Court may make any or all of the following orders:

(a)an order directing the person to comply with that term of the undertaking;

(b)an order directing the person to pay the Commonwealth an amount up to the amount of any financial benefit that the person has obtained directly or indirectly and that is attributable to the breach;

(c)an order that the Court considers appropriate directing the person to compensate any other person who has suffered loss or damage as a result of the breach;

(d)any other order that the Court considers appropriate.

s 59A ins 2011 No. 7 (SA) s 29

60Time limit within which AER may institute proceedings

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

(2)A person, other than the AER, may only institute a proceeding for a breach of a conduct provision by another person within 6 years after the date on which the breach occurred.

s 60 amd 2011 No. 7 (SA) s 30

61Proceedings 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 person 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 person 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 person pay a civil penalty determined in accordance with this Law, the Regulations and the Rules;

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

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

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

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

(3)If a person has engaged, is engaging or is proposing to engage in any conduct in breach of a provision of this 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 person from engaging in the conduct; and

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

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

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

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

s 61 amd 2007 No. 53 (SA) s 41; 2011 No. 7 (SA) s 31

61AProceedings for declaration that a person is in breach of a conduct provision

(1)The Court may make an order, on application by a person other than the AER, declaring that another person is in breach of a conduct provision.

(2)If the order declares a person to be in breach of a conduct provision, the order may include one or more of the following:

(a)an order that the person in breach cease, within a specified period, the act, activity or practice constituting the breach;

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

(c)an order that the person in breach implement a specified program for compliance with this Law, the Regulations and the Rules;

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

(3)If a person has engaged, or is engaging or proposing to engage in any conduct in breach of a conduct provision, the Court may, on application by another person (other than the AER), grant an injunction—

(a)restraining the first mentioned person from engaging in the conduct; and

(b)if, in the Court’s opinion, it is desirable to do so—requiring the first mentioned person to do something.

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

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

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

s 61A ins 2011 No. 7 (SA) s 32

61BActions for damages by persons for breach of conduct provisions

A person other than the AER who suffers loss or damage by conduct of another person that was done in breach of a conduct provision may recover the amount of the loss or damage by action against that other person in a court of competent jurisdiction.

s 61B ins 2011 No. 7 (SA) s 32

62Additional Court orders

An order under section 61 by the Court may, in relation to a Registered participant that has been declared in that order to be in breach of a provision of this 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.

s 62 amd 2007 No. 53 (SA) s 42; 2009 No. 31 (SA) s 19

63Orders 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.

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

Every civil penalty ordered to be paid by a person declared to be in breach of a provision of this 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 person 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.

s 64 amd 2007 No. 53 (SA) s 43; 2011 No. 7 (SA) s 33

65Breach of a civil penalty provision is not an offence

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

66Breaches 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.

67Conduct in breach of more than one civil penalty provision

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

(2)However, the person is not liable to more than one civil penalty under this 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.

s 67 amd 2011 No. 7 (SA) s 34

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

(1)A person must not—

(a)aid, abet, counsel or procure a breach of a civil penalty provision or conduct provision by another person; or

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

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

s 68 sub 2011 No. 7 (SA) s 35

68AAttempt to breach civil penalty provision

A person who attempts to commit a breach of a civil penalty provision commits a breach of that provision.

s 68A ins 2011 No. 7 (SA) s 35

69Civil penalties payable to the Commonwealth

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

s 69 amd 2011 No. 7 (SA) s 36

div hdg ins 2007 No. 53 (SA) s 44

69ACommercial 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.

s 69A ins 2007 No. 53 (SA) s 44

amd 2009 No. 31 (SA) s 20

70Applications 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.

s 70 amd 2009 No. 31 (SA) s 21

71Appeals 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.

s 71 sub 2007 No. 53 (SA) s 45

div hdg ins 2007 No. 53 (SA) s 46

sdiv hdg ins 2007 No. 53 (SA) s 46

71ADefinitions

In this Division—

AER information disclosure decision ...

def AER information disclosure decision om 2009 No. 31 (SA) s 22(1)

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, network service user, prospective network service user or end user whose commercial interests are materially affected by the reviewable regulatory decision;

(c)a user or consumer association;

(d)a reviewable regulatory decision process participant;

def affected or interested person or body amd 2013 No. 79 (SA) s 7(1)–(2)

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;

def information disclosure decision ins 2009 No. 31 (SA) s 22(2)

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;

materially preferable NEO decision—see section 71P(2a)(c);

def materially preferable NEO decision ins 2013 No. 79 (SA) s 7(3)

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)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;

reviewable regulatory decision process participant means a person or body who, in relation to a reviewable regulatory decision that is being reviewed—

(a)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 to do so by the AER; or

(b)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 to do so by the AER but which the AER chose to take into account in making that decision,

and includes a Minister of a participating jurisdiction;

def reviewable regulatory decision process participant ins 2013 No. 79 (SA) s 7(4)

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;

def small/medium user or consumer intervener ins 2009 No. 31 (SA) s 22(2)

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;

def user or consumer association amd 2009 No. 31 (SA) s 22; 2013 No. 79 (SA) s 7

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.

sdiv hdg ins 2007 No. 53 (SA) s 46

71BApplications for review

(1)An affected or interested person or body, with the leave of the Tribunal, may apply to the Tribunal for a review of a reviewable regulatory decision.

(2)An application must—

(a)be made in the form and manner determined by the Tribunal; and

(b)specify the grounds for review being relied on.

s 71B ins 2007 No. 53 (SA) s 46

71CGrounds for review

(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.

(1a)An application under section 71B(1) must also specify the manner in which a determination made by the Tribunal varying the reviewable regulatory decision, or setting aside the reviewable regulatory decision and a fresh decision being made by the AER following remission of the matter to the AER by the Tribunal, on the basis of 1 or more grounds raised in the application, either separately or collectively, would, or would be likely to, result in a materially preferable NEO decision.

(2)It is for the applicant to establish a ground listed in subsection (1) and the matter referred to in subsection (1a).

s 71C ins 2007 No. 53 (SA) s 46

amd 2013 No. 79 (SA) s 8

71DBy 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.

s 71D ins 2007 No. 53 (SA) s 46

71ETribunal must not grant leave unless serious issue to be heard and determined etc

Subject to this Subdivision, the Tribunal must not grant leave to apply under section 71B(1) unless it appears to the Tribunal—

(a)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; and

(b)that the applicant has established a prima facie case that a determination made by the Tribunal varying the reviewable regulatory decision, or setting aside the reviewable regulatory decision and a fresh decision being made by the AER following remission of the matter to the AER by the Tribunal, on the basis of 1 or more grounds raised in the application, either separately or collectively, would, or would be likely to, result in a materially preferable NEO decision.

s 71E ins 2007 No. 53 (SA) s 46

amd 2013 No. 79 (SA) s 9

71FLeave 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.

s 71F ins 2007 No. 53 (SA) s 46

71GTribunal 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.

s 71G ins 2007 No. 53 (SA) s 46

71HTribunal 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.

s 71H ins 2007 No. 53 (SA) s 46

71IEffect 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.

s 71I ins 2007 No. 53 (SA) s 46

71JIntervention 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.

s 71J ins 2007 No. 53 (SA) s 46

71KLeave 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 (other than a user or consumer intervener).

(2)(Repealed)

s 71K ins 2007 No. 53 (SA) s 46

amd 2013 No. 79 (SA) s 10

71LLeave 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.

s 71L ins 2007 No. 53 (SA) s 46

71MInterveners 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.

(1a)If an intervener raises a new ground for review under subsection (1) and the matter referred to in subsection (1a), the intervener must also specify the manner in which a determination made by the Tribunal varying the reviewable regulatory decision, or setting aside the reviewable regulatory decision and a fresh decision being made by the AER following remission of the matter to the AER by the Tribunal, on the basis of 1 or more grounds raised in the notice of intervention or in the application for review, either separately or collectively, would, or would be likely to, result in a materially preferable NEO decision.

(2)To avoid doubt, it is for the intervener to establish the ground referred to in subsection (1).

s 71M ins 2007 No. 53 (SA) s 46

amd 2013 No. 79 (SA) s 11

71NParties 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.

s 71N ins 2007 No. 53 (SA) s 46

71OMatters that may and may not be raised in a review

(1)The AER, in a review under this Subdivision, may—

(a)respond to any matter raised by the applicant or an intervener; and

(b)raise any other matter that relates to—

(i)a ground for review; or

(ii)a matter raised in support of a ground for review; or

(iii)a matter relevant to the issues to be considered under section 71P(2a) and (2b).

(2)In a review under this Subdivision, the following provisions apply in relation to a person or body, other than the AER (and so apply at all stages of the proceedings before the Tribunal):

(a)a regulated network service provider to whom the reviewable regulatory decision being reviewed applies may not raise in relation to the issue of whether a ground for review exists or has been made out any matter that was not raised and maintained by the provider in submissions to the AER before the reviewable regulatory decision was made;

(b)a regulated network service provider whose commercial interests are materially affected by the reviewable regulatory decision being reviewed may not raise in relation to the issue of whether a ground for review exists or has been made out any matter that was not raised and maintained by the provider in submissions to the AER before the reviewable regulatory decision was made;

(c)an affected or interested person or body (other than a provider under paragraph (a) or (b)) may not raise in relation to the issue of whether a ground for review exists or has been made out any matter that was not raised by the person or body in a submission to the AER before the reviewable regulatory decision was made;

(d)subject to paragraphs (a), (b) and (c)—

(i)the applicant, or an intervener who has raised a new ground for review under section 71M, may raise any matter relevant to the issues to be considered under section 71P(2a) and (2b); and

(ii)any person or body, other than the applicant or an intervener who has raised a new ground for review under section 71M, may not raise any matter relevant to the issues to be considered under section 71P(2a) and (2b) unless it is in response to a matter raised by—

(A)the AER under subsection (1)(b)(iii); or

(B)the applicant under subparagraph (i); or

(C)an intervener under subparagraph (i).

(3)For the purposes of subsection (2)(d)—

(a)a reference to an applicant includes a reference to a person or body who has applied to the Tribunal for leave to apply for a review under this Subdivision; and

(b)a reference to an intervener includes a reference to a person or body who has applied to the Tribunal for leave to intervene in a review under this Subdivision.

s 71O ins 2007 No. 53 (SA) s 46

amd 2013 No. 79 (SA) s 12

71PTribunal 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)Subject to subsection (2a), a determination under this section may—

(a)affirm the reviewable regulatory decision; or

(b)vary the reviewable regulatory decision; or

(c)set aside the reviewable regulatory decision and remit the matter back to the AER to make the decision again in accordance with any direction or recommendation of the Tribunal.

(2a)Despite subsection (2), the Tribunal may only make a determination—

(a)to vary the reviewable regulatory decision under subsection (2)(b); or

(b)to set aside the reviewable regulatory decision and remit the matter back to the AER under subsection (2)(c),

if—

(c)the Tribunal is satisfied that to do so will, or is likely to, result in a decision that is materially preferable to the reviewable regulatory decision in making a contribution to the achievement of the national electricity objective (a materially preferable NEO decision) (and if the Tribunal is not so satisfied the Tribunal must affirm the decision); and

(d)in the case of a determination to vary the reviewable regulatory decision—the Tribunal is satisfied that to do so will not require the Tribunal to undertake an assessment of such complexity that the preferable course of action would be to set aside the reviewable regulatory decision and remit the matter to the AER to make the decision again.

(2b)In connection with the operation of subsection (2a) (and without limiting any other matter that may be relevant under this Law)—

(a)the Tribunal must consider how the constituent components of the reviewable regulatory decision interrelate with each other and with the matters raised as a ground for review; and

(b)without limiting paragraph (a), the Tribunal must take into account the revenue and pricing principles (in the same manner in which the AER is to take into account these principles under section 16); and

(c)the Tribunal must, in assessing the extent of contribution to the achievement of the national electricity objective, consider the reviewable regulatory decision as a whole; and

(d)the following matters must not, in themselves, determine the question about whether a materially preferable NEO decision exists:

(i)the establishment of a ground for review under section 71C(1);

(ii)consequences for, or impacts on, the average annual regulated revenue of a regulated network service provider;

(iii)that the amount that is specified in or derived from the reviewable regulatory decision exceeds the amount specified in section 71F(2).

(2c)If the Tribunal makes a determination under subsection (2)(b) or (c), the Tribunal must specify in its determination—

(a)the manner in which it has taken into account the interrelationship between the constituent components of the reviewable regulatory decision and how they relate to the matters raised as a ground for review as contemplated by subsection (2b)(a); and

(b)in the case of a determination to vary the reviewable regulatory decision—the reasons why it is proceeding to make the variation in view of the requirements of subsection (2a)(d).

(3)For the purposes of making a determination of the kind in subsection (2)(a) or (b), the Tribunal may perform all the functions and exercise all the powers of the AER under this Law or the Rules.

(4)(Repealed)

(5)A determination by the Tribunal affirming, varying or setting aside 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.

s 71P ins 2007 No. 53 (SA) s 46

amd 2013 No. 79 (SA) s 13

71QTarget 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.

s 71Q ins 2007 No. 53 (SA) s 46

71RMatters to be considered by Tribunal in making determination

(1)Subject to this section, the Tribunal, in acting under this Division with respect to a reviewable regulatory decision—

(a)must not consider any matter other than review related matter (and any matter arising as a result of consultation under paragraph (b)); and

(b)must, before making a determination, take reasonable steps to consult with (in such manner as the Tribunal thinks appropriate)—

(i)network service users and prospective network service users of the relevant services; and

(ii)any user or consumer associations or user or consumer interest groups,

that the Tribunal considers have an interest in the determination, other than a user or consumer association or a user or consumer interest group that is a party to the review.

(2)(Repealed)

(3)If in a review the Tribunal is of the view that a ground for review has been made out, the Tribunal may, on application by a party to the review, allow new information or material to be submitted if the party can establish to the satisfaction of the Tribunal that the information or material—

(a)was publicly available or known to be available to the AER when it was making the reviewable regulatory decision; or

(b)would assist the Tribunal on any aspect of the determination to be made and was not unreasonably withheld from the AER when it was making the reviewable regulatory decision,

and was (in the opinion of the Tribunal) information or material that the AER would reasonably have been expected to have considered 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 (4) does not limit what may constitute an unreasonable withholding of information or material.

(5a)In addition, if in a review the Tribunal is of the view—

(a)that a ground for review has been made out; and

(b)that it would assist the Tribunal to obtain information or material under this subsection in order to determine whether a materially preferable NEO decision exists,

the Tribunal may, on its own initiative, take steps to obtain that information or material (including by seeking evidence from such persons as it thinks fit).

(5b)The action taken by a person acting in response to steps taken by the Tribunal under subsection (5a) must be limited to considering decision related matter under section 28ZJ.

(6)In this section—

review related matter means—

(a)the application for review; and

(b)a notice raising new grounds for review filed by an intervener; and

(c)the submissions made to the Tribunal by the parties to the review; and

(d)decision related matter under section 28ZJ; and

(e)any other matter properly before the Tribunal in connection with the relevant proceedings.

s 71R ins 2007 No. 53 (SA) s 46

amd 2013 No. 79 (SA) s 14

div hdg ins 2007 No. 53 (SA) s 46

amd 2009 No. 31 (SA) s 23

71SApplication for review

(1)A person whose interests are adversely affected by an information disclosure decision may apply to the Tribunal for a review of the decision.

(2)An application must be made in the form and manner determined by the Tribunal.

(3)An application may only be made on the ground that—

(a)the decision was not made in accordance with law; or

(b)the decision is unreasonable having regard to all relevant circumstances.

(4)The person must lodge the application with the Tribunal no later than 5 business days after the date of the last notice given under section 28ZB or section 54H (as the case requires).

(5)An application under this section stays the operation of the decision until the earlier of—

(a)20 business days; or

(b)the making of a determination by the Tribunal in respect of the application.

s 71S ins 2007 No. 53 (SA) s 46

amd 2009 No. 31 (SA) s 24

71TExclusion 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.

s 71T ins 2007 No. 53 (SA) s 46

71UDetermination 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).

s 71U ins 2007 No. 53 (SA) s 46

amd 2009 No. 31 (SA) s 25

71VTribunal 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.

s 71V ins 2007 No. 53 (SA) s 46

amd 2009 No. 31 (SA) s 26

71WAssistance 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.

s 71W ins 2007 No. 53 (SA) s 46

sub 2009 No. 31 (SA) s 27

div hdg ins 2007 No. 53 (SA) s 46

71XCosts in a review

(1)Subject to this section, the Tribunal may order that a party to a review under this Division pay all or a specified part of the costs of another party to the review.

(2)The Tribunal must not make an order requiring the AER or a small/medium user or consumer intervener to pay the costs of another party to the review unless the Tribunal considers that the AER or intervener has conducted their case in the review without due regard to—

(a)the costs that would have to be incurred by another party to the review as a result of that conduct; or

(b)the time required by—

(i)the Tribunal to hear the review as a result of that conduct; or

(ii)another party to prepare their case as a result of that conduct; or

(c)in the case of an order relating to the AER—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.

s 71X ins 2007 No. 53 (SA) s 46

amd 2013 No. 79 (SA) s 15

71YAmount of costs

(1)If the Tribunal makes an order for costs in a review under this Division other than an order for costs against a small/medium user or consumer intervener, 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.

(2)If the Tribunal makes an order for costs against a small/medium user or consumer intervener in favour of another party in a review under this Division, the order must be limited to the payment of the reasonable administrative costs (as determined by the Tribunal) of that other party.

s 71Y ins 2007 No. 53 (SA) s 46

amd 2013 No. 79 (SA) s 16

71YACosts not to be passed on

(1)This section applies to any expenditure or cost that a network service provider incurs, or is forecast to incur, as a result of or incidental to a review under this Division, including costs awarded under section 71X.

(2)A network service provider—

(a)must not, for the purposes of a network revenue or pricing determination, include as part of its capital expenditure or operating expenditure any expenditure or cost to which this section applies; and

(b)must not recover from end users or seek a pass through of any expenditure or cost to which this section applies.

(3)This section applies despite any provision to the contrary in this Law, the Rules or a network revenue or pricing determination (and this section prevails to the extent of any inconsistency between such a provision and this section).

s 71YA ins 2013 No. 79 (SA) s 17

71ZReview of Division

(1)The MCE must initiate a review of the Tribunal’s role under this Division by 1 December 2016.

(1a)The review will be undertaken 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.

s 71Z ins 2007 No. 53 (SA) s 46

amd 2013 No. 79 (SA) s 18

div 3B (ss 71ZA–71ZF) ins 2007 No. 53 (SA) s 46

71ZAEnforcement 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.

div 3B (ss 71ZA–71ZF) ins 2007 No. 53 (SA) s 46

71ZBConsent injunctions

On an application for an injunction under section 71ZA, the Court may grant an injunction by consent of all of the parties to the proceedings, whether or not the Court is satisfied that the section applies.

div 3B (ss 71ZA–71ZF) ins 2007 No. 53 (SA) s 46

71ZCInterim injunctions

The Court may grant an interim injunction pending determination of an application under section 71ZA.

div 3B (ss 71ZA–71ZF) ins 2007 No. 53 (SA) s 46

71ZDFactors 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.

div 3B (ss 71ZA–71ZF) ins 2007 No. 53 (SA) s 46

71ZEFactors 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.

div 3B (ss 71ZA–71ZF) ins 2007 No. 53 (SA) s 46

71ZFDischarge or variation of injunction or other order

The Court may discharge or vary an injunction or order granted under this Division.

div 3B (ss 71ZA–71ZF) ins 2007 No. 53 (SA) s 46

72Obligations 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.

s 72 amd 2009 No. 31 (SA) s 28

73Definition

In this Division—

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

74Power to serve a notice

(1)Subject to this section, the AER may serve an infringement notice on a person that it has reason to believe has breached a relevant civil penalty provision.

(1a)The AER must, however, serve an infringement notice not later than 12 months after the date on which the AER forms a belief that there has been a breach of a civil penalty provision.

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

(a)if the person is a natural person—

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

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

(b)if the person is a body corporate—

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

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

s 74 amd 2007 No. 53 (SA) s 47; 2011 No. 7 (SA) s 37

75Form of notice

An infringement notice must state—

(a)the date of the notice;

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

(c)the nature, and a brief description, of the alleged breach;

(d)the date, time and place of the alleged breach;

(e)the infringement penalty for the alleged breach;

(f)the manner in which the infringement penalty may be paid;

(g)the time (being not less than 28 days after the date on which the notice is served) within which the infringement penalty must be paid;

(h)that, if the amount of the infringement penalty is paid before the end of the time specified in the notice, proceedings will not be instituted in respect of the alleged breach by the AER unless the notice is withdrawn before the end of that time in accordance with section 79;

(i)that the person is entitled to disregard the notice and defend any proceedings in respect of the relevant civil penalty provision;

(j)any other particulars prescribed by the Regulations.

s 75 amd 2011 No. 7 (SA) s 38

76Infringement penalty

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

(a)if the breach is alleged to have been committed by a natural person—$4000 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.

77AER 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.

78Late payment of penalty

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

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

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

79Withdrawal of notice

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

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

(a)if the person is a natural person—

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

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

(b)if the person is a body corporate—

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

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

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

s 79 amd 2011 No. 7 (SA) s 39

80Refund 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.

81Payment expiates breach of civil penalty provision

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

(a)the infringement penalty is—

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

(ii)not withdrawn by the AER within the time for payment stated in the notice in accordance with section 79; or

(b)the infringement penalty is accepted in accordance with section 78.

s 81 amd 2007 No. 53 (SA) s 48; 2011 No. 7 (SA) s 40

82Payment 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.

83Conduct in breach of more than one civil penalty provision

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

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

Note—

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

s 83 amd 2011 No. 7 (SA) s 41

85Offences 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.

s 85 amd 2007 No. 53 (SA) s 50

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

If an officer or employee of a corporation commits an act in their capacity as officer or employee of the corporation that would, if that act were committed by the corporation, constitute a breach of a provision of this Law, the Regulations or the Rules, the corporation is taken to have contravened that provision.

s 86 amd 2007 No. 53 (SA) s 51

sub 2011 No. 7 (SA) s 42

sdiv hdg ins 2007 No. 53 (SA) s 52

87Definitions

In this Part—

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

def AEMC initiated Rule ins 2007 No. 53 (SA) s 53(2)

AEMC Rule review means a review conducted by the AEMC under Division 5 of Part 4;

def AEMC Rule review ins 2007 No. 53 (SA) s 53(2)

electricity market regulatory body means—

(a)the AER;

(b)AEMO;

(c)the Reliability Panel;

def electricity market regulatory body ins 2007 No. 53 (SA) s 53(2)

amd 2009 No. 31 (SA) s 29

interested person or body ...

def interested person or body om 2007 No. 53 (SA) s 53(1)

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;

def market initiated proposed Rule ins 2007 No. 53 (SA) s 53(2)

more preferable Rule has the meaning given by section 91A;

def more preferable Rule ins 2007 No. 53 (SA) s 53(2)

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;

def proposed Rule ins 2007 No. 53 (SA) s 53(3)

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;

def publish amd 2007 No. 53 (SA) s 53(4)–(5)

urgent rule ...

def urgent rule amd 2009 No. 31 (SA) s 29

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.

div hdg ins 2007 No. 53 (SA) s 54

88Application 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.

s 88 sub 2007 No. 53 (SA) s 54

88AAEMC 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.

s 88A ins 2007 No. 53 (SA) s 54

88BAEMC 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.

s 88B ins 2007 No. 53 (SA) s 54

89AEMC 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.

div hdg sub 2007 No. 53 (SA) s 55

90South 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.

90ASouth 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.

s 90A ins 2007 No. 53 (SA) s 56

90BSouth 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.

s 90B ins 2009 No. 31 (SA) s 30

90CSouth Australian Minister to make initial Rules related to smart meters