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This is a Bill, not an Act. For current law, see the Acts databases.
New South Wales
National Energy Retail Law (Adoption)
Bill 2012
Explanatory note
This explanatory note relates to this Bill as introduced into Parliament.
The Energy Legislation Amendment (National Energy Retail Law) Bill 2012 is
cognate with this Bill.
Overview of Bill
The object of this Bill is to apply as a law of this State the National Energy Retail
aw which is contained in a Schedule to the National Energy Retail Law (South
Australia) Act 2011 of South Australia. The enactment of this Bill is part of a uniform
scheme of legislation applying that Law (which relates to the supply of energy to
customers by retailers and distributors) in the States and the Australian Capital
Territory (participating jurisdictions).
The National Energy Retail Law scheme provides for the following matters:
(a) the regulation of the supply of energy by retailers to customers,
(b) the provision of information about contractual and pricing options for energy
supply,
(c) the authorisation of retailers to supply energy,
(d) the regulation of contracts relating to the provision of connection services by
energy distributors,
b2010-122-07.d18
National Energy Retail Law (Adoption) Bill 2012
Explanatory note
(e) an exempt seller and a retailer of last resort scheme,
(f) small compensation claims,
(g) rules and regulations for the further implementation of the scheme,
(h) compliance and enforcement of the scheme.
National regulations supporting the National Energy Retail Law are to be made by
the Governor of South Australia and are to be adopted by each participating
jurisdiction. National Energy Retail Rules are to be made under the National Energy
Retail Law and will apply in the participating jurisdictions. The National Energy
Retail Law provides for specified enforcement, licensing and other functions to be
carried out by the Australian Energy Market Commission and the Australian
Competition Tribunal and the Australian Energy Regulator (the AER) rather than by
State-based agencies.
The National Energy Retail Law, as applied by this Bill in New South Wales, will
replace provisions of the Electricity Supply Act 1995 and the Gas Supply Act 1996,
and instruments made under those Acts, that currently regulate retail suppliers of
energy and connections to distribution networks for energy.
Outline of provisions
Part 1 Preliminary
Clause 1 sets out the name (also called the short title) of the proposed Act.
Clause 2 provides for the commencement of the proposed Act on a day or days to be
appointed by proclamation. Different days may be appointed for the commencement
of different provisions of the National Energy Retail Law.
Clause 3 defines certain words and expressions used in the proposed Act.
Part 2 Application of National Energy Retail Law
Clause 4 applies the National Energy Retail Law as a law of this jurisdiction, to be
called the National Energy Retail Law (NSW), with the modifications set out in
Schedule 1 to the proposed Act.
Clause 5 applies the National Energy Retail Regulations as regulations in force for
the purposes of the National Energy Retail Law (NSW), with the modifications
prescribed by regulations made under the proposed Act.
Clause 6 defines certain words and expressions used in the National Energy Retail
aw (NSW).
Clause 7 excludes the operation of the Interpretation Act 1987 and the Subordinate
egislation Act 1989, and South Australian interpretation legislation, from applying
to the applied provisions and instruments made under the applied provisions. This
does not affect local regulations made under the proposed Act.
Explanatory note page 2
National Energy Retail Law (Adoption) Bill 2012
Explanatory note
Part 3 Related matters
Clause 8 confers functions and powers in this jurisdiction on a Commonwealth body
if they are conferred under the national energy retail legislation of another
jurisdiction.
Clause 9 extends to the proposed Act the provision of the National Energy Retail
aw that reads down provisions so as to save their validity.
Clause 10 saves instruments or decisions made by the AER before the
commencement of the National Energy Retail Law (NSW) in preparation for that
commencement that would have been valid if made on or after that commencement.
Clause 11 saves actions done by the AER before the commencement of the National
Energy Retail Law (NSW) in preparation for that commencement that would have
been valid if made on or after that commencement.
Part 4 Miscellaneous
Clause 12 enables the Governor to make regulations for the purposes of the
proposed Act. In particular, the regulations may amend the Schedule of
modifications to the National Energy Retail Law and modify the National Energy
Retail Regulations and the operation of the National Energy Retail Rules for the
purposes of this jurisdiction.
Clause 13 enables regulations containing provisions of a savings or transitional
nature to be made consequent on the enactment of the proposed Act and its cognate
Act.
Clause 14 authorises the Independent Pricing and Regulatory Tribunal to provide
the AER with information and assistance for the purposes of the National Energy
Retail Law (NSW).
Schedule 1 New South Wales changes and additions
to National Energy Retail Law
Schedule 1 contains amendments to the National Energy Retail Law for the purposes
of its application in New South Wales. The Schedule modifies that Law as follows:
(a) the consumption threshold for determining who is to be treated as a small
customer under that Law (and therefore subject to additional protections) is to
be determined under local regulations,
(b) the Law is only to apply to customers whose premises are connected, or are to
be connected, to the interconnected national electricity system under the Law
and local regulations may provide for exemptions from any or all provisions
of the Law,
(c) a new category of regulated offer customer, being a customer who is entitled
to be offered electricity at the prices determined or agreed by IPART for
electricity and gas (regulated offer prices) and in accordance with a standard
Explanatory note page 3
National Energy Retail Law (Adoption) Bill 2012
Explanatory note
retail contract, is to be created in tandem with the category of small customer
(entitled to retailers' standing offer prices) established by that Law,
(d) price comparator and pricing information guidelines under that Law are to
apply in respect of regulated offer prices and those prices are to be used in
determining prices charged by retailers of last resort,
(e) provisions relating to small market offer customers and to the small
compensation claims regime will not apply in New South Wales,
(f) the AER will have power to monitor compliance by retailers and exempt
sellers with decisions of the energy ombudsman under New South Wales
energy legislation,
(g) distributors will be able to vary the limitations on their liability for failure to
supply energy under contracts with small customers in accordance with the
regulations.
Explanatory note page 4
First print
New South Wales
National Energy Retail Law (Adoption)
Bill 2012
Contents
Page
Part 1 Preliminary
1 Name of Act 2
2 Commencement 2
3 Interpretation 2
Part 2 Application of National Energy Retail Law
4 Application of National Energy Retail Law 3
5 Application of regulations under National Energy Retail
Law 3
6 Interpretation of certain expressions 3
7 Exclusion of legislation of this jurisdiction and South
Australia 3
b2010-122-07.d18
National Energy Retail Law (Adoption) Bill 2012
Contents
Page
Part 3 Related matters
8 Conferral of functions and powers on Commonwealth
bodies to act in this jurisdiction 5
9 Extension of reading-down provision 5
10 Validation of instruments and decisions made by Australian
Energy Regulator 5
11 Australian Energy Regulator--authorisation of preparatory
steps 6
Part 4 Miscellaneous
12 Regulations 7
13 Savings and transitional regulations 7
14 Provision of information by IPART 8
Schedule 1 New South Wales changes and additions
to National Energy Retail Law 9
Note National Energy Retail Law 18
Contents page 2
New South Wales
National Energy Retail Law (Adoption)
Bill 2012
No , 2012
A Bill for
An Act to establish a national energy customer framework for the regulation of the
retail supply of energy to customers; to make provision for the relationship between
the distributors of energy and the consumers of energy; and for other purposes.
See also Energy Legislation Amendment (National Energy Retail Law) Bill 2012
Clause 1 National Energy Retail Law (Adoption) Bill 2012
Part 1 Preliminary
The Legislature of New South Wales enacts: 1
Part 1 Preliminary 2
1 Name of Act 3
This Act is the National Energy Retail Law (Adoption) Act 2012. 4
2 Commencement 5
(1) This Act commences on a day or days to be appointed by proclamation. 6
(2) Different days may be appointed under subsection (1) for the 7
commencement of different provisions of the National Energy Retail 8
Law set out in the Schedule to the South Australian Act. 9
3 Interpretation 10
(1) In this Act: 11
National Energy Retail Law (NSW) means the provisions applying in 12
this jurisdiction because of section 4. 13
National Energy Retail Regulations (NSW) means the provisions 14
applying in this jurisdiction because of section 5. 15
South Australian Act means the National Energy Retail Law (South 16
Australia) Act 2011 of South Australia. 17
(2) Terms used in this Act and also in the National Energy Retail Law set 18
out in the Schedule to the South Australian Act have the same meanings 19
in this Act as they have in that Law. 20
(3) This section does not apply to the extent that the context or 21
subject-matter otherwise indicates or requires. 22
Page 2
National Energy Retail Law (Adoption) Bill 2012 Clause 4
Application of National Energy Retail Law Part 2
Part 2 Application of National Energy Retail Law 1
4 Application of National Energy Retail Law 2
The National Energy Retail Law, as amended from time to time, set out 3
in the Schedule to the South Australian Act: 4
(a) applies as a law of this jurisdiction, with the modifications set out 5
in Schedule 1, and 6
(b) as so applying may be referred to as the National Energy Retail 7
Law (NSW), and 8
(c) so applies as if it were an Act. 9
5 Application of regulations under National Energy Retail Law 10
The regulations, as amended from time to time, under the National 11
Energy Retail Law set out in the Schedule to the South Australian Act: 12
(a) apply as regulations in force for the purposes of the National 13
Energy Retail Law (NSW), subject to modifications prescribed by 14
the regulations under this Act, and 15
(b) as so applying may be referred to as the National Energy Retail 16
Regulations (NSW). 17
6 Interpretation of certain expressions 18
In the National Energy Retail Law (NSW) and the National Energy 19
Retail Regulations (NSW): 20
National Energy Retail Law or this Law means the National Energy 21
Retail Law (NSW). 22
this jurisdiction or the jurisdiction means New South Wales. 23
7 Exclusion of legislation of this jurisdiction and South Australia 24
(1) The following Acts of this jurisdiction do not apply to the National 25
Energy Retail Law (NSW) or to instruments made under that Law: 26
(a) the Interpretation Act 1987, 27
(b) the Subordinate Legislation Act 1989. 28
(2) To avoid doubt, subsection (1) does not apply to a regulation made 29
under section 12 of this Act. 30
Page 3
Clause 7 National Energy Retail Law (Adoption) Bill 2012
Part 2 Application of National Energy Retail Law
(3) The Acts Interpretation Act 1915, and other Acts, of South Australia do 1
not apply to the following: 2
(a) the National Energy Retail Law set out in the Schedule to the 3
South Australian Act in its application as a law of New South 4
Wales, 5
(b) the regulations in force for the time being under the National 6
Energy Retail Law set out in the Schedule to the South Australian 7
Act in their application as regulations in force for the purposes of 8
the National Energy Retail Law (NSW). 9
Page 4
National Energy Retail Law (Adoption) Bill 2012 Clause 8
Related matters Part 3
Part 3 Related matters 1
8 Conferral of functions and powers on Commonwealth bodies to act in 2
this jurisdiction 3
(1) A Commonwealth body has power to do acts in or in relation to this 4
State in the performance or exercise of a function or power expressed to 5
be conferred on the Commonwealth body by the national energy retail 6
legislation of another participating jurisdiction. 7
(2) In this section: 8
Commonwealth body means: 9
(a) the AER, or 10
(b) the Tribunal. 11
9 Extension of reading-down provision 12
(1) Section 320 of the National Energy Retail Law (NSW) has effect in 13
relation to the operation of any provision of this Act as if the provision 14
formed part of that Law. 15
(2) Subsection (1) does not limit the effect that a provision would validly 16
have apart from the subsection. 17
10 Validation of instruments and decisions made by Australian Energy 18
Regulator 19
(1) This section applies to an instrument or a decision made by the AER if: 20
(a) the instrument or decision was made: 21
(i) at or after the time that the South Australian Act was 22
enacted, but 23
(ii) before the time (the application time) that the National 24
Energy Retail Law set out in the Schedule to the South 25
Australian Act first started to apply under this Act as a law 26
of New South Wales, and 27
(b) had the National Energy Retail Law started so to apply, the 28
making of the instrument or decision would have been authorised 29
by one of the following laws (the authorising laws): 30
(i) the National Energy Retail Law (NSW) or the National 31
Energy Retail Regulations (NSW), 32
(ii) this Act, 33
(iii) an instrument made or having effect under this Act, and 34
(c) in a case in which the making of the instrument or decision would 35
be so authorised subject to the satisfaction of any conditions or 36
other requirements (for example, consultation or publication 37
Page 5
Clause 11 National Energy Retail Law (Adoption) Bill 2012
Part 3 Related matters
requirements)--the AER has done anything that would, if the 1
National Energy Retail Law had started so to apply, be required 2
under the authorising law for the instrument or decision to be so 3
authorised. 4
(2) For the purposes of the authorising law: 5
(a) the instrument or decision is taken to be valid, and 6
(b) the instrument or decision has effect from the application time: 7
(i) as varied, and unless revoked, by any other instrument or 8
decision to which this section applies, and 9
(ii) subject to that law so applying. 10
(3) For the purposes of this section: 11
(a) guidelines are an example of an instrument, and 12
(b) the following are examples of decisions: 13
(i) appointments, 14
(ii) determinations, 15
(iii) approvals. 16
11 Australian Energy Regulator--authorisation of preparatory steps 17
(1) This section applies if: 18
(a) the AER is required to do something (a preparatory step) before 19
making a decision or making an instrument under the National 20
Energy Retail Law (NSW), or this Act, or an instrument made or 21
having effect under this Act (the authorising law), and 22
(b) the AER takes the preparatory step: 23
(i) at or after the time that the South Australian Act was 24
enacted, but 25
(ii) before the time that the National Energy Retail Law set out 26
in the Schedule to the South Australian Act first started to 27
apply under this Act as a law of New South Wales. 28
(2) For the purposes of the authorising law, the AER is taken to have 29
complied with the requirement to take the preparatory step. 30
Page 6
National Energy Retail Law (Adoption) Bill 2012 Clause 12
Miscellaneous Part 4
Part 4 Miscellaneous 1
12 Regulations 2
(1) The Governor may make regulations, not inconsistent with this Act, for 3
or with respect to any matter that by this Act is required or permitted to 4
be prescribed or that is necessary or convenient to be prescribed for 5
carrying out or giving effect to this Act. 6
(2) The regulations may: 7
(a) amend Schedule 1, and 8
(b) prescribe modifications to the regulations, as amended from time 9
to time, under the National Energy Retail Law set out in the 10
Schedule to the South Australian Act for the purposes of 11
section 5 of this Act, and 12
(c) modify the operation of the National Energy Retail Rules, to the 13
extent that they apply as a law of this State. 14
(3) The Governor may make such regulations as are contemplated by the 15
National Energy Retail Law (NSW) as being made under this Act, 16
including regulations constituting local instruments being made under 17
this Act as the application Act of this jurisdiction. 18
(4) Regulations made under this Act may create offences punishable by a 19
penalty not exceeding 100 penalty units. 20
(5) An offence created by a regulation made under this Act is a summary 21
offence. 22
13 Savings and transitional regulations 23
(1) The regulations may contain provisions of a savings or transitional 24
nature consequent on the enactment of the following Acts: 25
this Act and any Act that amends this Act 26
Energy Legislation Amendment (National Energy Retail Law) Act 2012 27
(2) Any such provision may, if the regulations so provide, take effect from 28
the date of assent to the Act concerned or a later date. 29
(3) To the extent to which any such provision takes effect from a date that 30
is earlier than the date of its publication on the NSW legislation website, 31
the provision does not operate so as: 32
(a) to affect, in a manner prejudicial to any person (other than the 33
State or an authority of the State), the rights of that person 34
existing before the date of its publication, or 35
Page 7
Clause 14 National Energy Retail Law (Adoption) Bill 2012
Part 4 Miscellaneous
(b) to impose liabilities on any person (other than the State or an 1
authority of the State) in respect of anything done or omitted to 2
be done before the date of its publication. 3
14 Provision of information by IPART 4
(1) The Independent Pricing and Regulatory Tribunal (IPART) is 5
authorised, on its own initiative or at the request of the AER: 6
(a) to provide the AER with such information (including information 7
given in confidence) in the possession or control of IPART that 8
is reasonably required by the AER for the purposes of this Act or 9
the National Energy Retail Law (NSW), and 10
(b) to provide the AER with such other assistance as is reasonably 11
required by the AER to perform or exercise a function or power 12
under this Act or the National Energy Retail Law (NSW). 13
(2) IPART may authorise the AER to disclose information provided under 14
this section even if the information was given to IPART in confidence. 15
(3) Nothing done or authorised to be done by IPART in acting under this 16
section: 17
(a) constitutes a breach of, or default under, an Act or other law, or 18
(b) constitutes a breach of, or default under, a contract, agreement, 19
understanding or undertaking, or 20
(c) constitutes a breach of duty of confidence (whether arising by 21
contract, in equity or by custom or in any other way), or 22
(d) constitutes a civil or criminal wrong, or 23
(e) terminates an agreement or obligation or fulfils any condition that 24
allows a person to terminate an agreement or obligation, or gives 25
rise to any other right or remedy, or 26
(f) releases a surety or any other obligee wholly or in part from an 27
obligation. 28
Page 8
National Energy Retail Law (Adoption) Bill 2012
New South Wales changes and additions to National Energy Retail Law Schedule 1
Schedule 1 New South Wales changes and additions 1
to National Energy Retail Law 2
[1] Section 2 Interpretation 3
Insert "and section 63A" after "section 61" in the definition of AER Retail 4
Pricing Information Guidelines in section 2 (1). 5
[2] Section 2 (1), definition of "customer retail contract" 6
Insert "(including a regulated offer customer)" after "small customer". 7
[3] Section 2 (1), definition of "lower consumption threshold", note 8
Omit "National Regulations". Insert instead "NSW regulations". 9
[4] Section 2 (1) 10
Insert in alphabetical order: 11
NSW regulations means regulations made under the National 12
Energy Retail Law (Adoption) Act 2012; 13
Note--
This definition is an additional New South Wales provision. 14
[5] Section 2 (1), definition of "price comparator" 15
Insert "and section 63A" after "section 62". 16
[6] Section 2 (1), definitions of "regulated offer", "regulated offer contract", 17
"regulated offer customer", "regulated offer price" and "regulated offer 18
retailer" 19
Insert in alphabetical order: 20
regulated offer--see section 37C (1); 21
Note--
This definition is an additional New South Wales provision. 22
regulated offer contract--see section 37C (10); 23
Note--
This definition is an additional New South Wales provision. 24
regulated offer customer--see section 37B; 25
Note--
This definition is an additional New South Wales provision. 26
regulated offer price--see section 37C (2); 27
Note--
This definition is an additional New South Wales provision. 28
regulated offer retailer--see section 37A; 29
Note--
This definition is an additional New South Wales provision. 30
Page 9
National Energy Retail Law (Adoption) Bill 2012
Schedule 1 New South Wales changes and additions to National Energy Retail Law
[7] Section 2 (1) 1
Omit the definition of small market offer customer. Insert instead: 2
small market offer customer 3
Note--
This definition is not applicable in New South Wales. 4
[8] Section 2 (1), definition of "standard retail contract" 5
Omit the definition. Insert instead: 6
standard retail contract means a customer retail contract that 7
takes effect under-- 8
(a) section 26 as a contract between a small customer and a 9
designated retailer; or 10
(b) section 26 (as applied by section 37C) between a regulated 11
offer customer and a regulated offer retailer; 12
Note--
This definition is a substituted New South Wales provision. 13
[9] Section 2 (3) 14
Insert ", a regulated offer customer" after "small customer". 15
[10] Section 2 (6A) 16
Insert after section 2 (6): 17
(6A) To avoid doubt, a provision of this Law that applies to a small 18
customer also applies to a regulated offer customer who meets 19
the requirements of section 5 (2) for a small customer. 20
Note--
This subsection is an additional New South Wales provision. 21
[11] Sections 3A and 3B 22
Insert after section 3: 23
3A--Application of Law to sale of electricity 24
Insofar as this Law applies to electricity, this Law, subject to the 25
NSW regulations, applies only in relation to the sale of electricity 26
to customers whose premises are connected, or are to be 27
connected, to the interconnected national electricity system 28
within the meaning of the NEL. 29
Note--
This section is an additional New South Wales provision. 30
Page 10
National Energy Retail Law (Adoption) Bill 2012
New South Wales changes and additions to National Energy Retail Law Schedule 1
3B--Exemptions from Law 1
(1) The NSW regulations may exempt, or provide for the exemption 2
of, any area or person from any or all of the provisions of this 3
Law. 4
(2) An exemption under this section may be made subject to 5
conditions. 6
Note--
This section is an additional New South Wales provision. 7
[12] Section 4 (1), note 8
Insert at the end of section 4 (1): 9
Note--
Section 37C (1) and (5) are also civil penalty provisions (see 10
section 37D (1)). 11
[13] Section 5 (4) 12
Omit the subsection. Insert instead: 13
(4)
Note--
This subsection is not applicable in New South Wales. 14
[14] Section 6 Provisions relating to consumption thresholds for business 15
customers 16
Omit "National Regulations" wherever occurring in section 6 (2) and (4) (a). 17
Insert instead "NSW regulations". 18
[15] Section 20 Kinds of customer retail contracts 19
Insert "or regulated offer customers" after "small customers" in section 20 (2). 20
[16] Section 31 21
Omit the section. Insert instead: 22
31
Note--
This section is not applicable in New South Wales. 23
Page 11
National Energy Retail Law (Adoption) Bill 2012
Schedule 1 New South Wales changes and additions to National Energy Retail Law
[17] Part 2, Division 4A 1
Insert after Division 4: 2
Division 4A--Regulated offers for regulated offer customers 3
Note--
The provisions of this Division are additional New South Wales provisions. 4
37A--Nomination of regulated offer retailers 5
(1) The NSW regulations must nominate a retailer as a regulated 6
offer retailer (a regulated offer retailer) for the purposes of this 7
Law. 8
(2) One or more retailers may be nominated. 9
(3) A nomination may be made for customers within the whole or a 10
part of New South Wales and may relate to electricity or gas, or 11
both. 12
37B--Meaning of "regulated offer customer" 13
A regulated offer customer is a customer-- 14
(a) who consumes or is expected to consume energy at 15
premises at a rate that is less than the consumption 16
threshold prescribed by the NSW regulations; or 17
(b) who consumes or is expected to consume energy at 18
premises used for a purpose prescribed by the NSW 19
regulations; or 20
(c) who is treated in accordance with any relevant provisions 21
of the NSW regulations as a regulated offer customer. 22
37C--Obligations of retailers relating to regulated offers 23
(1) A regulated offer retailer for a regulated offer customer must 24
make an offer (a regulated offer) to the customer to provide 25
customer retail services-- 26
(a) at the regulated offer prices; and 27
(b) under the retailer's form of standard retail contract. 28
(2) The regulated offer prices are the prices imposed by a regulated 29
offer retailer in accordance with-- 30
(a) any relevant determination of the Independent Pricing and 31
Regulatory Tribunal under Division 5 of Part 4 of the 32
Electricity Supply Act 1995; or 33
Page 12
National Energy Retail Law (Adoption) Bill 2012
New South Wales changes and additions to National Energy Retail Law Schedule 1
(b) any gas pricing order under Division 3 of Part 2 of the Gas 1
Supply Act 1996 or any voluntary transitional pricing 2
arrangement for gas agreed between the Independent 3
Pricing and Regulatory Tribunal and the regulated offer 4
retailer. 5
(3) A designated retailer (other than the regulated offer retailer) for a 6
small customer must, if the customer requests the supply of 7
energy under the retailer's standing offer, inform the customer of 8
the customer's right to receive a regulated offer under this section 9
and provide information about where to obtain particulars of the 10
regulated offer retailer. 11
(4) A regulated offer retailer must-- 12
(a) present its regulated offer prices (including any variation 13
of those prices) in accordance with the AER Retail Pricing 14
Information Guidelines; and 15
(b) without limitation, present those prices in accordance with 16
those guidelines when publishing, advertising or notifying 17
the AER of those prices or any variation. 18
(5) A regulated offer retailer must publish the terms and conditions 19
of the retailer's regulated offer prices on the retailer's website. 20
(6) A regulated offer retailer must comply with the terms and 21
conditions of the retailer's regulated offer. 22
(7) A regulated offer retailer is not obliged to make a regulated offer 23
to a regulated offer customer if the customer's premises are not, 24
or are not proposed to be, connected to a distributor's distribution 25
system. 26
(8) The NSW regulations may apply (with or without modifications) 27
to the provision of customer retail services by regulated offer 28
retailers provisions of the Rules relating to the provision of 29
customer retail services by designated retailers and to standard 30
retail contracts of designated retailers. 31
(9) If a designated retailer for a customer is also the regulated offer 32
retailer for the customer, the retailer must make an offer under 33
this section and also an offer under section 22 (in the capacity of 34
the designated retailer) if the retailer's standing offer prices differ 35
from its regulated offer prices. However, the retailer is not 36
required to make an offer under section 22 if the prices are the 37
same. 38
(10) Sections 26, 27 and 30 apply to a standard retail contract between 39
a regulated offer retailer and a regulated offer customer based on 40
a regulated offer (a regulated offer contract) in the same way as 41
Page 13
National Energy Retail Law (Adoption) Bill 2012
Schedule 1 New South Wales changes and additions to National Energy Retail Law
they apply to a standard retail contract between a designated 1
retailer and a small customer based on a standing offer. 2
(11) A regulated offer retailer may alter the standard retail contract 3
specified under this Law to make any modifications necessary to 4
reflect the regulated offer and regulated offer prices. Any such 5
alteration is taken to be a required alteration. 6
37D--Enforcement of regulated offer provisions 7
(1) Section 37C (1) and (5) are civil penalty provisions for the 8
purposes of this Law. 9
(2) The functions and powers of the AER under section 204 in 10
relation to regulated offer prices do not extend to monitoring and 11
enforcing the compliance of regulated offer retailers with their 12
obligations to provide energy at regulated offer prices under 13
section 37C. 14
[18] Section 54 Deemed customer retail arrangement for new or continuing 15
customer without customer retail contract 16
Insert after section 54 (6): 17
(6A) As soon as practicable after becoming aware that a regulated 18
offer customer is consuming energy under a deemed customer 19
retail arrangement, the financially responsible retailer for the 20
premises must advise the customer of the customer's right to 21
receive a regulated offer and (if the retailer is not the regulated 22
offer retailer) provide information about where to obtain 23
particulars of the regulated offer retailer. 24
Note--
This subsection is an additional New South Wales provision. 25
[19] Section 55 Terms and conditions of deemed customer retail 26
arrangements 27
Insert after section 55 (2): 28
(2A) Despite subsection (2), the prices applicable to a deemed 29
customer retail arrangement are the regulated offer prices if the 30
retailer is also the customer's regulated offer retailer and the 31
retailer's standing offer prices differ from its regulated offer 32
prices. 33
Note--
This subsection is an additional New South Wales provision. 34
Page 14
National Energy Retail Law (Adoption) Bill 2012
New South Wales changes and additions to National Energy Retail Law Schedule 1
[20] Section 63A 1
Insert after section 63: 2
63A--Application of Pricing Information Guidelines and price 3
comparator 4
(1) The AER Retail Pricing Information Guidelines may specify any 5
or all of the following-- 6
(a) the manner and form in which details of regulated offer 7
prices are to be presented when publishing, advertising or 8
notifying the AER of those prices or any variation; 9
(b) any additional matters the AER considers necessary or 10
convenient to assist customers to consider and compare 11
regulated offer prices and other prices offered by retailers. 12
(2) The purpose of a price comparator under section 62 is also to 13
assist a regulated offer customer to compare the regulated offer 14
price available to the customer and other prices that are generally 15
available to classes of small customers in this jurisdiction. 16
(3) Section 62 (7)-(9) apply to information about regulated offer 17
prices in the same way as they apply to information about 18
standing offer prices. 19
(4) Section 63 applies in relation to the provision of information and 20
data by a regulated offer retailer about regulated offer prices in 21
the same way as it applies in relation to the provision of 22
information and data by a retailer about standing offer prices. 23
[21] Section 79 Definitions 24
Insert after paragraph (a) (iii) of the definition of relevant matter in 25
section 79 (1): 26
(iiia) a customer retail contract between a regulated 27
offer customer and a regulated offer retailer; 28
[22] Section 112A 29
Insert after section 112: 30
112A--Conditions imposed on exempt sellers relating to regulated offer 31
prices 32
(1) In any case in which the AER imposes a condition on an exempt 33
seller that requires the exempt seller to sell electricity at standing 34
offer prices, the AER must also impose a condition that requires 35
the exempt seller to sell electricity for the price that is the lesser 36
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National Energy Retail Law (Adoption) Bill 2012
Schedule 1 New South Wales changes and additions to National Energy Retail Law
of the standing offer price of the applicable designated retailer or 1
the regulated offer price of the applicable regulated offer retailer. 2
(2) A condition imposed under this section is taken to be a condition 3
imposed under section 112. 4
Notes-- 5
1 There is a civil penalty for a breach of such a condition. 6
2 This section is an additional New South Wales provision. 7
[23] Section 145 Contractual arrangements for sale of energy to transferred 8
small customers 9
Omit section 145 (4). Insert instead: 10
(4) The prices applicable to the RoLR deemed small customer retail 11
arrangement are the regulated offer prices of the applicable 12
regulated offer retailer, with any variations in accordance with or 13
consequent on the applicable RoLR cost recovery scheme 14
determined under Division 9. 15
Note--
This subsection is a substituted New South Wales provision. 16
[24] Part 7 17
Omit the Part. Insert instead: 18
Part 7
Note--
This Part is not applicable in New South Wales. 19
[25] Section 204A 20
Insert after section 204: 21
204A--Additional function of AER relating to energy ombudsman 22
The AER also has the function of monitoring compliance by 23
retailers and exempt sellers with the provisions of the Electricity 24
Supply Act 1995 of New South Wales, and regulations under that 25
Act, relating to compliance with the decisions of the energy 26
ombudsman. 27
Note--
This section is an additional New South Wales provision. 28
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National Energy Retail Law (Adoption) Bill 2012
New South Wales changes and additions to National Energy Retail Law Schedule 1
[26] Section 316A 1
Insert after section 316: 2
316A--Additional provisions relating to immunity of distributors 3
(1) A distributor may enter into an agreement with a small customer 4
varying or excluding the operation of section 316 (1) and, to the 5
extent of that agreement, that subsection does not apply. 6
(2) A distributor may include in a proposed standard connection 7
contract prepared under section 75 a condition that varies or 8
excludes the operation of section 316 (1). Any such condition is 9
taken to be fair and reasonable for the purposes of section 75. 10
(3) The NSW regulations-- 11
(a) may prescribe requirements for an agreement entered into 12
under subsection (1) with a small customer or a condition 13
of a contract referred to in subsection (2); and 14
(b) may exclude acts or omissions, or classes of acts or 15
omissions, from the matters that may be covered by an 16
agreement entered into under subsection (1) with a small 17
customer or a condition of a contract referred to in 18
subsection (2). 19
Note--
This section is an additional New South Wales provision. 20
Page 17
National Energy Retail Law (Adoption) Bill 2012
Note National Energy Retail Law
Note National Energy Retail Law 1
Note. The text of the National Energy Retail Law set out in the Schedule to the National 2
Energy Retail Law (South Australia) Act 2011 of South Australia (as proposed to be amended 3
by the National Energy Retail Law (South Australia) (Implementation) Amendment Bill 2012 of 4
South Australia) is set out below. The Law (as in force from time to time) is applied as a law of 5
New South Wales. 6
Part 1 Preliminary 7
Division 1 Citation and interpretation 8
1 Citation 9
This Law may be cited as the National Energy Retail Law. 10
2 Interpretation 11
(1) In this Law-- 12
AEMC means the Australian Energy Market Commission established 13
by section 5 of the Australian Energy Market Commission 14
Establishment Act 2004 of South Australia; 15
AEMO means Australian Energy Market Operator Limited (ACN 072 16
010 327); 17
AER means the Australian Energy Regulator established by section 18
44AE of the Competition and Consumer Act 2010 of the 19
Commonwealth; 20
AER Exempt Selling Guidelines--see section 118; 21
AER exempt selling regulatory function or power means a function or 22
power performed or exercised by the AER under Division 6 or 7 of 23
Part 5 and the Rules relating to exemptions from the requirement to hold 24
a retailer authorisation, including (but not limited to) the following: 25
(a) a decision whether to grant, vary or revoke an individual 26
exemption; 27
(b) a decision whether to impose, vary or revoke conditions on an 28
individual exemption; 29
(c) a decision whether to make, vary or revoke a determination 30
specifying deemed exemptions or registrable exemptions, 31
including any associated conditions; 32
(d) a decision to make or vary the AER Exempt Selling Guidelines; 33
AER regulatory function or power means a function or power 34
performed or exercised by the AER under this Law or the Rules that 35
relates to-- 36
(a) the AER performance regime under Division 2 of Part 12; 37
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National Energy Retail Law (Adoption) Bill 2012
National Energy Retail Law Note
(b) a retailer authorisation under Part 5; 1
(c) an AER exempt selling regulatory function or power; 2
(d) the AER Retail Pricing Information Guidelines and price 3
comparator; 4
(e) approval of deemed AER approved standard connection 5
contracts under Division 5 of Part 3; 6
(f) the RoLR scheme under Part 6; 7
AER Retail Pricing Information Guidelines--see section 61; 8
AER Retailer Authorisation Guidelines--see section 117; 9
application Act means the Act of a jurisdiction that applies the National 10
Energy Retail Law set out in the Schedule to the National Energy Retail 11
Law (South Australia) Act 2011 of South Australia as a law of the 12
jurisdiction; 13
associate of a retailer or distributor includes-- 14
(a) an employee or agent of the retailer or distributor; and 15
(b) a person contracted by the retailer or distributor; and 16
(c) a person who receives or is contracted to receive commissions 17
from the retailer or distributor; 18
business customer means a customer who is not a residential customer; 19
business day means a day that is not: 20
(a) a Saturday or Sunday; or 21
(b) observed as a public holiday on the same day in each of the 22
participating jurisdictions (except the Commonwealth); 23
business premises means premises of a business customer, other than 24
premises used solely or principally for personal, household or domestic 25
use; 26
carry-over customer means a small customer who continues consuming 27
energy at premises after the customer's previously current customer 28
retail contract expires or terminates-- 29
(a) without provision in that contract for the terms and conditions to 30
apply after expiry or termination for the continued provision of 31
those services; and 32
(b) without applying to a retailer for the provision (after that expiry 33
or termination) of those services; 34
Centrepay means the voluntary direct deduction facility operated by 35
Centrelink; 36
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National Energy Retail Law (Adoption) Bill 2012
Note National Energy Retail Law
civil monetary liability means a liability for damages, compensation or 1
any other monetary amount that can be recovered by way of civil 2
proceedings, but does not include-- 3
(a) a liability for a civil penalty; or 4
(b) an infringement penalty under provisions applied by this Law; or 5
(c) a liability for the costs of a proceeding; 6
civil penalty means-- 7
(a) in the case of a breach of a civil penalty provision by a natural 8
person-- 9
(i) an amount not exceeding $20 000; and 10
(ii) an amount not exceeding $2 000 for every day during 11
which the breach continues; or 12
(b) in the case of a breach of a civil penalty provision by a body 13
corporate-- 14
(i) an amount not exceeding $100 000; and 15
(ii) an amount not exceeding $10 000 for every day during 16
which the breach continues; 17
civil penalty provision has the meaning given by section 4(1); 18
Commonwealth Minister means the Minister of the Commonwealth 19
administering the Australian Energy Market Act 2004 of the 20
Commonwealth; 21
conduct provision has the meaning given by section 4(2); 22
connection means a physical link between a distribution system and a 23
customer's premises to allow the flow of energy; 24
connection alteration means an alteration to an existing connection, 25
including an addition, upgrade, extension, expansion, augmentation or 26
any other kind of alteration; 27
Court means-- 28
(a) where this Law applies as a law of the Commonwealth, the 29
Federal Court; 30
(b) where this Law applies as a law of a participating jurisdiction that 31
is a State or a Territory, the Supreme Court of that jurisdiction; 32
customer--see section 5; 33
customer connection contract means a contract between a distributor 34
and a customer of the kind referred to in section 67; 35
customer connection service for premises means any or all of the 36
following: 37
(a) a service relating to a new connection for the premises; 38
(b) a service relating to a connection alteration for the premises; 39
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National Energy Retail Law (Adoption) Bill 2012
National Energy Retail Law Note
(c) a supply service for the premises, including (but not limited to) 1
the energisation, de-energisation or re-energisation of the 2
premises; 3
(d) a service prescribed by the Rules as a customer connection 4
service for the purposes of this definition; 5
customer hardship policy means a customer hardship policy approved 6
under Division 6 of Part 2; 7
customer retail contract means a contract between a small customer 8
and a retailer of a kind referred to in section 20 for the provision of 9
customer retail services for particular premises; 10
customer retail service means the sale of energy by a retailer to a 11
customer at premises; 12
declared wholesale gas market has the same meaning as in the NGL; 13
de-energisation or disconnection of premises means-- 14
(a) in the case of electricity--the opening of a connection; or 15
(b) in the case of gas--the closing of a connection, 16
in order to prevent the flow of energy to the premises; 17
deemed AER approved standard connection contract means a 18
customer connection contract that is taken to be entered into under 19
section 76; 20
deemed customer retail arrangement--see section 54; 21
deemed standard connection contract means a customer connection 22
contract that is taken to be entered into under section 70; 23
delivery point identifier means the meter installation identification as 24
defined under the relevant Retail Market Procedures within the meaning 25
of the NGL and made under the NGR; 26
designated retailer for a small customer's premises means-- 27
(a) in a case where there is no existing connection--the local area 28
retailer for the relevant geographical area, premises or customer 29
(see section 11(3)); or 30
(b) in a case where there is an existing connection (including where 31
a connection alteration to an existing connection is required)-- 32
the financially responsible retailer for the premises; 33
disconnection--see the definition of de-energisation; 34
distribution system means-- 35
(a) for a distributor who is a regulated distribution system operator 36
within the meaning of the NEL--a distribution system within the 37
meaning of the NEL; or 38
(b) for a distributor who is a service provider within the meaning of 39
the NGL who owns, operates or controls a distribution pipeline 40
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National Energy Retail Law (Adoption) Bill 2012
Note National Energy Retail Law
that is a covered pipeline under that law--a distribution pipeline 1
within the meaning of the NGL; or 2
(c) for a nominated distributor under section 12--the nominated 3
distribution system that is specified under that section; 4
distributor means-- 5
(a) a regulated distribution system operator within the meaning of 6
the NEL; or 7
(b) a service provider within the meaning of the NGL who owns, 8
operates or controls a distribution pipeline that is a covered 9
pipeline under that Law; or 10
(c) a nominated distributor, to the extent provided by section 12; 11
distributor service standards means service standards imposed on 12
distributors by or under energy laws, including, for example, service 13
standards relating to the following: 14
(a) the frequency and duration of supply interruptions; 15
(b) the timely notice of planned interruptions; 16
(c) the quality of supply (excluding frequency) for electricity 17
(including voltage variations); 18
(d) wrongful de-energisation; 19
(e) timeframes for de-energisation and re-energisation; 20
(f) being on time for appointments; 21
(g) response times for fault calls; 22
(h) the provision of fault information; 23
energisation of premises means-- 24
(a) in the case of electricity--the closing of a connection; or 25
(b) in the case of gas--the opening of a connection, 26
in order to allow the flow of energy to the premises; 27
energy means electricity or gas or both; 28
energy laws includes-- 29
(a) national energy legislation; and 30
(b) jurisdictional energy legislation; and 31
(c) the Rules, the NER and the NGR; and 32
(d) instruments made under this Law, the Rules, the NER and the 33
NGR (including the Retail Market Procedures); 34
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National Energy Retail Law (Adoption) Bill 2012
National Energy Retail Law Note
energy marketing activity means an activity that is carried on to market, 1
advertise or promote-- 2
(a) customer connection services; or 3
(b) customer retail services; or 4
(c) a supplier or prospective supplier of customer connection 5
services or customer retail services, 6
to a small customer; 7
energy ombudsman means a body or person prescribed by the National 8
Regulations as an energy ombudsman; 9
entry criteria (in relation to retailer authorisations)--see section 90; 10
exempt seller means a person who is exempted by the AER under 11
Division 6 of Part 5 from the requirement to hold a retailer 12
authorisation; 13
explicit informed consent--see section 39; 14
financially responsible retailer for premises means-- 15
(a) in the case of electricity--the retailer who is the financially 16
responsible Market Participant responsible for the premises 17
under the NER; or 18
(b) in the case of gas--the retailer who is responsible for settling the 19
account for gas withdrawn from the delivery point (however 20
described) associated with the premises under the relevant Retail 21
Market Procedures; 22
gas means natural gas within the meaning of the NGL; 23
GSL scheme means a scheme set out in energy laws under which there 24
are distributor service standards to which an associated payment (a 25
Guaranteed Service Level payment or GSL payment) is payable by a 26
distributor to the customer where the distributor fails to meet the service 27
standard; 28
hardship customer means a residential customer of a retailer who is 29
identified as a customer experiencing financial payment difficulties due 30
to hardship in accordance with the retailer's customer hardship policy; 31
hardship program indicators means the hardship program indicators 32
under section 287; 33
initial National Energy Retail Rules means the National Energy Retail 34
Rules made under section 238; 35
jurisdictional energy legislation means legislation of a participating 36
jurisdiction (other than national energy legislation), or any instrument 37
made or issued under or for the purposes of that legislation, that 38
regulates energy in that jurisdiction; 39
jurisdictional regulator means a body or person that is prescribed by 40
the National Regulations as a jurisdictional regulator; 41
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National Energy Retail Law (Adoption) Bill 2012
Note National Energy Retail Law
large customer--see section 5; 1
life support equipment means life support equipment of a kind or kinds 2
defined in the Rules; 3
local area retailer means a retailer nominated under section 11; 4
local instrument means a regulation, rule, order, declaration or other 5
instrument made under an application Act, but does not include the 6
National Regulations; 7
Note-- See also subsection (6). 8
lower consumption threshold--see sections 5 and 6; 9
Note-- Provisions for determining and reviewing the consumption thresholds 10
are contained in the National Regulations. Provisions for applying the 11
thresholds are contained in the Rules. 12
market offer means an offer by a retailer to a small customer to provide 13
customer retail services under a market retail contract; 14
market offer prices means the tariffs and charges that a retailer charges 15
a small customer for or in connection with the sale of energy to a small 16
customer under a market retail contract; 17
market retail contract means a customer retail contract referred to in 18
section 33; 19
MCE means the Ministerial Council on Energy established on 8 June 20
2001, being the Council of Ministers with primary carriage of energy 21
matters at a national level comprising the Ministers representing the 22
Commonwealth, the States, the Australian Capital Territory and the 23
Northern Territory, acting in accordance with its own procedures; 24
MCE directed review means a review conducted by the AEMC under 25
Division 4 of Part 9; 26
MCE statement of policy principles means a statement of policy 27
principles issued by the MCE under section 14; 28
meter identifier means-- 29
(a) in the case of electricity--the NMI; or 30
(b) in the case of gas--the MIRN or the delivery point identifier; 31
Minister of a participating jurisdiction--see section 10; 32
MIRN means the meter installation registration number as defined 33
under the relevant gas Retail Market Procedures; 34
move-in customer means a small customer who starts consuming 35
energy at premises without first applying to a retailer for the provision 36
of customer retail services; 37
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National Energy Retail Law (Adoption) Bill 2012
National Energy Retail Law Note
national energy legislation means-- 1
(a) the national energy retail legislation; and 2
(b) the national electricity legislation as defined in the NEL; and 3
(c) the national gas legislation as defined in the NGL; 4
national energy retail legislation means-- 5
(a) this Law as applying, by the application Act of a participating 6
jurisdiction, as a law of that jurisdiction; and 7
(b) the National Regulations; and 8
(c) the application Act of a participating jurisdiction; and 9
(d) the local instruments of a participating jurisdiction; 10
national energy retail objective means the objective set out in 11
section 13; 12
National Energy Retail Regulations or National Regulations means 13
the Regulations made under Part 11; 14
National Energy Retail Rules or Rules means-- 15
(a) the initial National Energy Retail Rules; and 16
(b) Rules made by the AEMC under this Law, including Rules that 17
amend or revoke-- 18
(i) the initial National Energy Retail Rules; or 19
(ii) Rules made by it; 20
negotiated connection contract means a customer connection contract 21
that is entered into in accordance with section 78; 22
NEL means the National Electricity Law set out in the Schedule to the 23
National Electricity (South Australia) Act 1996 of South Australia; 24
NER means the National Electricity Rules as in force from time to time 25
under the NEL; 26
network charges means charges that a distributor is entitled to charge 27
for customer connection services-- 28
(a) for gas, under the distributor's access arrangement and Parts 12 29
and 12A of the NGR; and 30
(b) for electricity, under Chapters 5A and 6 of the NER; 31
new connection means a connection established or to be established, in 32
accordance with energy laws, where there is no existing connection; 33
NGL means the National Gas Law set out in the Schedule to the 34
National Gas (South Australia) Act 2008 of South Australia; 35
NGR means the National Gas Rules as in force from time to time under 36
Chapter 9 of the NGL; 37
NMI means a national metering identifier as defined in the NER; 38
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National Energy Retail Law (Adoption) Bill 2012
Note National Energy Retail Law
nominated distributor--see section 12; 1
offence provision means a provision of this Law the breach or 2
contravention of which by a person exposes that person to a finding of 3
guilt by a court; 4
participating jurisdiction means a jurisdiction that is a participating 5
jurisdiction by reason of section 9; 6
payment plan means a plan for-- 7
(a) a hardship customer; or 8
(b) a residential customer who is not a hardship customer but who is 9
experiencing payment difficulties, 10
to pay a retailer, by periodic instalments in accordance with the Rules, 11
any amounts payable by the customer for the sale and supply of energy; 12
prepayment meter market retail contract means a market retail contract 13
in respect of particular premises to which energy is supplied using a 14
prepayment meter system; 15
prepayment meter system means a device, componentry, software or 16
other mechanism that operates to permit the flow of energy through a 17
meter after prepayment and when activated by a card, code or some 18
other method; 19
price comparator--see section 62; 20
Public Register of Authorised Retailers and Exempt Sellers--see 21
section 119; 22
reconnection--see the definition of re-energisation; 23
re-energisation or reconnection of premises means the energisation of 24
the premises after their de-energisation; 25
regulated entity means-- 26
(a) a retailer; or 27
(b) a distributor; or 28
(c) any other person identified in the Rules as a regulated entity; 29
residential customer means a customer who purchases energy 30
principally for personal, household or domestic use at premises; 31
retail consultation procedure means the consultation procedure 32
prescribed by the Rules; 33
retail marketer means a retailer or an associate of a retailer; 34
Retail Market Procedures means-- 35
(a) in the case of electricity--the Retail Market Procedures within 36
the meaning of the NER; and 37
(b) in the case of gas--the Retail Market Procedures within the 38
meaning of the NGL and made under the NGR; 39
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National Energy Retail Law (Adoption) Bill 2012
National Energy Retail Law Note
retailer means a person who is the holder of a retailer authorisation; 1
retailer authorisation means a retailer authorisation issued under 2
Part 5; 3
revocation process--see section 120; 4
shared customer, in relation to a distributor and a retailer, means a 5
person who is a customer of the retailer and whose premises are 6
connected to the distributor's distribution system; 7
short term trading market for gas has the same meaning as in the NGL; 8
small customer--see section 5; 9
small market offer customer--see section 5; 10
standard complaints and dispute resolution procedures--see 11
section 81; 12
standard retail contract means a customer retail contract that takes 13
effect under section 26 as a contract between a small customer and a 14
designated retailer; 15
standing offer--see section 22; 16
standing offer prices means all of the tariffs and charges that a retailer 17
charges a small customer for or in connection with the sale and supply 18
of energy to a small customer under a standard retail contract; 19
this jurisdiction--see the definition of that term in the application Act 20
of each participating jurisdiction; 21
Tribunal means the Australian Competition Tribunal referred to in the 22
Competition and Consumer Act 2010 of the Commonwealth and 23
includes a member of the Tribunal or a Division of the Tribunal 24
performing functions of the Tribunal; 25
upper consumption threshold--see sections 5 and 6; 26
Note-- Provisions for determining and reviewing the consumption thresholds 27
are contained in the National Regulations. Provisions for applying the 28
thresholds are contained in the Rules. 29
(2) A reference in this Law to the sale and supply of energy includes a 30
reference to the sale or supply of energy. 31
(3) A reference in this Law to a customer (including a reference to a small 32
customer or a large customer) includes a reference to a prospective 33
customer. 34
(4) A reference in this Law to the premises of a customer in the context of 35
a customer retail contract or customer connection contract is a reference 36
to the premises of the customer to which the contract relates, but does 37
not include a reference to other premises of the customer. 38
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National Energy Retail Law (Adoption) Bill 2012
Note National Energy Retail Law
(5) To avoid doubt, a customer can be a residential customer in respect of 1
particular premises and a business customer in respect of other 2
premises. 3
(6) The Minister responsible for administering the application Act (other 4
than the application Act of South Australia) under which a local 5
instrument is made is to make arrangements for notice of the making 6
and publication of the instrument to be published for information in the 7
South Australian Government Gazette. 8
3 Application of Law, National Regulations and Rules in this jurisdiction 9
This Law, the National Regulations and the Rules apply in this 10
jurisdiction except to the extent provided by or under the application 11
Act of this jurisdiction or any other Act of this jurisdiction. 12
Note-- This Law, the National Regulations and the Rules are, in their 13
application to a jurisdiction, to be read in conjunction with the application Act 14
and jurisdictional energy legislation of the jurisdiction. 15
4 Meaning of civil penalty provision and conduct provision 16
(1) A civil penalty provision is-- 17
(a) a provision of this Law specified in the Table at the foot of this 18
subsection; or 19
(b) a provision of this Law (other than an offence provision) or the 20
Rules that is prescribed by the National Regulations to be a civil 21
penalty provision. 22
Provision Section heading
Section 20(2) Kinds of customer retail contracts
Section 22(1) and (3) Obligation to make offer to small customers
Section 23(1) Standing offer prices
Section 25(1) Adoption of form of standard retail contract
Section 27 Obligation to comply with standard retail
contract
Section 38 Requirement for explicit informed consent for
certain transactions
Section 43(2) and (3)(b) Customer hardship policies
Section 50(1) Payment plans
Section 53(2) Energy Marketing Rules
Section 57 Contractual arrangements for use of
prepayment meter systems
Page 28
National Energy Retail Law (Adoption) Bill 2012
National Energy Retail Law Note
Provision Section heading
Section 59(1) Persons on life support equipment
Section 63 AER information gathering powers for pricing
guidelines and comparator
Section 66 Obligation to provide customer connection
services
Section 69(1) Adoption of form of deemed standard
connection contract
Section 71(1) Obligations to comply with deemed standard
connection contract and to bill retailer
Section 88 Requirement for authorisation or exemption
Section 103(8) Deciding transfer application
Section 105(9) Surrender of retailer authorisation
Section 106 Transfer of customers following surrender
Section 108 Transfer of customers following revocation
Section 112(2) Conditions
Section 120(11) Revocation process--retailer authorisations
and exemptions
Section 143(2)(a) Compliance requirements following service of
RoLR notice
Section 156 Compliance with RoLR regulatory information
notices
Section 274(1) Obligation of regulated entities to provide
information and data about compliance
Section 276(1), (2) and (4) Compliance audits by regulated entities
Section 282(1) Obligation of regulated entities to provide
information and data about performance
(2) A conduct provision is a provision of this Law (other than an offence 1
provision) or the Rules that is prescribed by the National Regulations to 2
be a conduct provision. 3
5 Meaning of customer and associated terms 4
(1) A customer is a person-- 5
(a) to whom energy is sold for premises by a retailer; or 6
(b) who proposes to purchase energy for premises from a retailer. 7
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National Energy Retail Law (Adoption) Bill 2012
Note National Energy Retail Law
(2) A small customer is a customer-- 1
(a) who is a residential customer; or 2
(b) who is a business customer who consumes energy at business 3
premises below the upper consumption threshold. 4
(3) A large customer is a business customer who consumes energy at 5
business premises at or above the upper consumption threshold. 6
(4) A small market offer customer is a small customer who is a business 7
customer who consumes energy at or above the lower consumption 8
threshold. 9
6 Provisions relating to consumption thresholds for business customers 10
(1) This section applies for the purposes of the consumption thresholds 11
referred to in section 5. 12
(2) The National Regulations may-- 13
(a) determine or make provision for determining the upper 14
consumption thresholds and lower consumption thresholds for 15
business customers; and 16
(b) prescribe a procedure for reviewing consumption thresholds so 17
determined. 18
(3) The upper consumption thresholds may apply (in relation to the 19
provision of customer retail services to a business customer) on the 20
basis of an aggregation of 2 or more business premises of a business 21
customer in accordance with the Rules. 22
(4) Without limitation-- 23
(a) National Regulations made for the purposes of subsection (2); 24
and 25
(b) Rules made for the purposes of subsection (3), 26
may differ in their application to different classes of business customers 27
or different regulatory requirements, or both. 28
7 Classification and reclassification of customers 29
The Rules may make provision for or with respect to the classification 30
and reclassification of customers, including, for example-- 31
(a) whether a person is a residential customer by reference to 32
whether the person purchases energy principally for personal, 33
household or domestic use at premises; or 34
(b) whether a business customer is a small customer or a large 35
customer; or 36
(c) whether a business customer is a small market offer customer. 37
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National Energy Retail Law (Adoption) Bill 2012
National Energy Retail Law Note
8 Interpretation generally 1
(1) Schedule 2 to the NGL applies to this Law, the National Regulations 2
and the Rules and any other statutory instrument made under this Law 3
in the same way as it applies to the NGL and the regulations, rules and 4
any other statutory instruments made under the NGL. 5
(2) For that purpose-- 6
(a) (without limiting subsection (1)) a reference in that Schedule to 7
the NGL or NGR (however expressed) is taken to be a reference 8
to this Law or the Rules respectively; and 9
(b) clauses 2, 29, 40(3) and 52, and Part 7 of that Schedule are taken 10
to be omitted; and 11
(c) the definition of business day in clause 10 is taken to be omitted. 12
Note-- See section 320 of this Law which applies instead of clauses 2 and 52 13
of Schedule 2 to the NGL. 14
Division 2 Matters relating to participating jurisdictions 15
9 Participating jurisdictions 16
The State of South Australia, the Commonwealth, each of the States of 17
New South Wales, Victoria, Queensland and Tasmania, and the 18
Australian Capital Territory are participating jurisdictions for the 19
purposes of this Law. 20
10 Ministers of participating jurisdictions 21
The Ministers of the participating jurisdictions are-- 22
(a) the Minister of the Crown in right of South Australia 23
administering Part 2 of the National Energy Retail Law (South 24
Australia) Act 2011 of South Australia; and 25
(b) the Ministers of the Crown in right of the other participating 26
jurisdictions administering the laws of those jurisdictions that 27
substantially correspond to Part 2 of the National Energy Retail 28
Law (South Australia) Act 2011 of South Australia; and 29
(c) the Commonwealth Minister. 30
11 Local area retailers 31
(1) The regulations under the application Act of a participating jurisdiction 32
must nominate a retailer as a local area retailer for that jurisdiction for 33
the purposes of this Law. 34
(2) One or more retailers may be nominated for a jurisdiction. 35
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National Energy Retail Law (Adoption) Bill 2012
Note National Energy Retail Law
(3) A nomination of a retailer may be made for any or all of the following: 1
(a) the whole or a specified part of the geographical area of a 2
jurisdiction; 3
(b) specified premises or a specified class of premises; 4
(c) specified customers or a specified class of customers. 5
(4) A nomination of a retailer may relate to electricity or gas or both. 6
12 Nominated distributors 7
(1) The regulations under an application Act of a participating jurisdiction 8
may nominate an entity (being an entity that is licensed or otherwise 9
authorised under jurisdictional energy legislation of that jurisdiction) to 10
provide customer connection services as a nominated distributor for the 11
purposes of this Law. 12
(2) A nomination of an entity may be made for any or all of the following: 13
(a) the whole or a specified part of the geographical area of a 14
jurisdiction; or 15
(b) the whole or a specified part of a distribution system that is 16
owned, controlled or operated by the entity. 17
(3) A nomination of an entity has the effect of applying this Law and the 18
Rules (in whole or in part as specified in the regulations and with any 19
specified modifications) to the entity as if it were a distributor within the 20
meaning of this Law, and references in this Law and the Rules to a 21
distributor are accordingly taken to include references to the nominated 22
distributor. 23
Division 3 National energy retail objective and policy 24
principles 25
13 National energy retail objective 26
The objective of this Law is to promote efficient investment in, and 27
efficient operation and use of, energy services for the long term interests 28
of consumers of energy with respect to price, quality, safety, reliability 29
and security of supply of energy. 30
14 MCE statements of policy principles 31
(1) Subject to this section, the MCE may issue a statement of policy 32
principles in relation to any matters that are relevant to the performance 33
and exercise by the AEMC of its functions and powers in-- 34
(a) making a Rule; or 35
(b) conducting a review under section 232. 36
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(2) Before issuing a statement of policy principles, the MCE must be 1
satisfied that the statement is consistent with the national energy retail 2
objective. 3
(3) As soon as practicable after issuing a statement of policy principles, the 4
MCE must give a copy of the statement to the AEMC. 5
(4) The AEMC must publish the statement in the South Australian 6
Government Gazette and on its website as soon as practicable after it is 7
given a copy of the statement. 8
Division 4 Operation and effect of National Energy Retail 9
Rules 10
15 Rules to have force of law 11
The National Energy Retail Rules have the force of law in this 12
jurisdiction. 13
Division 5 Application of this Law and the Rules to forms of 14
energy 15
16 Application of Law and Rules to energy 16
(1) This Law and the Rules apply to-- 17
(a) the sale and supply of electricity or gas or both to customers; and 18
(b) a retailer to the extent the retailer sells electricity or gas or both; 19
and 20
(c) a distributor to the extent the distributor supplies electricity or gas 21
or both. 22
(2) References in this Law and the Rules to energy are to be construed 23
accordingly. 24
(3) Nothing in this section affects the application of provisions of this Law 25
or the Rules to persons who are neither retailers nor distributors. 26
Division 6 Miscellaneous 27
17 Extraterritorial operation of Law 28
It is the intention of the Parliament of this jurisdiction that the operation 29
of this Law is to, as far as possible, include operation in relation to the 30
following: 31
(a) things situated in or outside the territorial limits of this 32
jurisdiction; 33
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(b) acts, transactions and matters done, entered into or occurring in 1
or outside the territorial limits of this jurisdiction; 2
(c) things, acts, transactions and matters (wherever situated, done, 3
entered into or occurring) that would, apart from this Law, be 4
governed or otherwise affected by the law of another jurisdiction. 5
18 Law binds the State 6
(1) This Law binds the State. 7
(2) In this section-- 8
State means the Crown in right of this jurisdiction, and includes-- 9
(a) the Government of this jurisdiction; and 10
(b) a Minister of the Crown in right of this jurisdiction; and 11
(c) a statutory corporation, or other entity, representing the Crown in 12
right of this jurisdiction. 13
Part 2 Relationship between retailers and small 14
customers 15
Division 1 Preliminary 16
19 Application of this Part 17
(1) This Part applies to the relationship between retailers and small 18
customers. 19
(2) This Part, other than Division 12, does not apply to or affect the 20
relationship between retailers and large customers. 21
(3) This Part does not apply to business customers of a retailer who 22
aggregate 2 or more business premises in accordance with the Rules. 23
Division 2 Customer retail contracts generally 24
20 Kinds of customer retail contracts 25
(1) There are 2 kinds of customer retail contracts, as follows: 26
(a) standard retail contracts; 27
(b) market retail contracts. 28
(2) A retailer cannot provide customer retail services to small customers 29
under any other kind of contract or arrangement. 30
Note-- This subsection is a civil penalty provision. 31
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(3) This section does not affect deemed customer retail arrangements under 1
Division 9. 2
(4) This section does not affect RoLR deemed small customer retail 3
arrangements under Part 6. 4
Division 3 Standing offers and standard retail contracts for 5
small customers 6
21 Model terms and conditions 7
The Rules must set out model terms and conditions for standard retail 8
contracts (referred to in this Division as the model terms and 9
conditions). 10
22 Obligation to make offer to small customers 11
(1) A retailer must make an offer (a standing offer) to provide customer 12
retail services to small customers for whom it is the designated 13
retailer-- 14
(a) at the standing offer prices; and 15
(b) under the retailer's form of standard retail contract. 16
Note-- This subsection is a civil penalty provision. 17
(2) The Rules may provide for the manner and form in which a standing 18
offer is to be made. 19
(3) Without limiting the power to make Rules relating to the manner and 20
form in which a standing offer is to be made, a designated retailer must 21
publish the terms and conditions of the standing offer on the retailer's 22
website. 23
Note-- This subsection is a civil penalty provision. 24
(4) A designated retailer must comply with the terms and conditions of the 25
retailer's standing offer. 26
(5) A designated retailer is not obliged to make a standing offer to a small 27
customer if the customer's premises are not, or are not proposed to be, 28
connected to a distributor's distribution system. 29
Note-- Section 31 provides for the satisfaction of a designated retailer's 30
obligation to make a standing offer by making an offer to certain small 31
customers to sell energy under a market retail contract. 32
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23 Standing offer prices 1
(1) Publication of standing offer prices 2
A retailer must publish its standing offer prices on its website, and the 3
standing offer prices so published remain in force until varied in 4
accordance with this section. 5
Notes-- 6
1 A standing offer price may be a regulated price under jurisdictional 7
energy legislation. 8
2 This subsection is a civil penalty provision. 9
(2) Variation of standing offer prices 10
A retailer may vary the standing offer prices from time to time, but a 11
variation has no effect unless-- 12
(a) it is made in accordance with the requirements (if any) of 13
jurisdictional energy legislation; and 14
(b) the variation (or the standing offer prices as varied) is published 15
on the retailer's website. 16
(3) Publication and notification of variation 17
A retailer must-- 18
(a) publish the variation (or the standing offer prices as varied) on the 19
retailer's website; and 20
(b) publish a notice about the variation in a newspaper circulating in 21
the participating jurisdictions in which the retailer has small 22
customers, notifying customers that-- 23
(i) there has been a variation; and 24
(ii) the variation (or the standing offer prices as varied) is 25
published on the retailer's website; and 26
(c) inform each affected customer of the variation when the retailer 27
sends the next bill to the customer. 28
(4) Commencement of variation on specified date 29
Unless subsection (5) applies, a variation of the standing offer prices 30
takes effect on and from the date specified in the variation. 31
(5) Limitations on commencement of variation 32
A variation of the standing offer prices takes effect-- 33
(a) if the date specified in the variation is before or within the period 34
of 6 months starting with the date the last variation took effect 35
(or, if the standing offer prices have not previously been varied, 36
the period of 6 months since the date of publication of the 37
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standing offer prices)--on the date that immediately follows the 1
6-month period; or 2
(b) if the date specified in the variation is before or within the period 3
of 10 business days starting with the first business day after the 4
date on which the variation was published--on the date that 5
immediately follows the 10-day period. 6
If both paragraphs (a) and (b) are applicable and the dates mentioned in 7
those paragraphs are different, the variation takes effect on the later of 8
those dates. 9
Note-- A retailer is not subject to subsection (5) in respect of a variation of its 10
standing offer prices as a result of a RoLR cost recovery scheme under Part 6 11
(see section 167(6)). 12
(6) Notification to AER 13
A retailer must, as soon as practicable, notify the AER of details of the 14
standing offer prices and any variation of the standing offer prices in the 15
manner and form required by the AER Retail Pricing Information 16
Guidelines. 17
(7) Publication by AER 18
The AER must, as soon as practicable after being notified by a retailer, 19
publish the standing offer prices or any variation of the standing offer 20
prices on the AER's website, but failure to do so does not affect the 21
operation or effect of the standing offer prices or any variation. 22
24 Presentation of standing offer prices 23
(1) A retailer must-- 24
(a) present its standing offer prices (including any variation of those 25
prices) in accordance with the AER Retail Pricing Information 26
Guidelines; and 27
(b) without limitation, present those prices in accordance with those 28
guidelines when publishing, advertising or notifying the AER of 29
those prices or any variation. 30
(2) The retailer must present its standing offer prices (including any 31
variation of those prices) prominently on its website and in any other 32
relevant material provided by the retailer in accordance with those 33
guidelines. 34
Note-- See section 61 for the AER Retail Pricing Information Guidelines. 35
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25 Adoption of form of standard retail contract 1
(1) Adoption and publication 2
A retailer must adopt a form of standard retail contract and publish it on 3
the retailer's website. 4
Note-- This subsection is a civil penalty provision. 5
(2) Rules 6
The Rules may make provision for or with respect to the adoption, form 7
and contents of forms of standard retail contracts, and in particular may 8
provide for the manner of adoption and publication of forms of standard 9
retail contracts by retailers. 10
(3) Adoption without alteration except as permitted or required 11
A retailer's form of standard retail contract-- 12
(a) must adopt the relevant model terms and conditions with no 13
alterations, other than permitted alterations or required 14
alterations; and 15
(b) if there are any required alterations--must include those required 16
alterations. 17
(4) Permitted alterations 18
Permitted alterations are-- 19
(a) alterations specifying details relating to identity and contact 20
details of the retailer; and 21
(b) minor alterations that do not change the substantive effect of the 22
model terms and conditions; and 23
(c) alterations of a kind specified or referred to in the Rules. 24
(5) Required alterations 25
Required alterations are-- 26
(a) alterations that the Rules require to be made to the retailer's form 27
of standard retail contract in relation to matters relating to 28
specific jurisdictions; and 29
(b) alterations of a kind specified or referred to in the Rules. 30
(6) Definition 31
In this section-- 32
alterations includes omissions and additions. 33
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26 Formation of standard retail contract 1
(1) A designated retailer's form of standard retail contract takes effect as a 2
contract between the retailer and a small customer when the customer-- 3
(a) requests the provision of customer retail services at premises 4
under the retailer's standing offer; and 5
(b) complies with the requirements specified in the Rules as 6
pre-conditions to the formation of standard retail contracts. 7
(2) A designated retailer cannot decline to enter into a standard retail 8
contract if the customer makes the request and complies with the 9
requirements referred to in subsection (1). 10
27 Obligation to comply with standard retail contract 11
A designated retailer must comply with the obligations imposed on the 12
retailer under the terms and conditions of a standard retail contract 13
between the retailer and a small customer. 14
Note-- This section is a civil penalty provision. 15
28 Variation of standard retail contract 16
(1) Variation of form of standard retail contract--permitted alterations 17
A retailer may vary the terms and conditions of the retailer's form of 18
standard retail contract by making permitted alterations. 19
(2) Variation of form of standard retail contract--required alterations 20
A retailer must vary the terms and conditions of the retailer's form of 21
standard retail contract by making required alterations, and must do so 22
by the date specified in the relevant Rule referred to in section 237(4). 23
(3) Permitted alterations 24
Permitted alterations are-- 25
(a) alterations specifying details relating to identity and contact 26
details of the retailer; and 27
(b) minor alterations that do not change the substantive effect of the 28
model terms and conditions; and 29
(c) alterations of a kind specified or referred to in the Rules. 30
(4) Required alterations 31
Required alterations are-- 32
(a) alterations that the Rules require to be made to the retailer's form 33
of standard retail contract in relation to matters relating to 34
specific jurisdictions; and 35
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(b) alterations to a term or condition that is already adopted by the 1
retailer so as to make the adopted term or condition consistent 2
with the model terms and conditions as currently required by the 3
Rules; and 4
(c) alterations of a kind specified or referred to in the Rules. 5
(5) When variation takes effect on existing contracts 6
A variation of the retailer's form of standard retail contract takes effect 7
as a variation of an existing standard retail contract between the retailer 8
and a customer on and from the date on which the retailer publishes the 9
variation on the retailer's website or a later date specified in the 10
published variation. 11
(6) Definition 12
In this section-- 13
alterations includes omissions and additions. 14
29 Standard retail contract to be consistent with model terms and 15
conditions 16
(1) The terms and conditions (whether original or varied) of a standard 17
retail contract have no effect to the extent of any inconsistency with the 18
model terms and conditions as currently in force and any required 19
alterations. 20
(2) If there is such an inconsistency, the model terms and conditions or 21
required alterations (as the case requires) apply instead to the extent of 22
the inconsistency. 23
30 Duration of standard retail contract 24
A standard retail contract between a designated retailer and a small 25
customer for the provision of customer retail services to the premises of 26
the small customer remains in force until the standard retail contract is 27
terminated in accordance with this Law, the Rules or the contract. 28
31 Satisfaction of designated retailer's obligation to make standing offer by 29
making market offer to certain small customers 30
(1) A designated retailer may fulfill its obligation to make a standing offer 31
to a small market offer customer (or any class of small market offer 32
customers) by making an offer to provide customer retail services under 33
a market retail contract. 34
(2) If-- 35
(a) such an offer is made to a small market offer customer in 36
accordance with the Rules; and 37
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(b) the customer declines to enter into a market retail contract, 1
the designated retailer may, but is not obliged to, make a standing offer 2
to the customer. 3
32 Rules 4
Without limiting the power to make Rules, the Rules may make 5
provision for or with respect to standard retail contracts generally, 6
including but not limited to the following: 7
(a) procedures for small customers requesting the provision of 8
customer retail services in accordance with the standing offer; 9
(b) information that retailers may require of small customers 10
requesting the provision of customer retail services in accordance 11
with the standing offer; 12
(c) the responsibilities of retailers in responding to requests for the 13
provision of customer retail services in accordance with the 14
standing offer; 15
(d) the conditions to be complied with by small customers in respect 16
of the formation of standard retail contracts. 17
Division 4 Market retail contracts for small customers 18
33 Formation of market retail contracts 19
A small customer and a retailer may, subject to and in accordance with 20
this Division and section 147, negotiate and enter into a market retail 21
contract for the provision of-- 22
(a) customer retail services; and 23
(b) any other services, 24
as agreed between the small customer and the retailer. 25
34 Minimum requirements for market retail contracts 26
(1) The Rules may set out-- 27
(a) minimum requirements that are to apply in relation to small 28
customers who purchase energy under a market retail contract; 29
and 30
(b) minimum requirements that are to apply in relation to the terms 31
and conditions of market retail contracts. 32
(2) A retailer must ensure that the terms and conditions of a market retail 33
contract are not inconsistent with the applicable minimum requirements 34
set out in the Rules. However, this subsection does not prevent a higher 35
level of service than those minimum requirements from being provided. 36
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(3) A market retail contract may contain terms and conditions dealing with 1
other matters, other than terms or conditions that the Rules provide must 2
not be included in the contract. 3
(4) A market retail contract must contain additional terms or conditions that 4
the Rules require to be included in the contract in relation to matters 5
relating to specific jurisdictions. 6
(5) A retailer who sells energy to a small customer under a market retail 7
contract must comply with the requirements of the Rules referred to in 8
subsection (1). 9
35 Variation of market retail contract 10
Any variation of the terms and conditions of a market retail contract 11
must not be inconsistent with the requirements of the Rules in relation 12
to the variation of market retail contracts. 13
36 Market retail contract to be consistent with minimum requirements of the 14
Rules 15
(1) The terms and conditions (whether original or varied) of a market retail 16
contract have no effect to the extent of any inconsistency with any 17
relevant minimum requirements of the Rules as currently in force. 18
(2) If there is such an inconsistency, the minimum requirements apply 19
instead to the extent of the inconsistency (unless the terms and 20
conditions provide for a higher level of service to the customer). 21
37 Presentation of market offer prices 22
(1) A retailer must-- 23
(a) present its market offer prices (including any variation of those 24
prices) in accordance with the AER Retail Pricing Information 25
Guidelines; and 26
(b) without limitation, present those prices in accordance with those 27
guidelines when publishing, advertising or notifying the AER of 28
those prices or any variation. 29
(2) The retailer must present its market offer prices (including any variation 30
of those prices) prominently on its website and in any other relevant 31
material provided by the retailer in accordance with those guidelines. 32
Note-- See section 61 for the AER Retail Pricing Information Guidelines. 33
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Division 5 Explicit informed consent 1
38 Requirement for explicit informed consent for certain transactions 2
A retailer must obtain the explicit informed consent of a small customer 3
for the following transactions: 4
(a) except as provided by sections 103(7), 105(8) and under Part 6, 5
the transfer of the customer to the retailer from another retailer; 6
(b) the entry by the customer into a market retail contract with the 7
retailer; 8
(c) without limiting paragraph (b), the entry by the customer into a 9
prepayment meter market retail contract with the retailer; 10
(d) other transactions specified in this Law or the Rules as requiring 11
explicit informed consent. 12
Notes-- 13
1 See section 41 for the consequences of not obtaining explicit informed 14
consent as required. 15
2 This section is a civil penalty provision. 16
39 Nature of explicit informed consent 17
(1) Explicit informed consent to a transaction is consent given by a small 18
customer to a retailer where-- 19
(a) the retailer, or a person acting on behalf of the retailer, has 20
clearly, fully and adequately disclosed all matters relevant to the 21
consent of the customer, including each specific purpose or use 22
of the consent; and 23
(b) the customer gives the consent to the transaction in accordance 24
with subsection (2); and 25
(c) any requirements prescribed by the Rules for the purposes of this 26
subsection have been complied with. 27
(2) Explicit informed consent requires the consent to be given by the small 28
customer-- 29
(a) in writing signed by the customer; or 30
(b) verbally, so long as the verbal consent is evidenced in such a way 31
that it can be verified and made the subject of a record under 32
section 40; or 33
(c) by electronic communication generated by the customer. 34
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40 Record of explicit informed consent 1
(1) A retailer must-- 2
(a) create a record of each explicit informed consent required by this 3
Division and provided by a small customer; and 4
(b) retain the record for at least 2 years. 5
(2) The record must be in such a format and include such information as 6
will enable-- 7
(a) the AER to verify the retailer's compliance with the relevant 8
requirements of this Part and the Rules relating to explicit 9
informed consent; and 10
(b) the retailer to answer enquiries from a small customer relating to 11
the customer's explicit informed consent. 12
(3) A retailer must, on request by a small customer and at no charge, 13
provide the customer with access to a copy of the record of any explicit 14
informed consent given by the customer and then retained by the 15
retailer. 16
41 No or defective explicit informed consent 17
(1) A transaction referred to in section 38 between a retailer and small 18
customer is void if it is established, in accordance with subsection (2) 19
and any applicable provisions of the Rules, that explicit informed 20
consent as required by this Division was not obtained. 21
(2) It is established that the required explicit informed consent was not 22
obtained if-- 23
(a) the customer raises the issue with the retailer either by asserting 24
that the consent was not obtained or by requesting production of 25
a record of the consent; and 26
(b) the issue is so raised within 12 months after the date of the 27
transaction; and 28
(c) the retailer-- 29
(i) admits that the consent was not obtained; or 30
(ii) does not produce a satisfactory record of the informed 31
consent as soon as practicable, but within 10 business 32
days, after the issue is so raised. 33
(3) Subject to subsections (4) and (5), the retailer cannot recover any 34
amount for any energy supplied as a result of the void transaction. 35
(4) If the void transaction did not involve the transfer of the customer to the 36
retailer from another retailer, the customer is only liable to pay the 37
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retailer any charges that would have been payable for the sale and 1
supply of energy if the void transaction had not occurred. 2
(5) If the void transaction did involve the transfer of the customer to the 3
retailer (the new retailer) from another retailer (the original retailer)-- 4
(a) the customer is (subject to paragraph (b)) liable to pay the 5
original retailer all charges for the sale and supply of energy as if 6
the void transaction had not occurred and the sale and supply had 7
occurred with the original retailer being the customer's retailer; 8
and 9
(b) to the extent that the customer has paid the new retailer charges 10
for the sale and supply of energy as a consequence of the void 11
transaction-- 12
(i) the customer is entitled to set off the amount of those 13
payments against any amounts payable under paragraph 14
(a); and 15
(ii) the new retailer must pay the set off amounts to the original 16
retailer; and 17
(iii) the original retailer is entitled to recover those set off 18
amounts from the new retailer in a court of competent 19
jurisdiction; and 20
(c) nothing in this section prevents the original retailer from 21
proceeding by action for loss or damage suffered because of the 22
void transaction; and 23
(d) the customer is not liable to the new retailer for any loss or 24
damage arising because the transaction is void or arising from 25
payments the new retailer has to pay the original retailer because 26
the transaction is void. 27
42 Rules 28
The Rules may make provision for or with respect to explicit informed 29
consent in relation to small customers, including but not limited to 30
procedures for establishing that explicit informed consent as required 31
was not obtained and the consequences of not obtaining explicit 32
informed consent as required. 33
Division 6 Customer hardship 34
43 Customer hardship policies 35
(1) The purpose of a retailer's customer hardship policy is to identify 36
residential customers experiencing payment difficulties due to hardship 37
and to assist those customers to better manage their energy bills on an 38
ongoing basis. 39
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(2) A retailer must-- 1
(a) within 3 months of being granted a retailer authorisation-- 2
(i) develop a customer hardship policy in respect of 3
residential customers of the retailer; and 4
(ii) submit it to the AER for approval under this Division; and 5
(b) publish the policy, as approved by the AER, on the retailer's 6
website as soon as practicable after it has been approved; and 7
(c) maintain and implement the policy. 8
Note-- This subsection is a civil penalty provision. 9
(3) If, as a result of the exercise of the AER's functions and powers under 10
section 204, the AER forms the view that a retailer's customer hardship 11
policy requires review-- 12
(a) the AER may direct the retailer to review the policy and make 13
variations in accordance with any requirements set out by the 14
AER; and 15
(b) the retailer must-- 16
(i) vary the policy in accordance with the AER's 17
requirements; and 18
(ii) submit it to the AER for approval under this Division; and 19
(iii) publish the policy, as approved by the AER, on the 20
retailer's website as soon as practicable after it has been 21
approved; and 22
(iv) maintain and implement the policy. 23
Note-- Subsection (3)(b) is a civil penalty provision. 24
(4) A retailer may vary its customer hardship policy independently of a 25
direction referred to in subsection (3) but only if the variation has been 26
approved by the AER under this Division and the varied policy has been 27
published on the retailer's website after the AER has approved the 28
variation under this Division. 29
(5) A reference in this Division to varying a customer hardship policy 30
extends to replacing a policy with another customer hardship policy. 31
44 Minimum requirements for customer hardship policy 32
The minimum requirements for a customer hardship policy of a retailer 33
are that it must contain-- 34
(a) processes to identify residential customers experiencing payment 35
difficulties due to hardship, including identification by the 36
retailer and self-identification by a residential customer; and 37
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(b) processes for the early response by the retailer in the case of 1
residential customers identified as experiencing payment 2
difficulties due to hardship; and 3
(c) flexible payment options (including a payment plan and 4
Centrepay) for the payment of energy bills by hardship 5
customers; and 6
(d) processes to identify appropriate government concession 7
programs and appropriate financial counselling services and to 8
notify hardship customers of those programs and services; and 9
(e) an outline of a range of programs that the retailer may use to 10
assist hardship customers; and 11
(f) processes to review the appropriateness of a hardship customer's 12
market retail contract in accordance with the purpose of the 13
customer hardship policy; and 14
(g) processes or programs to assist customers with strategies to 15
improve their energy efficiency, where such processes or 16
programs are required by a local instrument; and 17
(h) any variations specified or of a kind specified by the AER; and 18
(i) any other matters required by the Rules. 19
45 Approval of customer hardship policy or variation 20
(1) The AER must approve a customer hardship policy (or variation) 21
submitted to the AER for approval if the AER is satisfied that the policy 22
(or the policy as varied)-- 23
(a) contains the minimum requirements for a customer hardship 24
policy set out in section 44; and 25
(b) will or is likely to contribute to the achievement of the purpose 26
referred to in section 43(1). 27
(2) If it is not so satisfied, the AER may-- 28
(a) indicate to the retailer in what respects it considers the customer 29
hardship policy (or variation) as submitted is deficient and 30
request the retailer to submit another customer hardship policy 31
(or variation); or 32
(b) approve the customer hardship policy (or variation) with 33
alterations agreed to by the retailer so that the AER is satisfied as 34
to the matters referred to in subsection (1)(a) and (b). 35
(3) The AER must, in considering whether to approve a customer hardship 36
policy under subsection (1), have regard to the following principles: 37
(a) that the supply of energy is an essential service for residential 38
customers; 39
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(b) that retailers should assist hardship customers by means of 1
programs and strategies to avoid de-energisation (or 2
disconnection) solely due to an inability to pay energy bills; 3
(c) that de-energisation (or disconnection) of premises of a hardship 4
customer due to inability to pay energy bills should be a last 5
resort option; 6
(d) that residential customers should have equitable access to 7
hardship policies, and that those policies should be transparent 8
and applied consistently. 9
46 Obligation of retailer to communicate customer hardship policy 10
A retailer must, in accordance with the Rules, inform a residential 11
customer of the retailer's customer hardship policy where it appears to 12
the retailer that non-payment of an energy bill is due to the customer 13
experiencing payment difficulties due to hardship. 14
47 General principle regarding de-energisation (or disconnection) of 15
premises of hardship customers 16
A retailer must give effect to the general principle that de-energisation 17
(or disconnection) of premises of a hardship customer due to inability 18
to pay energy bills should be a last resort option. 19
48 Consistency of market retail contract with hardship policy 20
(1) This section applies if a residential customer who is on a market retail 21
contract is or becomes a hardship customer. 22
(2) The terms and conditions of the market retail contract have no effect to 23
the extent of any inconsistency with the application of the retailer's 24
customer hardship policy to that customer. 25
(3) The retailer must ensure that the customer may continue to be provided 26
with customer retail services under a customer retail contract in 27
accordance with the Rules. 28
49 Rules 29
(1) The Rules may make provision for or with respect to-- 30
(a) hardship customers; and 31
(b) the development, submission, approval, publication, 32
maintenance and implementation of customer hardship policies 33
and variations of customer hardship policies. 34
(2) The AEMC must, in addition to section 236, have regard to the purpose 35
set out in section 43(1) when making Rules as referred to in 36
subsection (1)(b). 37
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Division 7 Payment plans 1
50 Payment plans 2
(1) A retailer must offer and apply payment plans for-- 3
(a) hardship customers; and 4
(b) other residential customers experiencing payment difficulties if 5
the customer informs the retailer in writing or by telephone that 6
the customer is experiencing payment difficulties or the retailer 7
otherwise believes the customer is experiencing repeated 8
difficulties in paying the customer's bill or requires payment 9
assistance. 10
Note-- This subsection is a civil penalty provision. 11
(2) A retailer must comply with applicable requirements of the Rules 12
relating to payment plans including how they are offered, but need not 13
provide a payment plan in circumstances specified in the Rules. 14
51 Debt recovery 15
A retailer must not commence proceedings for the recovery of a debt 16
relating to the sale and supply of energy from a residential customer if-- 17
(a) the customer continues to adhere to the terms of a payment plan 18
or other agreed payment arrangement; or 19
(b) the retailer has failed to comply with the requirements of-- 20
(i) its customer hardship policy in relation to that customer; or 21
(ii) this Law and the Rules relating to non-payment of bills, 22
payment plans and assistance to hardship customers or 23
residential customers experiencing payment difficulties. 24
52 Rules 25
The Rules may make provision for or with respect to payment plans for 26
small customers. 27
Division 8 Energy marketing 28
Note-- The Telecommunications Act 1997, the Do Not Call Register Act 2006 and the 29
Australian Consumer Law set out in Schedule 2 to the Competition and Consumer Act 2010 30
of the Commonwealth may also apply to persons carrying out energy marketing activities. 31
53 Energy Marketing Rules 32
(1) The Rules may make provision for or with respect to the carrying out of 33
energy marketing activities. Any such rules are referred to as the 34
Energy Marketing Rules. 35
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(2) A person who carries out energy marketing activities must comply with 1
the Energy Marketing Rules. 2
Note-- This subsection is a civil penalty provision. 3
(3) Without limiting subsection (2), a failure of a person who is an associate 4
of a retailer or distributor to comply with the Energy Marketing Rules 5
is taken to be a failure of the retailer or distributor (as the case may be) 6
to comply with the Energy Marketing Rules. 7
Division 9 Deemed customer retail arrangements 8
54 Deemed customer retail arrangement for new or continuing customer 9
without customer retail contract 10
(1) An arrangement (a deemed customer retail arrangement) is taken to 11
apply between the financially responsible retailer for energised 12
premises and-- 13
(a) a move-in customer; or 14
(b) a carry-over customer. 15
(2) The deemed customer retail arrangement comes into operation when-- 16
(a) in the case of a move-in customer--the customer starts 17
consuming energy at the premises; or 18
(b) in the case of a carry-over customer--the customer's previously 19
current retail contract terminates. 20
(3) The deemed customer retail arrangement ceases to be in operation if a 21
customer retail contract is formed in relation to the premises, but this 22
subsection does not affect any rights or obligations that have already 23
accrued under the deemed customer retail arrangement. 24
(4) Subsection (1) does not apply where the customer consumes energy at 25
the premises by fraudulent or illegal means. 26
(5) If the customer consumes energy at the premises by fraudulent or illegal 27
means-- 28
(a) the customer is nevertheless liable to pay the standing offer prices 29
of the financially responsible retailer for the premises in respect 30
of the energy so consumed; and 31
(b) the financially responsible retailer may estimate and issue a bill 32
for the charges payable and recover those charges in accordance 33
with those standing offer prices as a debt in a court of competent 34
jurisdiction; and 35
(c) payment or recovery of any such charges is not a defence to an 36
offence relating to obtaining energy by fraudulent or illegal 37
means. 38
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(6) A move-in customer or carry-over customer is required to contact a 1
retailer and take appropriate steps to enter into a customer retail contract 2
as soon as practicable. 3
55 Terms and conditions of deemed customer retail arrangements 4
(1) The terms and conditions of a deemed customer retail arrangement are 5
the terms and conditions of the retailer's standard retail contract. 6
(2) The prices applicable to a deemed customer retail arrangement are the 7
retailer's standing offer prices. 8
(3) The Rules may make provision for or with respect to deemed customer 9
retail arrangements, and in particular may supplement or modify the 10
terms and conditions of deemed customer retail arrangements. 11
Division 10 Prepayment meter systems 12
56 Use of prepayment meter systems only in jurisdictions where permitted 13
(1) A person may sell energy using a prepayment meter system only within 14
jurisdictions where its use is permitted under subsection (2). 15
(2) A local instrument of a participating jurisdiction may permit the sale of 16
energy to small customers using a prepayment meter system within that 17
jurisdiction. 18
57 Contractual arrangements for use of prepayment meter systems 19
(1) A retailer may only provide customer retail services to small customers 20
using a prepayment meter system under a market retail contract. 21
(2) Accordingly, a retailer must not provide customer retail services to 22
small customers using a prepayment meter system under a standard 23
retail contract. 24
Note-- This section is a civil penalty provision. 25
58 Use of prepayment meter systems to comply with energy laws 26
(1) A retailer who provides customer retail services to a small customer 27
using a prepayment meter system must comply with the provisions of 28
the energy laws relating to the use of prepayment meter systems. 29
(2) Without limiting subsection (1), a retailer who provides customer retail 30
services to a small customer using a prepayment meter system must 31
ensure that the prepayment meter market retail contract complies with 32
the requirements for both-- 33
(a) market retail contracts set out in the Rules, except to the extent a 34
contrary intention is expressed in the Rules; and 35
(b) prepayment meter market retail contracts set out in the Rules. 36
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59 Persons on life support equipment 1
(1) A retailer must not enter into a prepayment meter market retail contract 2
with a small customer in relation to premises where one or more persons 3
require life support equipment. 4
Note-- This subsection is a civil penalty provision. 5
(2) If a small customer with a prepayment meter market retail contract in 6
relation to premises notifies the retailer that one or more persons at the 7
premises require life support equipment, the retailer must make 8
immediate arrangements for-- 9
(a) the removal of the prepayment meter system at no cost to the 10
small customer; and 11
(b) the installation of a standard meter at no cost to the small 12
customer; and 13
(c) the provision of information to the small customer about, and a 14
general description of, the customer retail contracts available to 15
the customer. 16
(3) In this section-- 17
installation of a standard meter to replace a prepayment meter system 18
includes the conversion of the prepayment meter system to a standard 19
operating mode so that the prepayment meter system operates as a 20
standard meter; 21
removal of a prepayment meter system includes rendering the system 22
non-operational; 23
standard meter, in relation to a particular small customer, means a 24
metering installation of the type that would ordinarily be installed at the 25
premises of the customer. 26
60 Rules 27
The Rules may make provision for or with respect to the provision of 28
customer retail services involving the use of a prepayment meter 29
system. 30
Division 11 AER Retail Pricing Information Guidelines and 31
price comparator 32
61 AER Retail Pricing Information Guidelines for presentation of standing 33
and market offer prices 34
(1) The AER may, in accordance with the retail consultation procedure, 35
make and amend guidelines (AER Retail Pricing Information 36
Guidelines). 37
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(2) The purpose of the AER Retail Pricing Information Guidelines is to 1
provide guidance to retailers in the presentation of standing offer prices 2
and market offer prices, and thereby assist small customers to consider 3
and compare standing offer prices and market offer prices offered by 4
retailers. 5
(3) Without limitation, the AER Retail Pricing Information Guidelines may 6
specify any or all of the following: 7
(a) the manner and form in which details of standing offer prices and 8
market offer prices are to be presented when publishing, 9
advertising or notifying the AER of those prices or any variation; 10
(b) the types of market offers to be provided for the purposes of the 11
price comparator, including without limitation, by reference to 12
areas, classes of small customers or tariff classes; 13
(c) any additional matters that the AER considers necessary or 14
convenient to assist customers to consider and compare standing 15
offer prices and market offer prices offered by retailers. 16
62 Price comparator 17
(1) This section applies in relation to this jurisdiction only if and to the 18
extent a local instrument of this jurisdiction declares that this section 19
applies in relation to this jurisdiction. 20
(2) The AER must develop and make available on a website a price 21
comparator. 22
(3) The purpose of a price comparator is to assist a small customer to 23
compare-- 24
(a) the standing offer price available to that customer; and 25
(b) market offer prices that are generally available to classes of small 26
customers in this jurisdiction, 27
in accordance with the AER Retail Pricing Information Guidelines. 28
(4) A price comparator must make clear to small customers that it only 29
provides a guide. 30
(5) A price comparator may, in addition to the information about the price 31
of the standing offers and market offers listed in the comparator, include 32
such other information as the AER considers will achieve the purpose 33
of a price comparator. 34
(6) Nothing in this Law prevents the AER developing and making available 35
a single price comparator for a jurisdiction that compares prices for the 36
provision of both electricity and gas. 37
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(7) The AER must update the price comparator information as soon as 1
practicable after a retailer informs the AER of any variations to the 2
retailer's standing offer price or relevant market offer price. 3
(8) In the development and updating of a price comparator, the AER must 4
undertake such consultation as it considers appropriate. 5
(9) A difference between information made available under a price 6
comparator and a retailer's standing offer price, market offer prices or 7
any variation to those prices does not affect the operation of that 8
retailer's prices or variations to those prices. 9
Note-- For example, there may be a delay in updating information on the price 10
comparator service. 11
63 AER information gathering powers for pricing guidelines and 12
comparator 13
A retailer must submit to the AER, in the manner and form (including 14
by the date or dates) required by the AER Retail Pricing Information 15
Guidelines, information and data relating to-- 16
(a) the presentation of standing offer prices and market offer prices 17
that are generally available to classes of small customers in a 18
jurisdiction (including any variation of the prices); and 19
(b) if and to the extent a local instrument of this jurisdiction so 20
declares--the purposes of a price comparator for this jurisdiction. 21
Notes-- 22
1 This section is a civil penalty provision. 23
2 The AER is subject to Division 3 of Part 8 of this Law and section 44AAF 24
of the Competition and Consumer Act 2010 of the Commonwealth in 25
respect of the disclosure of confidential information it receives. 26
Division 12 Large customers--responsibility for energy 27
consumed 28
64 Large customer consuming energy at premises 29
If a large customer consumes energy at premises without an appropriate 30
arrangement between the customer and a retailer for payment of charges 31
for the energy-- 32
(a) the financially responsible retailer is entitled to charge the 33
customer an amount for the energy at the rate the retailer 34
considers would have been charged had such an appropriate 35
arrangement been in place; and 36
(b) that amount, to the extent it is not paid to the retailer, is a debt 37
owing by the customer to the retailer and may be recovered in a 38
court of competent jurisdiction. 39
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Part 3 Relationship between distributors and 1
customers 2
Division 1 Preliminary 3
65 Application of this Part 4
This Part applies to the relationship between distributors and customers. 5
Note-- The term "customer" covers both small customers and large customers. 6
Division 2 Obligation to provide customer connection 7
services 8
66 Obligation to provide customer connection services 9
(1) A distributor must, subject to and in accordance with the energy laws, 10
provide customer connection services for the premises of a customer-- 11
(a) who requests those services; and 12
(b) whose premises are connected, or who is seeking to have those 13
premises connected, to the distributor's distribution system. 14
Note-- The Rules may provide that a retailer may arrange customer connection 15
services. 16
(2) The customer connection services must be provided to a customer in 17
accordance with the relevant customer connection contract. 18
Note-- This section is a civil penalty provision. 19
Division 3 Customer connection contracts generally 20
67 Kinds of customer connection contracts 21
There are 3 kinds of customer connection contracts, as follows: 22
(a) deemed standard connection contracts, which are for-- 23
(i) small customers; and 24
(ii) large customers for whom there is no applicable deemed 25
AER approved standard connection contract; 26
(b) deemed AER approved standard connection contracts, which are 27
for large customers; 28
(c) negotiated connection contracts, which are for small and large 29
customers. 30
Note-- Where a new connection or connection alteration is required, the 31
connection contract requirements are contained-- 32
(a) for electricity--in Chapter 5A of the NER; or 33
(b) for gas--in Part 12A of the NGR. 34
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Division 4 Deemed standard connection contracts 1
68 Model terms and conditions 2
The Rules must set out model terms and conditions for deemed standard 3
connection contracts (referred to in this Division as the model terms 4
and conditions). 5
69 Adoption of form of deemed standard connection contract 6
(1) Adoption and publication 7
A distributor must adopt a form of deemed standard connection contract 8
and publish it on the distributor's website. 9
Note-- This subsection is a civil penalty provision. 10
(2) Rules 11
The Rules may make provision for or with respect to the adoption, form 12
and contents of forms of deemed standard connection contracts, and in 13
particular may provide for the manner of adoption and publication of 14
forms of deemed standard connection contracts by distributors. 15
(3) Adoption without alteration except as permitted or required 16
A distributor's form of deemed standard connection contract-- 17
(a) must adopt the relevant model terms and conditions with no 18
alterations, other than permitted alterations or required 19
alterations; and 20
(b) if there are any required alterations--must include those required 21
alterations. 22
(4) Permitted alterations 23
Permitted alterations are-- 24
(a) alterations specifying details relating to identity and contact 25
details of the distributor; and 26
(b) minor alterations that do not change the substantive effect of the 27
model terms and conditions; and 28
(c) alterations of a kind specified or referred to in the Rules. 29
(5) Required alterations 30
Required alterations are-- 31
(a) alterations that the Rules require to be made to the distributor's 32
form of deemed standard connection contract in relation to 33
matters relating to specific jurisdictions; and 34
(b) alterations to a term or condition that is already adopted by the 35
distributor so as to make the adopted term or condition consistent 36
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with the model terms or conditions as currently required by the 1
Rules; and 2
(c) alterations of a kind specified or referred to in the Rules. 3
(6) Definition 4
In this section-- 5
alterations includes omissions and additions. 6
70 Formation of deemed standard connection contract 7
(1) A contract in the form of a distributor's deemed standard connection 8
contract under section 69 is taken to be entered into, by the distributor 9
and a customer, as set out in this section. 10
(2) In the case of a new connection or a connection alteration, a 11
distributor's form of deemed standard connection contract (including 12
any additional terms and conditions relating to the new connection or 13
connection alteration) takes effect as a contract between the distributor 14
and the customer on acceptance by the customer of the distributor's 15
connection offer in accordance with the requirements under-- 16
(a) in the case of electricity--Chapter 5A of the NER; or 17
(b) in the case of gas--Part 12A of the NGR. 18
(3) In the case of an existing connection that is not the subject of a 19
connection alteration, a distributor's form of deemed standard 20
connection contract takes effect as a contract between the distributor 21
and the customer when-- 22
(a) in the case of an existing connection at premises that are not 23
energised--the customer's premises become re-energised (or 24
reconnected); or 25
(b) in the case of an existing connection at premises that are 26
energised--the customer commences to take supply of energy at 27
those premises. 28
(4) In the case of an existing connection where-- 29
(a) a customer has been reclassified as a small customer for 30
particular premises; and 31
(b) a deemed AER approved standard connection contract applied in 32
relation to the customer and the same premises immediately 33
before the reclassification, 34
the deemed AER approved standard connection contract terminates and 35
the distributor's form of deemed standard connection contract takes 36
effect between the customer and the distributor when the customer 37
receives notice of the reclassification. 38
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(5) Subsections (2), (3) and (4) do not apply if a negotiated connection 1
contract already exists between the distributor and the customer in 2
relation to the premises concerned. 3
(6) Subsections (2) and (3) do not apply if the customer is a large customer 4
and there is a deemed AER approved standard connection contract 5
between the distributor and the customer in relation to the premises 6
concerned. 7
71 Obligations to comply with deemed standard connection contract and to 8
bill retailer 9
(1) A distributor must comply with the obligations imposed on the 10
distributor under the terms and conditions of a deemed standard 11
connection contract between the distributor and a customer. 12
Note-- This subsection is a civil penalty provision. 13
(2) Except in relation to a new connection or a connection alteration, a 14
distributor must not bill a small customer on a deemed standard 15
connection contract, but must render a statement of charges to the 16
customer's retailer in accordance with the energy laws. 17
72 Variation of deemed standard connection contract 18
(1) Variation of form of deemed standard connection contract--permitted 19
alterations 20
A distributor may vary the terms and conditions of the distributor's 21
form of deemed standard connection contract by making permitted 22
alterations. 23
(2) Variation of form of deemed standard connection contract--required 24
alterations 25
A distributor must vary the terms and conditions of the distributor's 26
form of deemed standard connection contract by making required 27
alterations, and must do so by the date specified in the relevant Rule 28
referred to in section 237(4). 29
(3) Permitted alterations 30
Permitted alterations are-- 31
(a) alterations specifying details relating to identity and contact 32
details of the distributor; and 33
(b) minor alterations that do not change the substantive effect of the 34
model terms and conditions; and 35
(c) alterations of a kind specified or referred to in the Rules. 36
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(4) Required alterations 1
Required alterations are-- 2
(a) alterations that the Rules require to be made to the distributor's 3
form of deemed standard connection contract in relation to 4
matters relating to specific jurisdictions; and 5
(b) alterations to a term or condition that is already adopted by the 6
distributor so as to make the adopted term or condition consistent 7
with the model terms or conditions as currently required by the 8
Rules; and 9
(c) alterations of a kind specified or referred to in the Rules. 10
(5) When variation takes effect on existing contracts 11
A variation of the distributor's form of deemed standard connection 12
contract takes effect as a variation of an existing standard connection 13
contract between the distributor and a customer on and from the date on 14
which the distributor publishes the variation on the distributor's 15
website. 16
(6) Definition 17
In this section-- 18
alterations includes omissions and additions. 19
73 Deemed standard connection contract to be consistent with model 20
terms and conditions 21
(1) The terms and conditions (whether original or varied) of a deemed 22
standard connection contract have no effect to the extent of any 23
inconsistency with the model terms and conditions as currently in force 24
or any required alterations. 25
(2) If there is such an inconsistency, the model terms and conditions or 26
required alterations (as the case requires) apply instead to the extent of 27
the inconsistency. 28
74 Duration of deemed standard connection contract 29
A deemed standard connection contract between a distributor and a 30
customer remains in force until-- 31
(a) a deemed AER approved standard connection contract or a 32
negotiated connection contract in respect of the premises comes 33
into force; or 34
(b) the deemed standard connection contract is terminated in 35
accordance with the terms and conditions of the contract. 36
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Division 5 Deemed AER approved standard connection 1
contracts 2
75 Submission and approval of form of standard connection contracts for 3
large customers 4
(1) A distributor may prepare and submit to the AER for approval one or 5
more proposed forms of standard connection contracts applicable to one 6
or more classes of large customers. 7
(2) The AER must determine to approve a proposed form of standard 8
connection contract submitted to it if it is satisfied that the terms and 9
conditions of the contract are fair and reasonable and comply with any 10
applicable requirements of the energy laws. 11
(3) The AER may determine not to approve a proposed form of standard 12
connection contract submitted to it if it is not so satisfied, but must 13
inform the distributor of the reasons for its dissatisfaction and may 14
indicate the kinds of changes that should be made before the contract is 15
resubmitted to it. 16
(4) On approval, the proposed form of standard connection contract 17
becomes the deemed AER approved standard connection contract for 18
the relevant class of large customers of the distributor for the purposes 19
of this Law. 20
(5) The AER must deal expeditiously with a proposed form of standard 21
connection contract submitted to it. 22
(6) A deemed AER approved standard connection contract must be 23
published on the distributor's website and is not operative until so 24
published. 25
(7) Without limitation, all large customers may constitute a class of large 26
customers. 27
76 Formation of deemed AER approved standard connection contract 28
(1) A customer connection contract in the form of a distributor's deemed 29
AER approved standard connection contract under section 75 is taken 30
to be entered into, by the distributor and a large customer of a class to 31
which the approved form applies, as set out in this section. 32
(2) In the case of a new connection or a connection alteration, a contract in 33
the form of a distributor's deemed AER approved standard connection 34
contract takes effect as a contract between the distributor and a large 35
customer of a class to which the approved form applies, on acceptance 36
by the customer of the distributor's connection offer in accordance with 37
the requirements under-- 38
(a) in the case of electricity--Chapter 5A of the NER; or 39
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(b) in the case of gas--Part 12A of the NGR. 1
(3) In the case of an existing connection that is not the subject of a 2
connection alteration, a distributor's form of deemed AER approved 3
standard connection contract takes effect as a contract between the 4
distributor and a large customer when-- 5
(a) in the case of an existing connection at premises that are not 6
energised--the customer's premises become re-energised (or 7
reconnected); or 8
(b) in the case of an existing connection at premises that are 9
energised--the customer commences to take supply of energy at 10
those premises. 11
(4) In the case of an existing connection where-- 12
(a) a customer has been reclassified as a large customer for particular 13
premises; and 14
(b) a deemed standard connection contract applied in relation to the 15
customer and the same premises immediately before the 16
reclassification, 17
the deemed AER approved standard connection contract for that class 18
of large customer takes effect between the customer and the distributor 19
when the customer receives notice of the reclassification. 20
(4a) In the case of an existing connection where-- 21
(a) a deemed standard connection contract applies in relation to a 22
large customer and particular premises; and 23
(b) a deemed AER approved standard connection contract for the 24
relevant class of large customers of the distributor is approved 25
and published under section 75, 26
the deemed AER approved standard connection contract takes effect 27
between the customer and the distributor when the customer receives 28
notice of the contract. 29
(5) Subsections (1)--(4a) do not apply if a negotiated customer connection 30
contract already exists between the distributor and the large customer in 31
relation to the premises concerned. 32
(6) Notice of the formation of the deemed AER approved standard 33
connection contract must be given to the large customer. 34
77 Amendment and replacement of form of deemed AER approved 35
standard connection contract 36
(1) A deemed AER approved standard connection contract may be replaced 37
by another deemed AER approved standard connection contract. 38
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(2) A deemed AER approved standard connection contract may be 1
amended from time to time and the provisions of this Division apply to 2
any such amendment and associated matters in the same way, with any 3
necessary modifications, as they apply to the preparation, submission 4
and approval of a deemed AER approved standard connection contract 5
and associated matters. 6
(3) Notice of a replacement or amended deemed AER approved standard 7
connection contract must be given to each affected large customer. 8
(4) A replacement or amended deemed AER approved standard connection 9
contract takes effect for a large customer when the customer is given 10
notice under subsection (3). 11
Division 6 Negotiated connection contracts 12
78 Negotiated connection contracts 13
(1) This section applies where a distributor and a small customer negotiate 14
and enter into a customer connection contract (a negotiated connection 15
contract) in accordance with the relevant requirements of-- 16
(a) in the case of electricity--Chapter 5A of the NER; or 17
(b) in the case of gas--Part 12A of the NGR, 18
including the requirements of the relevant negotiating framework. 19
(2) The distributor must provide-- 20
(a) information relating to the small customer's right to have a 21
deemed standard connection contract under Division 4; and 22
(b) an explanation of-- 23
(i) the differences between the terms and conditions of the 24
proposed negotiated connection contract and the terms and 25
conditions of a deemed standard connection contract; and 26
(ii) the implications of those differences. 27
(3) A negotiated connection contract operates to the exclusion of provisions 28
of a deemed standard connection contract dealing with the same 29
matters. 30
Note-- A retail customer may negotiate customer connection services for 31
electricity (under Chapter 5A of the NER) and for gas (under Part 12A of the 32
NGR). 33
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Part 4 Small customer complaints and dispute 1
resolution 2
79 Definitions 3
(1) In this Part-- 4
energy ombudsman constitution provisions means the provisions of-- 5
(a) legislation of a participating jurisdiction (other than national 6
energy legislation) or any instrument made or issued under or for 7
the purposes of that legislation; or 8
(b) a constitution, charter or other arrangements, 9
under which an energy ombudsman is established or constituted and 10
performs or exercises functions and powers in a participating 11
jurisdiction; 12
relevant matter means a matter arising between a small customer and a 13
retailer or distributor-- 14
(a) under or in connection with this Law, the National Regulations or 15
the Rules, including but not limited to a matter concerning any of 16
the following: 17
(i) the carrying out of an energy marketing activity by a 18
person; 19
(ii) a retailer's obligations before a customer retail contract is 20
formed (whether or not the contract is eventually formed); 21
(iii) a customer retail contract between a small customer and a 22
retailer; 23
(iv) a deemed standard connection contract between a small 24
customer and a distributor; 25
(v) a negotiated connection contract between a small customer 26
and a distributor; 27
(vi) a decision of a distributor under Division 3 of Part 7 in 28
relation to a customer's claim for compensation; or 29
(b) under or in connection with the NER or NGR concerning a new 30
connection or a connection alteration, 31
but does not include matters concerning the setting of tariffs and 32
charges of distributors or retailers. 33
Note-- Nothing in this Part prevents an energy ombudsman from dealing with 34
other disputes under the applicable energy ombudsman constitution provisions. 35
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(2) A reference in this Part to-- 1
(a) a small customer complaint is a reference to a complaint referred 2
to in section 82 or 83; and 3
(b) a small customer dispute is a reference to a dispute referred to in 4
section 83. 5
80 Role of energy ombudsman 6
(1) The relevant energy ombudsman for this jurisdiction may, as authorised 7
by the energy ombudsman constitution provisions of this jurisdiction, 8
perform and exercise, in relation to this jurisdiction, the functions and 9
powers conferred on the energy ombudsman by this Part and the Rules. 10
(2) This Part does not affect any other functions or powers that an energy 11
ombudsman has apart from this Law and the Rules. 12
81 Standard complaints and dispute resolution procedures 13
(1) Every retailer and every distributor must develop, make and publish on 14
its website a set of procedures detailing the retailer's or distributor's 15
procedures for handling small customer complaints and disputes, to be 16
known as its standard complaints and dispute resolution procedures. 17
(2) The procedures must be regularly reviewed and kept up to date. 18
(3) The procedures must be substantially consistent with the Australian 19
Standard AS ISO 10002-2006 (Customer satisfaction--Guidelines for 20
complaints handling in organizations) as amended and updated from 21
time to time. 22
82 Complaints made to retailer or distributor for internal resolution 23
(1) A small customer may make a complaint to a retailer or distributor 24
about a relevant matter, or any aspect of a relevant matter, concerning 25
the customer and the retailer or distributor. 26
(2) The retailer or distributor must deal with the complaint if it is made in 27
accordance with the retailer's or distributor's standard complaints and 28
dispute resolution procedures, including any time limits applicable 29
under those procedures for making a complaint. 30
(3) The complaint must be handled in accordance with the retailer's or 31
distributor's standard complaints and dispute resolution procedures, 32
including any time limits applicable under those procedures for 33
handling a complaint. 34
(4) The retailer or distributor must inform the small customer of the 35
outcome of the complaint process, and of the retailer's or distributor's 36
reasons for the decision regarding the outcome, as soon as reasonably 37
possible but, in any event, within any time limits applicable under the 38
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retailer's or distributor's standard complaints and dispute resolution 1
procedures. 2
(5) A retailer or distributor must inform a small customer-- 3
(a) that, if the customer is not satisfied with the outcome, the 4
customer may make a complaint or take a dispute to the energy 5
ombudsman; and 6
(b) of the telephone number and other contact details of the energy 7
ombudsman. 8
83 Complaints made or disputes referred to energy ombudsman 9
A small customer may-- 10
(a) make a complaint to the energy ombudsman about a relevant 11
matter, or any aspect of a relevant matter, concerning the 12
customer and a retailer or distributor; or 13
(b) refer a dispute to the energy ombudsman about a relevant matter, 14
or any aspect of a relevant matter, concerning the customer and a 15
retailer or distributor. 16
84 Functions and powers of energy ombudsman 17
(1) The energy ombudsman has the following functions and powers: 18
(a) to receive small customer complaints and disputes; 19
(b) to investigate those complaints and disputes; 20
(c) to facilitate the resolution of those complaints and disputes; 21
(d) to resolve those complaints and disputes; 22
(e) to identify and advise on systemic issues as a means of preventing 23
complaints and disputes. 24
(2) Those functions and powers are to be performed and exercised in 25
accordance with-- 26
(a) this Law and the Rules; and 27
(b) the energy ombudsman constitution provisions, including (but 28
not limited to)-- 29
(i) procedures for receiving, investigating and facilitating the 30
resolution of small customer complaints and disputes; and 31
(ii) any relevant monetary limit. 32
(3) The energy ombudsman may decline to investigate a small customer 33
complaint or dispute where the small customer concerned has not 34
provided the retailer or distributor with a reasonable opportunity to 35
address the complaint or dispute in accordance with the retailer's or 36
distributor's standard complaints and dispute resolution procedures. 37
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(4) Subsections (1) and (3) do not affect any functions or powers the energy 1
ombudsman has under the energy ombudsman constitution provisions 2
of this jurisdiction. 3
85 Information and assistance requirements 4
(1) A retailer or distributor must provide information and assistance 5
relating to a small customer complaint or dispute to the energy 6
ombudsman on request by the ombudsman. 7
(2) If there is a dispute as to the nature or scope of the information or 8
assistance to be provided, the retailer or distributor is to abide by the 9
decision of the ombudsman. 10
(3) The AER must share information with the energy ombudsman in 11
relation to small customer complaints and disputes. 12
86 Retailers and distributors to be members of scheme 13
(1) A retailer must-- 14
(a) be a member of, or subject to, an energy ombudsman scheme for 15
each jurisdiction where it sells energy to small customers or 16
engages in an energy marketing activity; and 17
(b) comply with the requirements of that scheme. 18
(2) A distributor must-- 19
(a) be a member of, or subject to, an energy ombudsman scheme for 20
each jurisdiction where it has small customers connected to its 21
distribution system; and 22
(b) comply with the requirements of that scheme. 23
(3) A retailer must not, in this jurisdiction, engage in the activity of selling 24
energy unless the retailer meets the requirements of subsection (1) in 25
relation to this jurisdiction. 26
(4) A distributor must not, in this jurisdiction, engage in the activity of 27
providing customer connection services unless the distributor meets the 28
requirements of subsection (2) in relation to this jurisdiction. 29
(5) In this section-- 30
energy ombudsman scheme means a scheme under which an energy 31
ombudsman operates. 32
87 Rules 33
(1) The Rules may make provision for or with respect to small customer 34
complaints and disputes. 35
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(2) Without limiting subsection (1), the Rules may make provision for or 1
with respect to a retailer's or distributor's standard complaints and 2
dispute resolution procedures, including their development, making, 3
publication, review, amendment and replacement. 4
Part 5 Authorisation of retailers and exempt seller 5
regime 6
Division 1 Prohibition on unauthorised selling of energy 7
88 Requirement for authorisation or exemption 8
(1) A person (the seller) must not, in this jurisdiction, engage in the activity 9
of selling energy to a person for premises unless-- 10
(a) the seller is the holder of a current retailer authorisation; or 11
(b) the seller is an exempt seller. 12
(2) Subsection (1) does not limit-- 13
(a) in the case of the sale of electricity--any requirement under 14
section 11(4) of the NEL relating to the purchasing of electricity 15
through a wholesale exchange; or 16
(b) in the case of the sale of gas-- 17
(i) any requirement under section 91LB of the NGL, as it 18
applies to this jurisdiction in relation to a user or 19
non-scheme pipeline user (within the meaning of the 20
NGL), to be registered (or exempted from registration) in 21
this jurisdiction in order to participate in a regulated retail 22
gas market; or 23
(ii) any requirement under section 91BJ of the NGL, as it 24
applies in relation to a declared wholesale gas market, to 25
be registered (or exempted from registration) in order to 26
participate in that market and to sell natural gas to 27
customers that has been transported through the relevant 28
declared transmission system; or 29
(iii) any requirement under section 91BRD of the NGL, as it 30
applies to a short term trading market, to be registered (or 31
exempted from registration) in order to participate in that 32
market. 33
(3) A person must not engage in an activity referred to in subsection (1) 34
unless the person has complied with any requirement referred to in 35
subsection (2) (to the extent that any such requirement applies in 36
relation to the person) (but nothing in this subsection requires a 37
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requirement under subsection (2) to be satisfied before the AER may 1
grant a retailer authorisation or confer an exemption under this Part). 2
Note-- This section is a civil penalty provision. 3
Division 2 Application for and issue of retailer authorisation 4
89 Applications 5
(1) A person may apply to the AER for a retailer authorisation. 6
(2) An application may be made by 2 or more persons acting in their 7
capacity as members of a partnership or joint venture. 8
(3) If an application is made under subsection (2), a reference to an 9
applicant under this Part will be taken to be a reference to the persons 10
who made the application jointly (and they may satisfy any criteria or 11
other requirement on a joint basis). 12
90 Entry criteria 13
(1) The entry criteria in relation to an application are as follows: 14
(a) the organisational and technical capacity criterion--the applicant 15
must have the necessary organisational and technical capacity to 16
meet the obligations of a retailer; 17
(b) the financial resources criterion--the applicant must have 18
resources or access to resources so that it will have the financial 19
viability and financial capacity to meet the obligations of a 20
retailer; 21
(c) the suitability criterion--the applicant must be a suitable person 22
to hold a retailer authorisation. 23
(2) The applicant must, in accordance with the AER Retailer Authorisation 24
Guidelines, provide such information to the AER as will demonstrate to 25
the AER that the applicant satisfies the entry criteria. 26
(3) The information must be provided in or with the application or, at the 27
request of or with the concurrence of the AER, by way of 28
supplementary advice. 29
(4) In considering the suitability criterion in relation to the application, the 30
AER may take into consideration such matters as it thinks relevant, 31
including, for example-- 32
(a) previous commercial dealings of the applicant and its associates; 33
and 34
(b) the standard of honesty and integrity shown in previous 35
commercial dealings of the applicant and its associates. 36
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(5) In this section-- 1
associate, in relation to a person, has the same meaning it would have 2
under Division 2 of Part 1.2 of the Corporations Act 2001 of the 3
Commonwealth if sections 13, 16(2) and 17 did not form part of that 4
Act. 5
91 Public notice and submissions 6
Before deciding an application, the AER must-- 7
(a) publish on the AER's website a notice-- 8
(i) setting out a copy of the application or giving details in 9
relation to the application; and 10
(ii) stating that written submissions about the application may 11
be made to the AER within a period of at least 20 business 12
days that is specified in the notice; and 13
(iii) containing such other information as the AER considers 14
appropriate; and 15
(b) consider all written submissions received by it within that period 16
before deciding whether to grant or refuse the application. 17
92 Deciding application 18
(1) The AER must decide whether to grant or refuse an application. 19
(2) Subject to section 170, the AER must grant the application if the AER 20
is satisfied-- 21
(a) that the applicant satisfies the entry criteria; or 22
(b) in a case where the AER imposes conditions relating to the 23
satisfaction of the entry criteria--that the applicant will satisfy 24
the entry criteria once those conditions are satisfied. 25
93 Conditions 26
(1) If the AER grants an application, the AER may impose conditions on 27
the retailer authorisation relating to the satisfaction of the entry criteria. 28
(2) A condition imposed under this section may provide that the retailer 29
authorisation only authorises the selling of energy to customers on or 30
after the condition is satisfied. 31
(3) The AER may amend or revoke any condition imposed under this 32
section. 33
Note-- See section 170 where the applicant is a failed retailer or an associate 34
of a failed retailer. 35
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94 Notice of decision to grant application 1
If the AER decides to grant an application, the AER must, as soon as 2
practicable, give the applicant a notice-- 3
(a) stating the decision; and 4
(b) stating that the applicant is authorised to sell electricity or gas, as 5
the case requires, when the retailer authorisation is issued under 6
section 96; and 7
(c) specifying the conditions (if any) that the AER has decided to 8
impose on the retailer authorisation under section 93(1) or 9
170(1)(b); and 10
(d) stating any other matter relevant to the grant of the retailer 11
authorisation. 12
95 Deemed refusal 13
(1) This section applies if the AER specifies conditions in a notice under 14
section 94. 15
(2) The AER is taken to have decided to refuse an application if, within-- 16
(a) the period of 20 business days after the day the notice is given by 17
the AER; or 18
(b) that period as extended by the AER, 19
the applicant has not given the AER a notice of acceptance of the 20
conditions specified by the AER or those conditions with changes to 21
which the AER has agreed. 22
(3) The AER is taken to have decided to refuse an application if, within-- 23
(a) the period of 3 months after the day the notice is given by the 24
AER; or 25
(b) that period as extended by the AER, 26
the applicant does not satisfy the AER that the conditions specified in 27
the notice have been met. 28
96 Issue and public notice of retailer authorisation 29
(1) This section applies if-- 30
(a) the AER decides to grant an application without conditions 31
relating to entry criteria; or 32
(b) the AER decides to grant an application with conditions relating 33
to entry criteria and, within-- 34
(i) the period of 3 months after the day the notice of the 35
AER's decision is given by the AER; or 36
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(ii) that period as extended by the AER, 1
the applicant satisfies the AER that the conditions specified in the 2
notice have been met. 3
(2) The AER must, as soon as practicable-- 4
(a) issue the retailer authorisation to the applicant; and 5
(b) publish a notice about the retailer authorisation on the AER's 6
website. 7
96A Retailer authorisation may be held jointly 8
(1) A retailer authorisation may be held jointly by 2 or more persons. 9
(2) If a retailer authorisation is held jointly by 2 or more persons, those 10
persons are jointly and severally liable to meet requirements imposed 11
under any of the energy laws. 12
97 Notice of refusal 13
(1) If the AER decides or is taken to have decided to refuse an application, 14
the AER must, as soon as practicable, give the applicant a notice stating 15
the decision and the reasons for the decision and indicating whether, and 16
(if so), how the entry criteria were not satisfied or will not be satisfied. 17
(2) If the AER decides or is taken to have decided to refuse an application, 18
the AER must, as soon as practicable, publish a notice on its website 19
stating-- 20
(a) that the application for a retailer authorisation was refused; and 21
(b) the name of the applicant; and 22
(c) any details relating to the application that the AER considers 23
appropriate. 24
98 Duration of retailer authorisation 25
A retailer authorisation continues in force until it is surrendered or 26
revoked. 27
99 Variation of retailer authorisation 28
(1) The AER may amend a retailer authorisation to make any alterations 29
requested by the retailer. 30
(2) In this section-- 31
alterations includes omissions and additions. 32
100 Form of energy authorised to be sold 33
(1) A retailer authorisation may authorise the sale of electricity or gas. 34
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(2) A retailer authorisation cannot be varied to change or add to the form of 1
energy that the applicant is authorised to sell to customers, as specified 2
in the notice under section 94. 3
(3) This section does not prevent an application for or the grant of another 4
retailer authorisation. 5
Division 3 Transfer of retailer authorisation 6
101 Transfer only by application 7
(1) A retailer authorisation may be transferred only under this Division. 8
(2) A purported transfer of a retailer authorisation not made under this 9
Division is of no effect. 10
102 Applying for transfer 11
(1) A retailer may apply to the AER to transfer the retailer's authorisation. 12
(2) The application must-- 13
(a) be made by the retailer and the proposed transferee; and 14
(b) include the information specified in the AER Retailer 15
Authorisation Guidelines as being required to be included in or 16
with an application for transfer of a retailer authorisation. 17
103 Deciding transfer application 18
(1) The AER must decide whether to grant or refuse the application. 19
(2) The application must not be granted unless the AER is satisfied that-- 20
(a) the proposed transferee satisfies the entry criteria; and 21
(b) arrangements relating to the transfer will appropriately manage 22
any issues concerning customers of the proposed transferor. 23
(3) The AER-- 24
(a) may impose conditions on granting the application; and 25
(b) must fix a time, no later than 6 months after deciding the 26
application, for the transfer to take effect. 27
(4) If the AER decides to refuse the application or impose a condition on 28
the transfer, the AER must, as soon as practicable, give the applicants 29
notice of the decision and the reasons for the decision. 30
(5) Without limitation, a condition may require the transferor or transferee 31
to comply with specified requirements of energy laws, with any 32
modifications specified in the condition. Any such requirement may 33
continue, to the necessary extent, to apply to the transferor after the 34
transfer of the authorisation. 35
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(6) The AER must advise AEMO and the distributors concerned where a 1
retailer authorisation is transferred. 2
(7) Despite section 38, the explicit informed consent of a small customer is 3
not required in relation to the transfer of a retailer's authorisation under 4
this Division. 5
(8) A transferor or transferee must comply with any conditions imposed on 6
the transferor or transferee under this section. 7
Note-- This subsection is a civil penalty provision. 8
104 Application of application process to transfers 9
The AER may determine that specified provisions of Division 2 are to 10
apply in relation to the proposed transferee in the same way as they 11
apply in relation to an application for a retailer authorisation, and those 12
provisions apply accordingly with any necessary modifications. 13
104A Change in legal structures 14
(1) For the purposes of this Division, if a retailer authorisation is held 15
jointly by 2 or more persons as members of a partnership or joint 16
venture, a change in the persons constituting the partnership or joint 17
venture (as the case may be) will be taken to be a transfer of the retailer 18
authorisation. 19
(2) The AER may, in a case where subsection (1) applies-- 20
(a) require that an application be made in accordance with the AER 21
Retailer Authorisation Guidelines (including as to the provision 22
of information); and 23
(b) apply this Division in relation to any such application according 24
to such modifications as the AER may determine to be 25
appropriate in the circumstances. 26
Division 4 Surrender of retailer authorisation 27
105 Surrender of retailer authorisation 28
(1) A retailer may surrender its retailer authorisation only if the AER has, 29
on the retailer's application, decided to approve the surrender. 30
(2) The application must provide the information required by the AER 31
Retailer Authorisation Guidelines. 32
(3) The AER may decide to approve the surrender if the AER is satisfied 33
that arrangements relating to the surrender will appropriately manage 34
the transfer of any retail customers. 35
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(4) In deciding to approve the surrender of a retailer authorisation, the 1
AER-- 2
(a) may, after consulting AEMO, impose conditions for the transfer 3
of customers to another retailer; and 4
(b) must fix a time, no later than 6 months after deciding the 5
application, for the surrender to take effect. 6
(5) Without limitation, a condition may require the surrendering retailer (or 7
former retailer) to abide by specified requirements of energy laws, with 8
any modifications specified in the condition. Any such requirement may 9
continue, to the extent necessary, to apply to the retailer after the 10
surrender of the retailer authorisation. 11
(6) The AER must publish on its website a copy of its decision to approve 12
the surrender of the retailer authorisation, including the reasons and any 13
conditions that are imposed. 14
(7) The AER must advise AEMO and the distributors concerned where a 15
retailer authorisation is surrendered. 16
(8) Despite section 38, the explicit informed consent of a small customer is 17
not required in relation to the surrender of a retailer authorisation under 18
this Division. 19
(9) A surrendering retailer (or former retailer) must comply with any 20
conditions imposed on the surrendering retailer (or former retailer) 21
under this section. 22
Note-- This subsection is a civil penalty provision. 23
106 Transfer of customers following surrender 24
A person whose retailer authorisation is surrendered must comply with 25
the requirements of conditions imposed for the transfer of the person's 26
former customers to another retailer. 27
Note-- This section is a civil penalty provision. 28
Division 5 Revocation of retailer authorisation 29
Note-- This Division does not apply where a RoLR notice is issued under Part 6: see 30
section 142(2). 31
107 Power to revoke retailer authorisation 32
(1) The AER may decide to revoke a retailer authorisation in accordance 33
with this Division. 34
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(2) The grounds for revocation of a retailer's authorisation are-- 1
(a) that the retailer-- 2
(i) in the case of electricity--is in breach of a requirement 3
referred to in section 88(2)(a); or 4
(ii) in the case of gas--is in breach of a requirement referred 5
to in section 88(2)(b); or 6
(b) that the AER is satisfied that there has been a material failure by 7
the retailer to meet the obligations of a retailer under the energy 8
laws, which creates a reasonable apprehension that the retailer 9
will not be able to meet its obligations under this Law, the 10
National Regulations or the Rules in the future. 11
(3) A retailer authorisation may not be revoked unless the revocation 12
process has been completed. 13
(4) The AER may commence the revocation process in relation to a retailer 14
authorisation if the AER reasonably considers that the grounds for 15
revocation exist. 16
Note-- The revocation process is set out in section 120. 17
108 Transfer of customers following revocation 18
A person whose retailer authorisation has been revoked must comply 19
with the requirements of conditions imposed for the transfer to another 20
retailer of the persons who were its customers immediately before the 21
revocation. 22
Note-- This section is a civil penalty provision. 23
Division 6 Exemptions 24
109 Definitions 25
In this Division-- 26
exempt customer means a person to whom an exempt seller sells energy 27
and who would be a retail customer of the seller if the seller were a 28
retailer; 29
retail customer means a person who is a customer of a retailer. 30
110 Power to exempt 31
(1) The AER may decide to exempt persons or classes of persons in 32
accordance with the Rules from the requirement to hold a retailer 33
authorisation. 34
(2) There are 3 kinds of exemptions provided for in the Rules, as follows: 35
(a) individual exemptions; 36
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(b) deemed exemptions; 1
(c) registrable exemptions (which become registered exemptions in 2
respect of particular persons when the persons are registered 3
under the Rules). 4
(3) An exemption of a class of persons may be made so as to operate 5
(subject to the terms of the exemption)-- 6
(a) in respect of all the members of the class; or 7
(b) in respect only of those members of the class who are, on 8
application, registered in the Public Register of Authorised 9
Retailers and Exempt Sellers in relation to the exemption. 10
(4) A person is an exempt seller for the purposes of this Part while an 11
exemption is in force in relation to the person. 12
111 Power to revoke exemption 13
(1) The AER may decide to revoke (in relation to a particular exempt 14
seller)-- 15
(a) an individual exemption; or 16
(b) an exemption under a deemed exemption; or 17
(c) a registered exemption, 18
in accordance with this section. 19
(2) The grounds for revocation of an exempt seller's exemption are that the 20
AER is satisfied that there has been a material failure by the seller to 21
meet the conditions imposed on the exempt seller. 22
(3) An exemption may not be revoked unless the revocation process has 23
been completed. 24
(4) The AER may commence the revocation process in relation to an 25
exempt seller's exemption if the AER reasonably considers that the 26
grounds for revocation exist. 27
Note-- The revocation process is set out in section 120. 28
112 Conditions 29
(1) The AER may impose conditions on an exempt seller or class of exempt 30
sellers in accordance with the Rules and the AER Exempt Selling 31
Guidelines. 32
(2) An exempt seller must comply with applicable conditions imposed 33
under this section. 34
Note-- This subsection is a civil penalty provision. 35
(3) The AER may deal with a breach of a condition imposed under this 36
section as if it were a breach of the Rules. 37
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113 Rules 1
The Rules may make provision for or with respect to-- 2
(a) the exemption of persons or classes of persons from the 3
requirement to hold a retailer authorisation; and 4
(b) the variation or revocation of exemptions. 5
114 Manner in which AER performs AER exempt selling regulatory functions 6
or powers 7
(1) The AER must, in performing or exercising an AER exempt selling 8
regulatory function or power, take into account the following policy 9
principles: 10
(a) regulatory arrangements for exempt sellers should not 11
unnecessarily diverge from those applying to retailers; 12
(b) exempt customers should, as far as practicable, be afforded the 13
right to a choice of retailer in the same way as comparable retail 14
customers in the same jurisdiction have that right; 15
(c) exempt customers should, as far as practicable, not be denied 16
customer protections afforded to retail customers under this Law 17
and the Rules. 18
(2) The AER may, in performing or exercising an AER exempt selling 19
regulatory function or power, take into account-- 20
(a) the exempt seller related factors (see section 115); and 21
(b) the customer related factors (see section 116), 22
if the AER considers it appropriate to do so. 23
(3) The AER may give such weight to any aspect of the policy principles, 24
the exempt seller related factors and the customer related factors as it 25
considers appropriate in all the circumstances. 26
115 Exempt seller related factors 27
(1) The exempt seller related factors are as follows: 28
(a) whether selling energy is or will be a core part of the exempt 29
seller's business or incidental to that business; 30
(b) whether the exempt seller's circumstances demonstrate specific 31
characteristics that may warrant exemption; 32
(c) whether the exempt seller is intending to profit from the 33
arrangement; 34
(d) whether the amount of energy likely to be sold by the exempt 35
seller is significant in relation to national energy markets; 36
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(e) the extent to which the imposition of conditions on an exemption, 1
or to which the requirements of other laws, would allow 2
appropriate obligations to govern the applicant's behaviour 3
rather than requiring the applicant to obtain a retailer 4
authorisation; 5
(f) the likely cost of obtaining a retailer authorisation and of 6
complying with this Law and the Rules as a retailer compared to 7
the likely benefits to the exempt customers of the exempt seller; 8
(g) any other seller related matter the AER considers relevant. 9
(2) In this section-- 10
exempt seller includes an applicant for an exemption under this 11
Division. 12
116 Customer related factors 13
The customer related factors are as follows: 14
(a) whether the characteristics of the exempt customers or the 15
circumstances in which energy is to be sold to them by the 16
applicant are such as to warrant exemption; 17
(b) the extent to which the imposition of conditions on an exemption, 18
or to which the requirements of other laws, would allow the 19
exempt customers access to appropriate rights and protections 20
rather than requiring the applicant to obtain a retailer 21
authorisation; 22
(c) any other customer related matter the AER considers relevant. 23
Division 7 Miscellaneous 24
117 AER Retailer Authorisation Guidelines 25
(1) The AER must make guidelines (AER Retailer Authorisation 26
Guidelines) in accordance with the retail consultation procedure-- 27
(a) specifying information that is required to be included in an 28
application for a retailer authorisation; and 29
(b) indicating, for the guidance of applicants for retailer 30
authorisations, how the AER will apply the entry criteria for an 31
applicant for a retailer authorisation; and 32
(c) providing, for the guidance of the holders of retailer 33
authorisations, information about-- 34
(i) the surrender or transfer of retailer authorisations; and 35
(ii) the revocation of retailer authorisations; and 36
(d) concerning any other matters specified in the Rules. 37
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(2) The AER may amend the AER Retailer Authorisation Guidelines in 1
accordance with the retail consultation procedure. 2
118 AER Exempt Selling Guidelines 3
(1) The AER must, in accordance with the Rules, develop and maintain 4
guidelines (AER Exempt Selling Guidelines) in accordance with the 5
retail consultation procedure-- 6
(a) providing information about exemptions from the requirement to 7
hold a retailer authorisation; and 8
(b) concerning any other matters specified in the Rules. 9
(2) The Rules may make provision for or with respect to the AER Exempt 10
Selling Guidelines. 11
(3) The AER may amend the AER Exempt Selling Guidelines in 12
accordance with the retail consultation procedure. 13
119 Public Register of Authorised Retailers and Exempt Sellers 14
The AER must maintain, and publish on its website, a Public Register 15
of Authorised Retailers and Exempt Sellers, which-- 16
(a) must include particulars of authorised retailers and exempt 17
sellers, and other particulars, as required by the Rules; and 18
(b) may include other particulars or information as permitted by the 19
Rules. 20
120 Revocation process--retailer authorisations and exemptions 21
(1) This section sets out the revocation process in relation to a retailer 22
authorisation or an exempt seller's exemption (see sections 107 and 23
111), and in this section-- 24
(a) the term holder refers to the retailer or exempt seller; and 25
(b) the term authorisation refers to the retailer's retailer 26
authorisation; and 27
(c) the term exemption refers to the exempt seller's exemption. 28
(2) The AER must give the holder a notice that it intends to revoke the 29
authorisation or exemption. 30
(3) The notice must set out the reasons why the AER considers that the 31
grounds for revocation exist. 32
(4) The notice must request the holder to respond to the notice in writing 33
(by a date and time specified in the notice, being a date not less than 34
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10 business days after the date of service of the notice) by doing either 1
or both of the following: 2
(a) showing cause why the AER should not revoke the authorisation 3
or exemption; 4
(b) stating how the holder proposes to address the matters set out in 5
the notice. 6
(5) If, by the date and time referred to in the notice, the holder has not 7
shown sufficient cause why the AER should not revoke the 8
authorisation or exemption, the AER may revoke the authorisation or 9
exemption if-- 10
(a) the holder has, by that date and time, stated how the holder 11
proposes to address the matters set out in the notice but the AER 12
is not satisfied that the holder can rectify the matters set out in the 13
notice; or 14
(b) the holder has, by that date and time, failed to state how the 15
holder proposes to address the matters set out in the notice. 16
(6) Without limiting subsection (5), the AER may revoke the authorisation 17
or exemption if-- 18
(a) the holder has, by the date and time referred to in the notice, 19
informed the AER how the holder proposes to address the matters 20
set out in the notice (including the date by which those matters 21
will have been addressed); and 22
(b) the holder fails to rectify those matters after being given a 23
reasonable opportunity to do so or otherwise by the date 24
nominated by the holder under paragraph (a). 25
(7) The AER-- 26
(a) must fix a time for the revocation to take effect; and 27
(b) may, after consulting AEMO, impose conditions on the transfer 28
of customers to another retailer or exempt seller. 29
(8) Without limitation, a condition may require the holder (or former 30
holder) to comply with specified requirements of energy laws, with any 31
modifications specified in the condition. Any such requirement may 32
continue, to the extent necessary, to apply to the holder (or former 33
holder) after the revocation of the authorisation or exemption. 34
(9) The AER must publish on its website a copy of its decision to revoke 35
the authorisation or exemption, including the reasons and any 36
conditions that are imposed. 37
(10) The AER must advise AEMO and the distributors concerned where an 38
authorisation or exemption is revoked. 39
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(11) A holder (or former holder) must comply with any conditions imposed 1
on the holder (or former holder) under this section. 2
Note-- This subsection is a civil penalty provision. 3
Part 6 Retailer of last resort scheme 4
Division 1 Preliminary 5
121 Purpose of this Part 6
This Part establishes a retailer of last resort scheme (the RoLR scheme). 7
122 Definitions 8
In this Part-- 9
additional RoLR--see section 126; 10
AER RoLR Guidelines--see section 135; 11
applicable access arrangement means an applicable access 12
arrangement within the meaning of the NGL; 13
connection point has the same meaning as it has in the NER; 14
default RoLR means a retailer appointed and registered as a default 15
RoLR under Division 2; 16
designated RoLR means a registered RoLR who is appointed or is taken 17
to be appointed as a designated RoLR under Division 4 for a RoLR 18
event; 19
distribution determination means a distribution determination within 20
the meaning of the NEL; 21
failed retailer means a retailer (or former retailer) in relation to whom 22
a RoLR event has occurred; 23
financial information--see section 130(4)(a); 24
insolvency official means a receiver, receiver and manager, 25
administrator, provisional liquidator, liquidator, trustee in bankruptcy 26
or person having a similar or analogous function; 27
member of its marketing staff, in relation to a RoLR, means a person 28
who is an officer, employee, consultant, independent contractor or agent 29
of the RoLR and who is directly involved in the sale, marketing or 30
advertising of customer retail services provided by the RoLR, but does 31
not include such a person if-- 32
(a) the person's function or role is only to provide technical, 33
administrative, legal or accounting services; or 34
(b) the sale, marketing or advertising of those services is only an 35
incidental part of the person's function or role; 36
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registered RoLR means a retailer registered as a RoLR under 1
section 127; 2
relevant designated RoLR for a customer, in relation to a RoLR event, 3
means-- 4
(a) if only one RoLR is designated for the event--that RoLR; or 5
(b) if more than one RoLR is designated for the event--the RoLR 6
allocated to the customer; 7
RoLR means a retailer of last resort; 8
RoLR cost recovery scheme--see Division 9; 9
RoLR cost recovery scheme distributor payment determination--see 10
section 167; 11
RoLR criteria--see section 123; 12
RoLR event, in relation to a retailer, means any of the following events 13
or circumstances: 14
(a) the revocation of the retailer's retailer authorisation; 15
(b) in the case of electricity-- 16
(i) the right of the retailer to acquire electricity from the 17
wholesale exchange is suspended; or 18
(ii) the retailer ceases to be a Registered participant in relation 19
to the purchase of electricity directly through the 20
wholesale exchange, as required by section 11(4) of the 21
NEL; 22
(c) in the case of gas-- 23
(i) the right of the retailer to acquire gas either in the declared 24
wholesale gas market or in the short term trading market is 25
suspended; or 26
(ii) the retailer's registration as a Registered participant, in 27
relation to the declared wholesale gas market or a short 28
term trading market, is revoked; or 29
(iii) where there is no declared wholesale gas market or short 30
term trading market, the retailer's registration as a 31
Registered participant in a retail gas market is revoked; 32
(d) an insolvency official is appointed in respect of the retailer or any 33
property of the retailer; 34
(e) an order is made for the winding up of the retailer or a resolution 35
is passed for the winding up of the retailer; 36
(f) the cessation of the sale of energy by the retailer to customers, 37
otherwise than by-- 38
(i) transfer of its retailer authorisation in accordance with 39
Division 3 of Part 5; or 40
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(ii) surrender of its retailer authorisation in accordance with 1
Division 4 of Part 5; or 2
(iii) transfer of all or some of its customers to another retailer; 3
or 4
(iv) selling or otherwise disposing in whole or in part its 5
business of the sale of energy (being the activity to which 6
the retailer's authorisation relates) to another retailer; 7
(g) any other event or circumstance prescribed by the National 8
Regulations; 9
RoLR notice--see section 136; 10
RoLR Procedures--see section 144; 11
RoLR register EoI--see section 124; 12
RoLR regulatory information notice--see section 151; 13
RoLR scheme means the scheme constituted by-- 14
(a) this Part; and 15
(b) the RoLR Procedures; and 16
(c) the National Regulations; 17
transfer date for the customers of a failed retailer--see 18
section 136(2)(e); 19
wholesale exchange for electricity means the wholesale exchange 20
operated and administered by AEMO under the NEL and NER. 21
Division 2 Registration of RoLRs 22
123 RoLR criteria 23
(1) The RoLR criteria in relation to a retailer are as follows: 24
(a) the organisational and technical capacity criterion--the extent to 25
which the retailer has the necessary organisational and technical 26
capacity to meet the obligations of a RoLR, either by-- 27
(i) having adequate systems in place for that purpose; or 28
(ii) being able to implement adequate systems in a timely 29
manner for that purpose; 30
(b) the financial resources criterion--the extent to which the retailer 31
has adequate resources or access to adequate resources so that it 32
will have the financial viability and financial capacity to meet the 33
obligations of a RoLR; 34
Note-- One matter to take into consideration under this criteria may be 35
whether a retailer has hedging contracts adequate for it to be a RoLR. 36
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(c) the suitability criterion--whether the retailer is a suitable person 1
to be a RoLR, taking into consideration-- 2
(i) the number of customers the retailer has; and 3
(ii) the class or classes of customers the retailer has; and 4
(iii) the area or areas that the retailer currently serves; and 5
(iv) in the case of gas and where there is no declared wholesale 6
gas market or short term trading market--whether and to 7
what extent the retailer has-- 8
(A) gas available to it by means of a distribution 9
pipeline; and 10
(B) capacity available to it on that distribution pipeline 11
and any relevant transmission pipeline, 12
sufficient for it to be a RoLR; 13
(d) any other relevant matters specified in the energy laws; 14
(e) any other matters the AER considers relevant in the 15
circumstances. 16
(2) In this section, transmission pipeline and distribution pipeline have the 17
same meanings as they have in the NGL. 18
124 Expressions of interest for registration as a RoLR 19
(1) The AER must both initially and afterwards at such times as it considers 20
appropriate call for an expression of interest (RoLR register EoI) from 21
retailers for registration as a RoLR. 22
(2) A RoLR register EoI may be lodged by a retailer with the AER either in 23
response to an AER call for expressions of interest or at any other time. 24
(3) A RoLR register EoI must contain such information as will enable the 25
AER to take the RoLR criteria into consideration in relation to the 26
retailer and otherwise be in accordance with the AER RoLR Guidelines. 27
(4) A RoLR register EoI may contain proposals as to-- 28
(a) customers or classes of customers the retailer will accept as its 29
customers if it were to be appointed a designated RoLR in respect 30
of a RoLR event; and 31
(b) numbers of customers the retailer will accept if it were to be 32
appointed a designated RoLR in respect of a RoLR event; and 33
(c) variation to the retailer's RoLR cost recovery scheme. 34
(5) Subsections (3) and (4) do not limit the information that may be 35
included in a RoLR register EoI or the proposals that a retailer may 36
make in that expression of interest. 37
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(6) The AER may, after receipt of a RoLR register EoI, request from the 1
retailer such additional information as the AER considers reasonably 2
necessary for it to make a decision with respect to the RoLR register 3
EoI. The retailer must comply with any such request. 4
(7) The AER must publish a notice of each RoLR register EoI on its 5
website. 6
125 Appointment and registration as a default RoLR 7
(1) The AER must appoint and register a default RoLR for-- 8
(a) in the case of electricity--each connection point; and 9
(b) in the case of gas--each distribution system of each distributor. 10
(2) The AER must ensure that there is one and no more than one default 11
RoLR registered for each connection point (in the case of electricity) 12
and for each distribution system (in the case of gas) at all times. 13
(3) Lodgement of a RoLR register EoI is not a precondition to the AER 14
appointing and registering a retailer as a default RoLR although if the 15
AER proposes to appoint and register a retailer as a default RoLR 16
without a RoLR register EoI first being lodged, the AER must consult 17
with the retailer before appointing and registering the retailer. 18
(4) A retailer that the AER proposes to appoint and register as a default 19
RoLR must provide the AER with such information as the AER 20
considers reasonably necessary to make the appointment and register 21
the retailer as a default RoLR. 22
(5) A retailer's concurrence is not required for appointment and registration 23
as a default RoLR. 24
(6) The AER must take the RoLR criteria into consideration when deciding 25
whether to appoint and register a retailer as a default RoLR. 26
(7) The AER must not appoint and register a retailer as a default RoLR if 27
the retailer does not satisfy all the requirements of the RoLR criteria 28
unless otherwise there would be no default RoLR for a connection point 29
(in the case of electricity) or a distribution system (in the case of gas) 30
and the AER is satisfied that the retailer most nearly satisfies the 31
financial resources criterion (see section 123(1)(b)). 32
(8) If a retailer does not, at the time of registration as a default RoLR, meet 33
the organisational and technical capacity criterion (see section 34
123(1)(a)), the retailer must as soon as practicable after registration 35
implement adequate systems to meet that criterion and advise the AER 36
when those systems are implemented. 37
(9) The AER may terminate a retailer's appointment and registration as a 38
default RoLR at any time, but is not obliged to do so. 39
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(10) The AER must publish on its website notice of any appointment of a 1
default RoLR or termination of an appointment under this section. 2
(11) A retailer is not entitled to be appointed and registered as a default 3
RoLR even though it satisfies (or appears to satisfy) the RoLR criteria. 4
126 Registration of additional RoLRs 5
(1) The AER may register one or more retailers as an additional RoLR for 6
a connection point (in the case of electricity) or a distribution system (in 7
the case of gas). 8
(2) The AER must take the RoLR criteria into consideration when deciding 9
whether to register a retailer as an additional RoLR. 10
(3) The AER must not register a retailer as an additional RoLR unless the 11
retailer has lodged a RoLR register EoI. 12
(4) A retailer registered as an additional RoLR may be registered as a RoLR 13
in addition to the default RoLR registered for the connection point or 14
distribution system concerned. 15
(5) A retailer who, in the case of electricity, is a default RoLR for a 16
connection point may be registered as an additional RoLR for any 17
connection point for which it is not the default RoLR. 18
(6) A retailer who, in the case of gas, is a default RoLR for a distribution 19
system may be registered as an additional RoLR for any distribution 20
system for which it is not the default RoLR. 21
(7) The AER may at the same time as it registers a retailer as an additional 22
RoLR, and if the retailer consents, impose conditions as to-- 23
(a) customers or classes of customers that may be transferred to the 24
retailer as its customers if it is appointed a designated RoLR in 25
respect of a RoLR event; and 26
(b) numbers of customers that may be transferred to the retailer if it 27
is appointed a designated RoLR in respect of a RoLR event; and 28
(c) variations of the retailer's RoLR cost recovery scheme. 29
(8) Subsection (7) does not limit the conditions that the AER may impose 30
with the retailer's consent. 31
(9) A retailer is not entitled to registration as an additional RoLR even 32
though it satisfies or appears to satisfy the RoLR criteria. 33
(10) The AER must publish on its website notice of registration of an 34
additional RoLR. 35
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127 Register of RoLRs 1
(1) The AER must maintain, and publish on its website, a register of RoLRs 2
(the RoLR register) which-- 3
(a) must include particulars of RoLRs registered under this Division, 4
including-- 5
(i) whether the RoLR is registered as a default RoLR (and, if 6
so, for which connection points or distribution systems); 7
and 8
(ii) whether the RoLR is registered as an additional RoLR 9
(and, if so, what conditions apply to its registration); and 10
(b) may include other particulars or information the AER considers 11
necessary or desirable. 12
(2) If the AER registers a retailer as a RoLR, it must enter the particulars of 13
the retailer on the RoLR register. 14
(3) If the AER decides to terminate the registration of a retailer as a RoLR, 15
it must remove the particulars of the retailer from the RoLR register. 16
Termination and removal of a retailer from the RoLR register (or, in the 17
case of a default RoLR, termination of its appointment and registration 18
as a default RoLR and removal from the register) does not affect any 19
accrued rights or obligations that the retailer had by reason of its 20
registration. 21
(4) A RoLR whose particulars are entered on the RoLR register is a 22
registered RoLR for so long as its particulars remain on the RoLR 23
register. 24
128 Termination of registration as a RoLR 25
(1) The registration of a RoLR (other than a default RoLR) may be 26
terminated in either of the following ways: 27
(a) the registered RoLR applying to the AER pursuant to this section 28
for its registration to be terminated; 29
(b) the AER giving to the registered RoLR a notice to show cause 30
why its registration should not be terminated. 31
(2) If the AER gives a retailer a notice to show cause under subsection 32
(1)(b), the notice must state that any submissions by the registered 33
RoLR must be made to the AER within a specified period of at least 34
20 business days. 35
(3) The AER must publish on its website-- 36
(a) a notice of any application under subsection (1)(a); and 37
(b) any notice to show cause under subsection (1)(b). 38
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(4) Any such notice published on the AER website must invite submissions 1
on the application or the notice to show cause within a specified period 2
of at least 20 business days. 3
(5) The AER may, after considering any submissions made to it, terminate 4
the RoLR's registration. 5
(6) If the AER terminates the RoLR's registration, it must publish notice of 6
the termination on its website. 7
129 New basis for registration as a RoLR 8
(1) If AEMO advises the AER that a RoLR may be registered on a basis 9
other than for a connection point (in the case of electricity) or a 10
distribution system (in the case of gas), the AER may register the RoLR 11
on that basis (the new basis). 12
Note-- There still must be (disregarding any failed retailer) no more than one 13
default RoLR for the matter or thing that comprises the new basis for 14
registration. 15
(2) Notice of the new basis for registration must be published by the AER 16
on its website. 17
(3) References in this Division to a connection point (in the case of 18
electricity) or a distribution system (in the case of gas) are taken to 19
include a reference to any new basis for registration. 20
Division 3 Contingency events 21
130 AER's powers 22
(1) If the AER receives notice of or otherwise becomes aware of any event, 23
circumstance or matter that it has reason to believe may or will affect, 24
or give rise to some risk of affecting, continuity of the sale of energy to 25
a retailer's customers, the AER may act under this Division. 26
(2) Events, circumstances or matters for the purposes of this Division 27
include (without limitation) any of the following: 28
(a) the events and circumstances that constitute a RoLR event; 29
(b) any material default by the retailer in provision of required credit 30
support to a distributor under the NER or NGR as appropriate; 31
(c) any material default by the retailer in payment of network 32
charges; 33
(d) any other material default by the retailer with respect to its 34
obligations under energy laws with respect to the payment of 35
money, the provision of securities or otherwise of a financial 36
nature. 37
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(3) It is not a prerequisite for the AER to act under this Division that an 1
event, circumstance or matter has come into existence, and the AER 2
may instead so act if it has reason to believe that there is some risk that 3
the event, circumstance or matter may come into existence. 4
(4) In acting under this Division the AER may do any of the following: 5
(a) request information (financial information) from the retailer 6
including (but not limited to) any of the following: 7
(i) details of any parent company guarantees; 8
(ii) details of cash flow; 9
(iii) details of amounts owing to distributors; 10
(iv) details of the retailer's current financial position together 11
with the most recent financial statements of the retailer; 12
(b) subject to and in accordance with the confidentiality provisions 13
applicable to this Division-- 14
(i) consult with AEMO; and 15
(ii) for that purpose disclose some or all of the financial 16
information to AEMO and its officers or employees. 17
(5) If the AER has reason to believe that there is a risk of a RoLR event, the 18
AER may, subject to and in accordance with the confidentiality 19
provisions applicable to this Division, do any of the following: 20
(a) inquire of one or more registered RoLRs as to whether it wants to 21
be appointed designated RoLR for that event; 22
(b) give notice of that belief and of the grounds for the belief to one 23
or more of the following: 24
(i) distributors; 25
(ii) registered RoLRs of whom the inquiries are made; 26
(iii) relevant default RoLRs; 27
(iv) such other person as the AER considers relevant, 28
but it must, in any such case, give notice of that belief and of the 29
grounds for the belief to AEMO and Ministers of participating 30
jurisdictions. 31
(6) The AER may, subject to and in accordance with Division 7, issue a 32
RoLR regulatory information notice to obtain the financial information. 33
131 Confidentiality provisions 34
(1) This section contains confidentiality provisions applicable to this 35
Division and also applies where the AER serves a regulatory 36
information notice in connection with the exercise of the AER's 37
functions and powers under this Division. 38
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(2) In the case of the AER, it must keep confidential-- 1
(a) its request for financial information (including, if it issues one, 2
the issue of a regulatory information notice to obtain the 3
information) and the financial information provided in response 4
to the request; and 5
(b) both its belief as to the risk of a RoLR event and the fact and 6
nature of its inquiries of registered RoLRs, 7
but it may disclose any or all of those matters or that financial 8
information as allowed or required by this Division or otherwise in 9
accordance with Division 3 of Part 8. 10
(3) In the case of AEMO, it must keep the fact and nature of the 11
consultations between it and the AER, the financial information and the 12
AER notice given under section 130(5)(b) confidential, but it may 13
disclose them in accordance with Division 6 of Part 5 of the NEL and 14
Division 7 of Part 6 of Chapter 2 of the NGL. 15
(4) In the case of persons other than the AER and AEMO who are given the 16
AER notice of the risk of a RoLR event, they must keep the fact and 17
nature of the notice (and the information it contains) confidential and-- 18
(a) must use it only for the purpose of preparing for the RoLR event; 19
and 20
(b) must not (in the case of the default RoLR or registered RoLR of 21
whom the AER's inquiries are made) disclose the notice, its issue 22
and information to any member of its marketing staff; and 23
(c) may disclose it to third parties only if those third parties also 24
agree to be bound by the same confidentiality requirements as 25
those persons are subject to under this Law, 26
except to the extent that-- 27
(d) the notice is in the public domain; or 28
(e) the AER or AEMO has published the notice in accordance with 29
this Division; or 30
(f) the retailer the subject of the notice has published the notice 31
under Chapter 6CA of the Corporations Act 2001 of the 32
Commonwealth; or 33
(g) a Minister has published the notice in the case of an emergency 34
or in a case where that Minister considers it is otherwise 35
necessary or desirable to do so in the public interest. 36
(5) The matters and financial information referred to in subsection (3) are 37
taken to be protected information for the purposes of the provisions of 38
the NEL and NGL referred to in that subsection. 39
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Division 4 Appointment of designated RoLRs 1
132 Designation of registered RoLR for RoLR event 2
(1) If a RoLR event occurs the default RoLR is taken to be appointed as the 3
designated RoLR in respect of that event. 4
(2) Despite subsection (1), the AER may, by notice in writing, appoint a 5
registered RoLR as a designated RoLR in respect of a RoLR event 6
before the event actually occurs. If such an appointment is made and the 7
AER gives a copy of the notice to AEMO before the transfer date, the 8
registered RoLR is taken to be the designated RoLR in respect of that 9
event instead of the default RoLR. 10
(3) Appointment as a designated RoLR takes effect immediately or from an 11
earlier or later time specified in or fixed in accordance with the RoLR 12
notice for the RoLR event. 13
(3a) The appointment of the default RoLR as the designated RoLR under 14
subsection (1) also operates subject to-- 15
(a) any other provision made in the RoLR notice for the RoLR event; 16
and 17
(b) any determination by the AER in the circumstances of the 18
particular case (including a determination that has the effect of 19
over-riding the operation of subsection (1) so that an appointment 20
under that subsection will be taken not to have been made). 21
(4) The AER must notify a registered RoLR before appointing it as a 22
designated RoLR, but the registered RoLR's consent is not required for 23
appointment. 24
(5) If-- 25
(a) the AER includes a direction under section 137 in a RoLR notice; 26
and 27
(b) there is more than one distributor who will receive the direction; 28
and 29
(c) the distribution systems of those distributors are connected to the 30
same transmission pipeline, 31
only the same designated RoLR may, despite any other provision of this 32
Part, be appointed (or be taken to be appointed) as the designated RoLR 33
for each of those distribution systems. 34
133 Criteria for RoLR designation 35
(1) In determining whether to appoint a registered RoLR as a designated 36
RoLR, the AER must take into consideration-- 37
(a) the RoLR criteria; and 38
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(b) whether the registered RoLR has a RoLR cost recovery scheme 1
(see Division 9 and subsection (2)) and if so what costs are 2
recoverable pursuant to that scheme and the amount or likely 3
amount of those costs; and 4
(c) the imminence of the RoLR event; and 5
(d) any other matters the AER considers relevant in the 6
circumstances. 7
(2) The registered RoLR and the AER may by agreement vary the RoLR's 8
cost recovery scheme for the purposes of this section, and the reference 9
in subsection (1)(b) to the RoLR cost recovery scheme is accordingly a 10
reference to that scheme as so varied. 11
134 Appointment of more than one designated RoLR for RoLR event 12
(1) The AER may appoint more than one designated RoLR for a RoLR 13
event if the AER is of the opinion that it is appropriate to do so having 14
regard to the size of, or other circumstances surrounding, the event. 15
(2) When making the appointments, the AER must allocate responsibility 16
for particular customers or classes of customers to each designated 17
RoLR in the manner specified in guidelines under section 135(2)(b). 18
(3) The AER must, to the maximum practicable extent, make the 19
appointments and allocations in accordance with the AER RoLR 20
Guidelines except to the extent that the AER is satisfied that compliance 21
with the guidelines would be inappropriate in the circumstances. 22
135 AER RoLR Guidelines 23
(1) The AER must develop, make and maintain AER RoLR Guidelines in 24
accordance with the retail consultation procedure. 25
(2) The guidelines must-- 26
(a) specify the circumstances in which the appointment of more than 27
one designated RoLR for a RoLR event may occur; and 28
(b) specify the manner of determining the allocation of the 29
designated RoLRs to particular customers or classes of 30
customers; and 31
(c) provide for any other matter that the AER considers necessary in 32
the circumstances. 33
(3) The guidelines may (without limitation) make different provision for 34
the failure of large retailers, small retailers and retailers that are default 35
RoLRs. 36
(4) The manner of determining the allocation of designated RoLRs referred 37
to in subsection (2) must involve the use of meter identifiers alone or the 38
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use of a combination of meter identifiers and other means acceptable to 1
AEMO, and must be determined by the AER in consultation with 2
AEMO. 3
(5) The guidelines may (without limitation)-- 4
(a) specify the form of and information to be included in a RoLR 5
register EoI; and 6
(b) specify the form of and information to be included in an 7
application for a RoLR cost recovery scheme; and 8
(c) provide for any other matter the AER considers necessary with 9
respect to the RoLR scheme. 10
(6) The AER may amend the guidelines in accordance with the retail 11
consultation procedure. 12
Division 5 Declaration of RoLR event 13
136 Issue of RoLR notice 14
(1) The AER may decide to issue a notice (a RoLR notice) on the 15
occurrence of a RoLR event. 16
(1a) The AER must decide whether or not to issue a notice under subsection 17
(1) as soon as practicable after the RoLR event occurs. 18
(2) A RoLR notice must-- 19
(a) state that the RoLR event has occurred and identify it; and 20
(b) specify the failed retailer; and 21
(c) specify the registered RoLR or registered RoLRs appointed by 22
the notice (or taken to be appointed) under section 132 as 23
designated RoLR or designated RoLRs for the event; and 24
(d) if more than one designated RoLR is appointed--specify, in 25
accordance with the AER RoLR Guidelines, the allocation of 26
each designated RoLR to particular customers or classes of 27
customers; and 28
(e) specify the date, or the manner of fixing the date, (either of which 29
is the transfer date) on which the customers of the failed retailer 30
are transferred to the relevant designated RoLR under section 31
140; and 32
(f) contain the endorsement revoking the failed retailer's retailer 33
authorisation, where applicable, under section 142; and 34
(g) include any other information or matters the AER considers 35
necessary or desirable. 36
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(3) A RoLR notice may contain requirements (not inconsistent with this 1
Law or the RoLR Procedures) to be complied with by-- 2
(a) the failed retailer; and 3
(b) a designated RoLR; and 4
(c) subject to section 143(3), other persons on whom the notice is 5
served, 6
in relation to the RoLR event and in particular in relation to the transfer 7
of customers. 8
(4) A RoLR notice must be framed so as to deal with all customers of the 9
failed retailer, but a failure to do so does not invalidate the notice and 10
the notice has effect for the customers covered by it. 11
(5) The transfer date may be on, before or after the date of service or 12
publication of the RoLR notice, but if the RoLR event is-- 13
(a) the revocation of the retailer's retailer authorisation; or 14
(b) the suspension of the retailer's right to participate-- 15
(i) in the case of electricity--in the wholesale exchange 16
market; or 17
(ii) in the case of gas--either in the declared wholesale gas 18
market or in a short term trading market, 19
the transfer date is taken to be the date of the revocation or suspension 20
(as the case may be), unless an earlier date is specified or fixed. 21
(6) The AER may amend a RoLR notice by a later notice issued by the 22
AER, but a RoLR notice cannot be amended so as to change-- 23
(a) a transfer date if the date has already been reached; or 24
(b) without the consent of AEMO and the designated RoLR, an 25
allocation of a customer if AEMO has acted on the allocation or 26
if changing the allocation would (or would be likely to) affect 27
continuity of the sale of energy to customers. 28
137 RoLR notice--direction for gas 29
(1) If, in the case of gas, there is no declared wholesale gas market or short 30
term trading market or where, in the opinion of the AER, sufficient 31
capacity or gas is not available in a short term trading market, the AER 32
may include a direction in a RoLR notice to the effect of any or all of 33
the following: 34
(a) a distributor must make available to a designated RoLR the 35
capacity that was available, immediately before the transfer date, 36
to the failed retailer on the distributor's distribution pipeline; 37
(b) a service provider for a transmission pipeline must make 38
available to a designated RoLR the capacity that was available, 39
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immediately before the transfer date, to the failed retailer on the 1
provider's transmission pipeline; 2
(c) a producer or any other person that has contracted to sell gas to 3
the failed retailer must make available to a designated RoLR the 4
gas that was contracted to the failed retailer. 5
(2) In forming its opinion under subsection (1) as to whether or not 6
sufficient gas is available in a short term trading market, the AER may 7
proceed on the assumption that there is not sufficient gas unless, before 8
the issue of a RoLR notice, AEMO notifies the AER in writing that 9
there is sufficient gas. 10
(3) The following subsections of this section apply if the AER includes a 11
direction under subsection (1). 12
(4) The designated RoLR may, but is not obliged to, use any or all of the 13
capacity or take any or all of the gas made available to it by a person 14
who received a direction under subsection (1). 15
(5) The terms and conditions for the transmission, distribution, sale and 16
supply of gas to the designated RoLR-- 17
(a) are-- 18
(i) if there is an applicable access arrangement with respect to 19
the distribution pipeline or transmission pipeline--to be in 20
accordance with that applicable access arrangement, 21
including (if the applicable access arrangement is a limited 22
access arrangement) at the price paid or payable by the 23
failed retailer; or 24
(ii) if there is no applicable access arrangement--to be on the 25
same terms and conditions as the contract for pipeline 26
services (however the contract is named in the contract or 27
elsewhere, but referred to in this section as the haulage 28
contract) in force with the failed retailer immediately 29
before the transfer date; and 30
(b) are otherwise to be the same terms and conditions as in the gas 31
sale and purchase contract (however the contract is named in the 32
contract or elsewhere, but referred to in this section as the gas 33
sale contract) in force with the failed retailer immediately before 34
the transfer date. 35
(6) Despite subsection (5), if the terms and conditions of the haulage 36
contract or the gas sale contract materially differ from those that 37
otherwise prevail in the market, the AER may specify in the RoLR 38
notice (or an amendment, which may have effect back to the transfer 39
date) terms and conditions that, in its opinion, better accord with those 40
that otherwise prevail in the market. 41
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(7) In forming its opinion under subsection (6) as to terms and conditions 1
that better accord with those that otherwise prevail in the market, the 2
AER may (without limitation) take into account the individual 3
circumstances of the failed retailer and the designated RoLR. 4
(8) The designated RoLR and distributor or service provider of the 5
transmission pipeline (as the case may be) must, as soon as practicable 6
after the transfer date, commence negotiations for a replacement 7
contract for pipeline services. 8
(9) If a replacement contract is agreed, the direction ceases to have effect as 9
from the date the replacement contract has effect. 10
(10) If, after 3 months from the transfer date, no replacement contract has 11
been agreed-- 12
(a) either party may commence an access dispute under Chapter 6 of 13
the NGL; and 14
(b) the provisions of section 91BH(4) of the NGL apply to the access 15
dispute in the same way as they apply to a determination by the 16
AER of an access dispute referred to in those provisions; and 17
(c) the direction continues in force for the haulage contract until an 18
access determination has effect under section 184(4) of the NGL. 19
(11) For the purposes of subsection (10)(a), the failure to agree to a 20
replacement contract is taken to be an access dispute within the meaning 21
of section 178 of the NGL regardless of whether the pipeline concerned 22
is a scheme pipeline within the meaning of section 2 of the NGL. 23
(12) If the gas sale contract in its terms continues in force despite the RoLR 24
event-- 25
(a) the insolvency official of the failed retailer or the failed retailer 26
(as the case may be) must as soon as practicable after the transfer 27
date commence negotiations with the designated RoLR and the 28
producer or other person who was under the contract selling gas 29
to the failed retailer for-- 30
(i) the novation of the contract; or 31
(ii) its termination and replacement by a new contract, 32
between the designated RoLR and the producer or other person; 33
and 34
(b) if a novation or replacement contract is agreed, the direction 35
ceases to have effect for the gas sale contract as from the date the 36
novation or replacement contract has effect; and 37
(c) if, after 3 months from the transfer date, there is no agreement-- 38
(i) the insolvency official or failed retailer (as the case may 39
be) must put the gas that is the subject of the contract up 40
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for sale by auction and must use their best endeavours to 1
ensure that the auction is completed and the gas is sold 2
within 6 months of the transfer date; and 3
(ii) the insolvency official or failed retailer (as the case may 4
be) and the producer or other person who was under the 5
contract selling gas to the failed retailer must execute all 6
documents required for both the auction and the sale of 7
gas, including any new gas sale and purchase contract 8
(however named in the contract or elsewhere) or any 9
novation contract consequent on the auction; and 10
(iii) when the gas has been sold, the direction ceases to have 11
effect for the gas sale contract. 12
(13) If the gas sale contract in its terms terminates or is terminated because 13
of the RoLR event-- 14
(a) the producer or other person who was under the contract selling 15
gas to the failed retailer (as the case may be) must as soon as 16
practicable after the transfer date commence negotiations with 17
the designated RoLR for a new contract between the designated 18
RoLR and the producer or other person; and 19
(b) if a new contract is agreed, the direction ceases to have effect for 20
the gas sale contract as from the date the replacement contract has 21
effect; and 22
(c) if, after 3 months from the transfer date, there is no agreement-- 23
(i) the producer or other person who was under the terminated 24
contract selling gas to the failed retailer (as the case may 25
be) must put the gas that is the subject of the terminated 26
contract up for sale by auction and must use their best 27
endeavours to ensure that the auction is completed and the 28
gas is sold within 6 months of the transfer date; and 29
(ii) the producer or other person who was under the terminated 30
contract selling gas to the failed retailer (as the case may 31
be) must execute all documents required for both the 32
auction and the sale of gas, including any new gas sale and 33
purchase contract (however named in the contract or 34
elsewhere) consequent on the auction; and 35
(iii) when the gas has been sold, the direction ceases to have 36
effect for the gas sale contract. 37
(14) In this section, access determination, distribution pipeline, limited 38
access arrangement, pipeline services, producer, service provider and 39
transmission pipeline have the same meanings as in the NGL and 40
distributor includes a service provider for a pipeline that is not a scheme 41
pipeline within the meaning of the NGL. 42
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138 Service and publication of RoLR notice 1
(1) A RoLR notice or a notice amending a RoLR notice-- 2
(a) must be given to-- 3
(i) the failed retailer at its registered office and (if different) 4
its principal place of business; and 5
(ii) any insolvency official of the failed retailer; and 6
(iii) AEMO; and 7
(iv) the designated RoLR or RoLRs; and 8
(v) the distributors; and 9
(vi) the Ministers of the participating jurisdictions; and 10
(b) may be given to any other person whom the AER considers 11
appropriate to be served; and 12
(c) must be published on the AER's website; and 13
(d) must be published by AEMO and copies provided by AEMO to 14
all Registered participants within the meaning of the NEL and 15
NGL. 16
(2) The notice should, if reasonably practicable, be given before being 17
published, but prior publication does not affect the validity or operation 18
of the notice. 19
(3) The notice is effective, in accordance with its terms, on and from the 20
date of service or the date of publication, whichever first occurs. 21
139 Publication requirements for RoLR events 22
(a1) This section applies if a RoLR notice is issued by the AER. 23
(1) Notice of the RoLR event must be published on-- 24
(a) the AER's website; and 25
(b) AEMO's website; and 26
(c) the failed retailer's website, if possible; and 27
(d) the designated RoLR's website. 28
(2) Recorded or live messages giving information about the RoLR event 29
must be readily available on-- 30
(a) the failed retailer's call centre telephone number, if possible; and 31
(b) the AER's call centre telephone number; and 32
(c) the designated RoLR's call centre telephone number. 33
(3) If and to the extent the AER considers it necessary or desirable to do so, 34
the AER may place advertisements in newspapers or on radio and 35
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television in the area or areas served by the failed retailer giving 1
information about the RoLR event. 2
(4) This section does not prevent a RoLR plan-- 3
(a) having requirements for notification directly to customers by the 4
designated RoLR (or by any other person) of a RoLR event or of 5
the change of retailer, or both; or 6
(b) making additional provision for publication of a RoLR event. 7
140 Transfer of responsibility 8
(1) Each person who was a customer of a failed retailer immediately before 9
the transfer date-- 10
(a) ceases, by force of this Law, to be a customer of the failed retailer 11
on that date; and 12
(b) becomes, by force of this Law, a customer of the relevant 13
designated RoLR immediately after so ceasing to be a customer 14
of the failed retailer. 15
(2) On and from the transfer date, and in relation to the customers 16
transferred to it and subject to and in accordance with the RoLR 17
Procedures, the designated RoLR assumes the functions and powers of 18
the failed retailer under the energy laws, including (without 19
limitation)-- 20
(a) for electricity--in the case of any metering installation where the 21
failed retailer was as at the transfer date the responsible person, 22
the designated RoLR becomes, by force of this Law, the 23
responsible person; and 24
(b) for electricity--in the case of any other metering installation in 25
respect of which there is as at the transfer date an agreement in 26
force under rule 7.2.3 of the NER between the failed retailer and 27
the Local Network Service Provider, the designated RoLR 28
becomes, by force of this Law, party to that agreement in place of 29
the failed retailer; and 30
(c) for electricity--in any case where the failed retailer (in its 31
capacity as responsible person) has entered into an agreement 32
under rule 7.2.5 of the NER with a Metering Provider, the 33
designated RoLR by force of this Law becomes, by force of this 34
Law, party to that agreement in place of the failed retailer; and 35
(d) any function or power prescribed by the National Regulations for 36
the purposes of this section; and 37
(e) any function or power specified in energy laws for the purposes 38
of, or in connection with matters provided under, this section. 39
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(3) The designated RoLR assumes no financial or other liabilities of the 1
failed retailer under an agreement referred to in subsection (2) where 2
that liability accrues before the transfer date. 3
(4) The designated RoLR must, if it is notified by the AER, the failed 4
retailer, an insolvency official or a distributor that the premises of a 5
customer of the failed retailer has life support equipment, comply with 6
the obligations as to life support equipment that apply to retailers under 7
the Rules as if the designated RoLR had been notified by the customer. 8
(5) The designated RoLR must, if it is notified by a customer, the AER, the 9
failed retailer, an insolvency official or a distributor that the customer is 10
in receipt of a tariff payment, credit or other benefit referred to in 11
section 154(2)(h), comply with the feed-in arrangement concerned. 12
(6) Subject to the RoLR Procedures-- 13
(a) transfers of customers to the failed retailer from another retailer 14
that were under way as at the transfer date are to cease on and 15
from that date; and 16
(b) those customers instead remain customers of that other retailer on 17
their previous contractual terms and conditions with that retailer; 18
and 19
(c) despite anything to the contrary in the previous contract with 20
such a customer, the customer may terminate the contract with 21
that other retailer on one month's notice or a lesser period 22
allowed by the previous terms and conditions. 23
(7) Subject to the RoLR Procedures, if a large customer in electricity has 24
notified AEMO in writing before the transfer date as to who its retailer 25
(the nominated retailer) will be in a RoLR event and that it has agreed 26
terms and conditions with the nominated retailer, and the nominated 27
retailer has also notified AEMO in writing that it has agreed to be the 28
nominated retailer for that customer-- 29
(a) AEMO may transfer that customer to the nominated retailer 30
rather than the designated RoLR; and 31
(b) the customer becomes, by force of this Law, a customer of the 32
nominated retailer as at the transfer date on the terms and 33
conditions agreed between the large customer and the nominated 34
retailer. 35
(8) In this section, Local Network Service Provider, metering installation, 36
Metering Provider and responsible person have the same meanings as 37
in the NER. 38
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141 Termination of customer retail contracts 1
(1) The contract for the sale of energy between a failed retailer and each 2
person who was a customer of the retailer immediately before the 3
transfer date is terminated on the transfer date by force of this Law. 4
(2) Termination of a contract under this section does not affect any rights 5
and obligations that have already accrued under the contract, but no 6
early termination charge is payable where a contract is terminated under 7
this section. 8
(3) Subsection (1) has effect even though the financially responsible 9
retailer might not change from the failed retailer to the relevant 10
designated RoLR until after the transfer date. 11
(4) Any complaint or dispute between a failed retailer and a small customer 12
(whether the complaint or dispute arose on, before or after the transfer 13
date) may continue to be dealt with as if the failed retailer's 14
authorisation has not been revoked under section 142, and-- 15
(a) Part 4 continues to apply to the complaint or dispute; and 16
(b) an insolvency official of the failed retailer is also subject to and 17
bound by Part 4 in dealing with the complaint or dispute. 18
(5) The insolvency official of a failed retailer or the failed retailer (as the 19
case may be) must take steps to cancel with effect on and from the 20
transfer date any direct debit authorisations (including any Centrepay 21
deductions) that are in place for any customer of the failed retailer. 22
Cancellation of a direct debit authorisation does not affect a customer's 23
obligation to pay for any energy consumed before the transfer date. 24
(6) If a customer of a failed retailer has paid amounts to the retailer in 25
advance towards the customer's energy bill, the insolvency official of 26
the failed retailer or the failed retailer (as the case may be) must-- 27
(a) apply those amounts to the payment of the customer's account, 28
but only insofar as that payment is for energy consumed before 29
the transfer date; and 30
(b) pay any balance remaining to the customer. 31
(7) If a customer has paid the failed retailer in whole or in part for a service 32
order and as at the transfer date the order has not been completed-- 33
(a) the designated RoLR may-- 34
(i) place the order with the relevant distributor; and 35
(ii) if the order has already been placed, take steps to ensure its 36
completion; and 37
(b) the customer is not liable to pay for the order except to the extent 38
that the customer had not already paid as at the transfer date. 39
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(8) If a payment plan is in force with the failed retailer, the failed retailer or 1
insolvency official (as the case requires) or their assignees must 2
continue to comply with that plan insofar as it provides for the payment 3
by instalments of any arrears that are outstanding as at the transfer date. 4
(9) Any security deposit paid by a small customer to a failed retailer (and 5
any interest accrued on that deposit) must be refunded to the customer 6
by the failed retailer or insolvency official without any deduction other 7
than in respect of energy consumed (but not paid for) before the transfer 8
date. 9
(10) If a small customer is on a prepayment meter market retail contract, a 10
payment equal to the value of any credit remaining in the prepayment 11
meter system account as at the transfer date must be made by the failed 12
retailer or insolvency official to the small customer without any 13
deduction. 14
142 Revocation of retailer authorisation 15
(1) If a failed retailer has not already had its authorisation revoked under 16
this Law, the AER may at the same time as it issues the RoLR notice for 17
the retailer, and by endorsement on that notice, revoke the retailer 18
authorisation with effect from the transfer date. 19
(2) Divisions 5 and 7 of Part 5 do not apply in relation to the revocation of 20
a retailer authorisation under this section, but nothing prevents the AER 21
from applying the revocation process referred to in those Divisions, or 22
any aspect of it, in relation to the revocation if the AER so decides. 23
143 Compliance requirements following service of RoLR notice 24
(1) AEMO must, in relation to the RoLR event concerned, comply with the 25
applicable requirements of the notice, this Part, the RoLR Procedures 26
and the National Regulations. 27
(2) The failed retailer, any insolvency official of the failed retailer and 28
anyone else given a RoLR notice must, in relation to the RoLR event 29
concerned-- 30
(a) comply with the notice; and 31
(b) comply with the applicable requirements of-- 32
(i) this Part; and 33
(ii) the RoLR Procedures; and 34
(iii) the National Regulations. 35
Note-- Subsection (2)(a) is a civil penalty provision. 36
(3) A RoLR notice cannot impose requirements on a Minister of a 37
participating jurisdiction without the consent of that Minister. 38
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144 RoLR Procedures 1
(1) AEMO may include, in procedures that it makes pursuant to the NEL 2
and the NGL, procedures that deal with the following: 3
(a) any matters relating to the operation or implementation of the 4
RoLR scheme; 5
(b) without limiting paragraph (a)-- 6
(i) any matter referred to in section 149(2); and 7
(ii) the transfer of customers from failed retailers to designated 8
RoLRs; and 9
(iii) the acceleration or cancellation of open transactions; and 10
(iv) audits and reviews; 11
(c) without limiting paragraphs (a) and (b)-- 12
(i) in the case of electricity--any matter that the Retail 13
Market Procedures, including B2B Procedures, the Market 14
Settlement and Transfer Solution (MSATS) Procedures 15
and metrology procedure deal with insofar as any of those 16
procedures make provision at the commencement of this 17
section with respect to RoLR events; and 18
(ii) in the case of gas--any matter that the relevant Retail 19
Market Procedures deal with insofar as those procedures 20
make provision at the commencement of this section with 21
respect to RoLR events; 22
(d) any other matter relevant to the RoLR scheme; 23
(e) any matter consequential on or related to any of the above. 24
(2) Procedures that AEMO makes pursuant to this section may-- 25
(a) apply to electricity or gas separately; and 26
(b) vary according to the persons, times, places or circumstances to 27
which they are expressed to apply; and 28
(c) confer functions or powers on, or leave any matter or thing to be 29
decided by, AEMO; and 30
(d) confer rights or impose obligations on retailers (including failed 31
retailers), insolvency officials of failed retailers, distributors, the 32
AER, AEMO or other persons; and 33
(e) confer power on AEMO to make or issue guidelines, tests, 34
standards and other documents of an administrative nature; and 35
(f) confer power on AEMO to require a person on whom a right is 36
conferred, or an obligation imposed, under the procedures-- 37
(i) to comply with a guideline, standard or other document of 38
an administrative nature; or 39
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(ii) to conduct, or submit to, a test designed by AEMO under 1
the procedures; and 2
(g) exempt, or confer a power of exemption, from the application of 3
the procedures or specified provisions of the procedures; and 4
(h) contain provisions of a savings or transitional nature. 5
(3) AEMO must not, without the consent of the MCE, make procedures 6
pursuant to this section that confer a right or function, or impose an 7
obligation, on the MCE or a Minister of a participating jurisdiction. 8
(4) Procedures made pursuant to this section cannot-- 9
(a) create an offence; or 10
(b) provide for a civil penalty. 11
(5) Procedures made pursuant to this section are referred to in this Part as 12
RoLR Procedures. 13
Division 6 Arrangements for sale of energy to transferred 14
customers 15
145 Contractual arrangements for sale of energy to transferred small 16
customers 17
(1) This section applies where a person who was a small customer of a 18
failed retailer immediately before the transfer date becomes, by force of 19
this Law, a customer of the relevant designated RoLR. 20
(2) An arrangement (a RoLR deemed small customer retail arrangement) 21
is taken to apply between the relevant designated RoLR and the small 22
customer with effect on and from the transfer date. 23
(3) The terms and conditions of the RoLR deemed small customer retail 24
arrangement are the terms and conditions of the relevant designated 25
RoLR's standard retail contract. 26
(4) The prices applicable to the RoLR deemed small customer retail 27
arrangement are the relevant designated RoLR's standing offer prices, 28
with any variations in accordance with or consequent on the applicable 29
RoLR cost recovery scheme determined under Division 9. 30
(5) This section has effect even though the failed retailer might not cease to 31
be the financially responsible retailer for the premises of the small 32
customer until after the transfer date. 33
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146 Contractual arrangements for sale of energy to transferred large 1
customers 2
(1) This section applies where a person who was a large customer of a failed 3
retailer immediately before the transfer date becomes, by force of this 4
Law, a customer of the relevant designated RoLR (see section 140). 5
(2) An arrangement (a RoLR deemed large customer retail arrangement) 6
is taken to apply between the designated RoLR and the large customer 7
with effect on and from the transfer date. 8
(3) The terms and conditions of the RoLR deemed large customer retail 9
arrangement are the terms and conditions published by the designated 10
RoLR on its website, but they must be fair and reasonable. 11
(4) This section has effect even though the failed retailer might not cease to 12
be the financially responsible retailer for the premises of the large 13
customer until after the transfer date. 14
147 Duration of arrangements for small customers 15
(1) A RoLR deemed small customer retail arrangement ceases to be in 16
operation if a customer retail contract is formed in relation to the 17
premises, but this subsection does not affect any rights or obligations 18
that have already accrued under that arrangement. 19
(2) There is no minimum period for the small customer to remain with a 20
designated RoLR on a RoLR deemed small customer retail 21
arrangement. 22
(3) If the small customer is still a customer of a designated RoLR on a 23
RoLR deemed small customer retail arrangement at the end of the 24
period of 3 months after the transfer date, a standard retail contract, in 25
the form of the designated RoLR's standard retail contract, is taken to 26
have been formed between the small customer and the designated 27
RoLR. 28
(4) After that period of 3 months (but not earlier unless the designated 29
RoLR agrees), the small customer and designated RoLR may seek to 30
negotiate a market retail contract in accordance with section 33. 31
148 Duration of arrangements for large customers 32
(1) A RoLR deemed large customer retail arrangement ceases to be in 33
operation if a contract for the sale of energy is formed in relation to the 34
premises, but this subsection does not affect any rights or obligations 35
that have already accrued under that arrangement. 36
(2) There is no minimum period for the large customer to remain with a 37
RoLR on a RoLR deemed large customer retail arrangement. 38
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(3) The designated RoLR and the large customer may agree to terminate the 1
deemed large customer retail arrangement at any time. 2
(4) The designated RoLR may, at any time, serve a notice on the large 3
customer stating that the RoLR deemed large customer retail 4
arrangement will be terminated after the period of 6 months after the 5
transfer date unless a retail contract is negotiated and formed in relation 6
to the premises before the end of that period. The designated RoLR is, 7
however, under no obligation to initiate negotiations with the large 8
customer. 9
(5) The designated RoLR may terminate the arrangement in accordance 10
with the terms and conditions of the deemed large customer retail 11
arrangement after the end of that period. 12
Division 7 Information requirements 13
Subdivision 1 Preliminary 14
149 Operation of this Division 15
(1) This Division does not limit the information for or in connection with a 16
RoLR event that AEMO may require a failed retailer (or its insolvency 17
official) to provide to it, to distributors and to designated RoLRs (or to 18
any of them) under the RoLR scheme, the NEL or NGL or the NER or 19
NGR. 20
(2) To avoid doubt, AEMO may under the RoLR Procedures require a 21
failed retailer or its insolvency official to provide to AEMO, distributors 22
or designated RoLRs, for or in connection with a RoLR event, customer 23
details, customer site details information and other customer 24
information, including information that in circumstances other than a 25
RoLR event is not usually provided. 26
Subdivision 2 General obligation to notify AER 27
150 Information to be provided to AER by AEMO and retailers 28
(1) AEMO must without delay notify the AER of any event, circumstance 29
or matter of which AEMO is aware and which-- 30
(a) it has reason to believe-- 31
(i) might be, is or may be at some time in the future an event, 32
circumstance or matter that may or will affect; or 33
(ii) gives rise to some risk of affecting, 34
a retailer's ability to maintain continuity of the sale of energy to 35
its customers; or 36
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(b) gives rise to, or gives rise to some risk of, a RoLR event. 1
(2) A retailer must without delay notify the AER and AEMO of any event, 2
circumstance or matter of which the retailer is aware and which-- 3
(a) it has reason to believe-- 4
(i) might be, is or may be at some time in the future an event, 5
circumstance or matter that may or will affect; or 6
(ii) gives rise to some risk of affecting, 7
the retailer's ability to maintain continuity of the sale of energy 8
to its customers; or 9
(b) gives rise to a RoLR event in relation to the retailer. 10
Subdivision 3 Serving and making of RoLR regulatory 11
information notices 12
151 Meaning of RoLR regulatory information notice 13
(1) A RoLR regulatory information notice is a notice prepared and served 14
by the AER in accordance with this Division that requires the retailer (or 15
former retailer) named in the notice to provide specified information to 16
any one or more of the following as specified in the notice: 17
(a) the AER; 18
(b) AEMO; 19
(c) a registered RoLR; 20
(d) a distributor. 21
(2) If the notice is also served on an insolvency official of the retailer, the 22
insolvency official is required to provide the information. 23
152 Service of RoLR regulatory information notice 24
(1) The AER may serve a RoLR regulatory information notice on a retailer 25
(or former retailer) if it considers it reasonably necessary to do so in 26
connection with either-- 27
(a) a RoLR event that has occurred; or 28
(b) the exercise of the AER's powers under Division 3, whether or 29
not a RoLR event has occurred. 30
(2) A RoLR regulatory information notice must not be served solely for the 31
purpose of-- 32
(a) investigating breaches or possible breaches of provisions of the 33
national energy legislation, including offences against the 34
national energy legislation; or 35
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(b) instituting and conducting proceedings in relation to breaches of 1
provisions of the national energy legislation, including offences 2
against the national energy legislation; or 3
(c) instituting and conducting appeals from decisions in proceedings 4
referred to in paragraph (b); or 5
(d) collecting information for the preparation of a retail market 6
performance report; or 7
(e) obtaining information about a RoLR cost recovery scheme under 8
Division 9. 9
(3) A notice served on a retailer (or a former retailer) must also be served 10
on the insolvency official (if any) of the retailer. 11
Subdivision 4 Form and content of RoLR regulatory 12
information notices 13
153 Form and content of RoLR regulatory information notice 14
A RoLR regulatory information notice-- 15
(a) must name the retailer (or former retailer) to whom it applies; and 16
(b) must specify the information required to be provided; and 17
(c) must specify to whom the information described in the notice is 18
to be provided; and 19
(d) may specify the manner and form in which the information 20
described in the notice is required to be provided; and 21
(e) must specify when the information must be provided. 22
154 Further provision about the information that may be described in a RoLR 23
regulatory information notice 24
(1) Without limiting section 153(b), the information that may be required 25
to be provided may include the following: 26
(a) historic, current and forecast information; 27
(b) information that is or may be derived from other information in 28
the possession or control of the retailer. 29
(2) Without limiting section 153(b), the information that may be required 30
to be provided in relation to a RoLR event may include the following: 31
(a) the names and contact details (including billing addresses) of all 32
the retailer's customers; 33
(b) the addresses at which those customers are supplied energy (if a 34
supply address is different from the billing address); 35
(c) the meter identifier for each of those customers; 36
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(d) the network tariff code or codes of the distributor for each of 1
those customers; 2
(e) details of each customer's actual consumption of energy in one or 3
more specified periods; 4
(f) whether any customer is a hardship customer and if so details of 5
which customer; 6
(g) whether the premises of any customer are registered by the 7
retailer under the Rules as having life support equipment and if 8
so details of which premises; 9
(h) whether any customer is in receipt of a tariff payment, credit or 10
other benefit under a feed-in arrangement prescribed by the 11
National Regulations for the purposes of this paragraph, and if so 12
details of which customer and details of the payment, credit or 13
other benefit; 14
(i) details of customer classification under the Rules (see section 7); 15
(j) details of any pension, health or social security payments to, 16
rebates for or benefits or concessions of a customer; 17
(k) in the case of a failed retailer--any direct debit arrangements by 18
a customer, or Centrepay arrangements, with the retailer. 19
155 Further provision about manner in which information must be provided 20
Without limiting section 153, a RoLR regulatory information notice 21
may require that the information specified in the notice-- 22
(a) be provided on the occurrence of a specified event or state of 23
affairs; and 24
(b) be provided in accordance with any document, code, standard, 25
rule, specification or method formulated, issued, prescribed or 26
published by the AER, AEMO or any person, authority or body 27
whether-- 28
(i) wholly or partially or as amended by the notice; or 29
(ii) as formulated, issued, prescribed or published at the time 30
the notice is served or at any time before the notice is 31
served; or 32
(iii) as amended from time to time; and 33
(c) be verified by way of statutory declaration by an officer of the 34
retailer to whom the notice applies. 35
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Subdivision 5 Compliance with RoLR regulatory information 1
notices 2
156 Compliance with RoLR regulatory information notices 3
(1) On being served a RoLR regulatory information notice, a retailer (or 4
former retailer) named in the notice must comply with the notice. 5
(2) If the notice is also served on an insolvency official of the retailer-- 6
(a) the insolvency official must comply with the notice by providing 7
the required information; and 8
(b) despite subsection (1), the retailer is not required to provide 9
information provided by the insolvency official. 10
Note-- This section is a civil penalty provision. 11
157 Provision of information obtained from RoLR regulatory information 12
notice 13
If a RoLR event has occurred, information (including confidential 14
information or personal information within the meaning of the Privacy 15
Act 1988 of the Commonwealth or of any Act of a participating 16
jurisdiction relating to privacy) that the AER received pursuant to a 17
RoLR regulatory information notice may be given by the AER to 18
AEMO, distributors, a designated RoLR and any other person whom the 19
AER considers it necessary to give the information to. 20
Subdivision 6 General 21
158 Providing false or misleading information 22
A person must not, in purported compliance with a RoLR regulatory 23
information notice requiring the person to provide information, provide 24
information that the person knows is false or misleading in a material 25
particular. 26
Maximum penalty: 27
(a) in the case of a natural person--$2 000; 28
(b) in the case of a body corporate--$10 000. 29
159 Person cannot rely on duty of confidence to avoid compliance with RoLR 30
regulatory information notice 31
(1) A person must not refuse to comply with a RoLR regulatory 32
information notice on the ground of any duty of confidence. 33
(2) A person incurs, by complying with a RoLR regulatory information 34
notice, no liability for breach of contract, breach of confidence or any 35
other civil wrong. 36
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160 Legal professional privilege not affected 1
A RoLR regulatory information notice, and section 156, are not to be 2
taken as requiring a person to-- 3
(a) provide information that is the subject of legal professional 4
privilege; or 5
(b) produce a document the production of which would disclose 6
information that is the subject of legal professional privilege. 7
161 Protection against self-incrimination 8
It is a reasonable excuse for a natural person to whom section 156 9
applies not to comply with a RoLR regulatory information notice served 10
on the person requiring the person to provide information if to do so 11
might tend to incriminate the person, or make the person liable to a 12
criminal penalty, under a law of this jurisdiction or another participating 13
jurisdiction. 14
Division 8 RoLR plans 15
162 RoLR plans 16
(1) The AER must, in consultation with AEMO and Ministers of 17
participating jurisdictions, develop, make and maintain RoLR plans. 18
(2) A RoLR plan is a plan for-- 19
(a) the procedures to be followed by the participants in the event of 20
a RoLR event, including direct communication with customers of 21
a failed retailer; and 22
(b) regular exercises to be carried out by the participants in the plan. 23
(3) A RoLR plan must not be inconsistent with the RoLR Procedures. 24
(4) The participants in a RoLR plan are-- 25
(a) the AER; and 26
(b) AEMO; and 27
(c) the registered RoLR or registered RoLRs nominated by the AER; 28
and 29
(d) the distributor or distributors nominated by the AER; and 30
(e) other parties nominated by the AER. 31
(5) The AER must ensure that the participants in a RoLR plan-- 32
(a) are consulted in the development and maintenance of the plan; 33
and 34
(b) participate in regular exercises as provided in the plan. 35
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(6) Each participant in a RoLR plan must use its best endeavours-- 1
(a) to comply with the plan; and 2
(b) to assist in the development and maintenance of the plan; and 3
(c) to participate in regular exercises as provided in the plan. 4
(7) A RoLR plan must be published on the AER's website. 5
(8) The AER must ensure that a RoLR plan is reviewed at such times as it 6
considers appropriate and kept up to date to accord with the review 7
outcomes. 8
163 Contents of RoLR plans 9
Without limitation, a RoLR plan must-- 10
(a) provide that exercises are to be held at such times as the AER 11
considers appropriate and that a report on the conduct of each 12
exercise be published on the AER's website; and 13
(b) include, in the event of a RoLR event, strategies to quickly and 14
effectively communicate-- 15
(i) to the affected community--general details of the event; 16
and 17
(ii) to affected small customers--details of the event and 18
available options; and 19
(iii) to affected large customers--details regarding prices for 20
energy, available alternative retailers and how they can 21
quickly disconnect their energy supply if necessary; and 22
(iv) to Ministers of participating jurisdictions--details of the 23
event; and 24
(v) to departmental and other officers in affected 25
jurisdictions--details of the event; and 26
(vi) to energy ombudsmen in affected jurisdictions--details of 27
the event; and 28
(vii) to the failed retailer and any insolvency official of the 29
failed retailer--information regarding their obligations; 30
and 31
(viii) with AEMO--details regarding the event with a view to 32
ensuring that resources are available to effect customer 33
transfers; and 34
(ix) with affected distributors--details of the event and 35
information regarding their obligations; and 36
(x) with the designated RoLR or designated RoLRs--details 37
of the event and information regarding its or their 38
obligations; and 39
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(c) include, in the event of a RoLR event, strategies for the 1
designated RoLR to quickly and effectively communicate to 2
affected small customers-- 3
(i) details of what happens with their existing contracts with 4
the failed retailer, which must include details of the effect 5
of sections 140 and 141 as to hardship customers, 6
customers on life support, feed-in arrangements, 7
termination of direct debits (including Centrepay), refunds 8
of advance payments, security deposits, credits on 9
prepayment meter system accounts and uncompleted 10
service orders; and 11
(ii) details as to the designated RoLR and the arrangements 12
that apply for the sale of energy; and 13
(d) include a mechanism whereby-- 14
(i) details of customers that are hardship customers; and 15
(ii) details of premises registered as having life support 16
equipment, 17
are quickly and effectively communicated to the relevant 18
designated RoLR. 19
Division 9 RoLR cost recovery schemes 20
164 Operation of this Division, schemes and determinations 21
This Division and a RoLR cost recovery scheme under this Division 22
have effect despite anything in the following: 23
(a) the NEL and NER; 24
(b) the NGL and NGR; 25
(c) any distribution determination; 26
(d) any applicable access arrangement. 27
165 RoLR cost recovery 28
A registered RoLR (including but not limited to a designated RoLR) 29
cannot recover costs incurred in relation to the RoLR scheme except in 30
accordance with a RoLR cost recovery scheme determined under this 31
Division. 32
166 RoLR cost recovery schemes 33
(1) The AER must, on application by a registered RoLR, determine a RoLR 34
cost recovery scheme for the RoLR. 35
(2) The application must be in the form and contain the information 36
specified in the AER RoLR Guidelines. 37
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(3) A RoLR cost recovery scheme is a scheme designed for the recovery by 1
the RoLR of costs incurred by the RoLR in relation to the RoLR 2
scheme, including-- 3
(a) in the case of a default RoLR only--costs incurred in preparing 4
for RoLR events; and 5
(b) in the case of a designated RoLR only--costs incurred on and 6
after a RoLR event, including-- 7
(i) costs paid to an insolvency official of a failed retailer in 8
respect of anything done under this Part; and 9
(ii) costs paid to a distributor by the RoLR for service orders 10
and not recoverable from the customers concerned or from 11
the failed retailer. 12
Notes-- 13
1 Regarding subparagraph (i) above, see section 171. 14
2 Regarding subparagraph (ii) above, section 141(7) deals 15
with the case where a customer has paid the failed retailer 16
for a service order and the order has not been completed 17
as at the transfer date. 18
(4) The AER may, after receipt of an application made under subsection 19
(1), request from the retailer such additional information as the AER 20
considers reasonably necessary for it to determine the application. The 21
retailer must comply with any such request. 22
(5) The AER must publish on its website a notice of the application. A 23
notice published pursuant to this subsection must invite submissions on 24
the application within a specified period of at least 20 business days. 25
(6) The AER must decide whether to grant or refuse the application. 26
(7) The AER must, when making its decision on the application, be guided 27
by the following principles: 28
(a) the registered RoLR should be provided with a reasonable 29
opportunity to recover the reasonable costs that it incurs with 30
respect to the RoLR scheme; 31
(b) the recovery of costs should allow for a return commensurate 32
with the regulatory and commercial risks with respect to the 33
RoLR scheme; 34
(c) the registered RoLR will itself bear some of the costs, in 35
proportion to its customer base. 36
Note-- The AER must also have regard to the national energy retail objective. 37
(8) The AER may, in determining a RoLR cost recovery scheme, limit 38
either generally or in particular cases or classes of cases the costs (and 39
the amount of those costs) that are recoverable. 40
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(9) Without limitation, the AER's determination of a RoLR cost recovery 1
scheme may, so far as it relates to or affects tariffs payable by 2
customers, differ between customers and classes of customers. 3
(10) The AER must publish a copy of its decision on its website. 4
167 RoLR cost recovery scheme distributor payment determination 5
(1) The AER must, as part of its determination with respect to a RoLR cost 6
recovery scheme under this Division and after consultation with the 7
distributor or distributors concerned, make a determination (a RoLR 8
cost recovery scheme distributor payment determination) that one or 9
more distributors are to make payments towards the costs of the scheme. 10
(2) A RoLR cost recovery scheme distributor payment determination is 11
taken to be both a regulatory change event and a positive change event 12
for the purposes of the NER. 13
(3) Distributors are required to make payments to a RoLR in accordance 14
with their liability under a RoLR cost recovery scheme distributor 15
payment determination. 16
(4) The distribution determination or applicable access arrangement (as the 17
case may be) of each distributor who is to make payments under a RoLR 18
cost recovery scheme distributor payment determination is taken to be 19
amended so that any payments the distributor so makes are taken to 20
be-- 21
(a) in the case of electricity--positive pass through amounts 22
approved under the NER; or 23
(b) in the case of gas--approved cost pass throughs allowing 24
variation of the distributor's reference tariffs. 25
(5) Notwithstanding any other provision of this Division, if a designated 26
RoLR (other than a default RoLR) agrees with the AER that it will seek 27
to recover no costs or only a particular figure or percentage of its costs, 28
the designated RoLR may not afterwards seek to recover any more than 29
as agreed. 30
Note-- See also section 133(2). 31
(6) Section 23(5) does not apply to a retailer in respect of a variation of its 32
standing offer prices as a result of a RoLR cost recovery scheme. 33
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168 Amendment of schemes and determinations 1
A RoLR cost recovery scheme or a RoLR cost recovery scheme 2
distributor payment determination may be amended by determination of 3
the AER-- 4
(a) on application by, or after consultation with, the registered RoLR 5
and after consultation with the distributors who are or will be 6
affected; or 7
(b) on application by a distributor who is or will be affected and after 8
consultation with the registered RoLR and other distributors who 9
are or will be affected. 10
Division 10 Miscellaneous 11
169 Information to be included in customer retail contracts 12
All customer retail contracts for small customers must include a notice 13
explaining what will happen to the customer's arrangements for the 14
purchase of energy if a RoLR event occurs. 15
170 Application for retailer authorisation by failed retailer or associate 16
(1) If a failed retailer or an associate of a failed retailer applies for a retailer 17
authorisation, the AER may-- 18
(a) refuse the application on the ground that the applicant is a failed 19
retailer or an associate of a failed retailer; or 20
(b) grant the application on the condition that the applicant pays a 21
proportion or the whole of the costs of a prior RoLR event as 22
determined by the AER. 23
(2) Any payment determined by the AER under subsection (1) is to be made 24
to the relevant distributors (as determined by the AER) and-- 25
(a) in the case of electricity--the determination by the AER is taken 26
to be a regulatory change event and negative change event for the 27
purposes of the NER and the payment is taken to be a negative 28
pass through amount approved by the AER under the NER; and 29
(b) in the case of gas--the payment is taken to be an approved pass 30
through allowing variation of a distributor's reference tariffs. 31
(3) Subsection (1) does not limit the operation of Part 5 in relation to an 32
application referred to in that subsection. 33
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(4) In this section-- 1
associate, in relation to a failed retailer, has the same meaning it would 2
have under Division 2 of Part 1.2 of the Corporations Act 2001 of the 3
Commonwealth if sections 13, 16(2) and 17 did not form part of that 4
Act. 5
171 Reimbursement of insolvency official 6
(1) In the event of a RoLR event, the insolvency official of a failed retailer 7
is entitled to be indemnified by the relevant designated RoLR for the 8
official's reasonable costs of complying with applicable requirements 9
of the RoLR scheme, a RoLR notice or a RoLR regulatory information 10
notice. 11
(2) Any dispute about the insolvency official's reasonable costs is to be 12
dealt with by the Court in the same way as a dispute as to a liquidator's 13
remuneration is dealt with under section 473 of the Corporations Act 14
2001 of the Commonwealth. 15
172 AER report on RoLR event 16
(1) The AER must prepare, in consultation with AEMO, a report for the 17
MCE on a RoLR event and provide it to the MCE within 80 business 18
days of the transfer date or such later time as the MCE agrees. 19
(2) The report-- 20
(a) must address the facts and circumstances that gave rise to the 21
event; and 22
(b) must describe the actions that the AER, AEMO and the 23
designated RoLRs took with respect to the event; and 24
(c) must, if the MCE has in writing requested it to do so, address or 25
describe any other matter that the MCE so requests; and 26
(d) may contain recommendations as to the handling of future 27
events. 28
(3) The report may contain information given to the AER in confidence but 29
if it does so, it must identify that information in the report. 30
173 Immunity 31
(1) A protected person does not incur any civil monetary liability for an act 32
or omission done or made under or for the purposes of the RoLR scheme 33
unless the act or omission is done or made in bad faith. 34
(2) Without limiting subsection (1), a protected person does not incur any 35
civil monetary liability in respect of the termination of a contract for the 36
sale of energy under section 141. 37
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(3) In this section-- 1
protected person means-- 2
(a) the AER; or 3
(b) AEMO; or 4
(c) a designated RoLR; or 5
(d) a distributor; or 6
(e) an officer or employee of, or another person whose services are 7
used by, a person referred to in paragraphs (a) to (d) (including, 8
without limitation, any staff or consultants who are made 9
available to assist the AER to exercise its functions). 10
174 Authorised disclosure of information 11
To the extent that the information is personal information within the 12
meaning of the Privacy Act 1988 of the Commonwealth or of any Act 13
of a participating jurisdiction relating to privacy-- 14
(a) disclosure of that information to the AER, AEMO, a distributor 15
or a designated RoLR for or in connection with the RoLR scheme 16
is authorised by this Law; and 17
(b) use of that information for or in connection with the RoLR 18
scheme is authorised by this Law. 19
175 Corporations Act displacement 20
This Part is declared to be a Corporations legislation displacement 21
provision for the purposes of section 5G of the Corporations Act 2001 22
of the Commonwealth in relation to the provisions of Chapter 5 of that 23
Act. 24
Note-- Section 5G of the Corporations Act 2001 provides that if a State or 25
Territory law declares a provision of a State or Territory law to be a Corporations 26
legislation displacement provision, any provision of the Corporations legislation 27
with which the State or Territory provision would otherwise be inconsistent does 28
not apply to the extent necessary to avoid the inconsistency. 29
Part 7 Small compensation claims regime 30
Division 1 Preliminary 31
176 Small compensation claims regime 32
(1) This Division establishes a small compensation claims regime to enable 33
small customers to make small claims for compensation from 34
distributors who provide customer connection services to their 35
premises. 36
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(2) The regime does not involve having to establish fault, negligence or bad 1
faith on the part of a distributor in order to receive compensation from 2
the distributor under the regime. 3
177 Definitions 4
In this Division-- 5
claimable incident--see section 178; 6
compensable matter--see section 179; 7
discretionary range means the range of amounts between the maximum 8
amount and the median amount (inclusive of the former but not the 9
latter); 10
mandatory range means the range of amounts between the minimum 11
amount and the median amount (inclusive of both); 12
maximum amount--see section 180; 13
median amount--see section 182; 14
minimum amount--see section 181; 15
property damage means damage to tangible property located on the 16
premises of a small customer, and includes loss or destruction of 17
tangible property located on those premises; 18
repeat claimant--see section 183. 19
Note-- The discretionary and mandatory ranges, and the maximum, median 20
and minimum amounts, can be represented as follows: 21
(Maximum amount) .............................
Discretionary range
(Median amount) .............................
Mandatory range
(Minimum amount) .............................
178 Claimable incidents--meaning 22
(1) A claimable incident is-- 23
(a) an event or circumstance of a kind prescribed by the National 24
Regulations; or 25
(b) an event or circumstance of a kind prescribed by a local 26
instrument of this jurisdiction for small customers in this 27
jurisdiction. 28
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(2) A kind of event or circumstance may be so prescribed by reference to 1
any one or more of the following: 2
(a) a description of the kind of incident; 3
(b) a description of the applicable parameters, a variation outside of 4
which will amount to a claimable incident; 5
(c) a distributor service standard by which a claimable incident is to 6
be determined; 7
(d) other factors specified in the National Regulations or a local 8
instrument of this jurisdiction. 9
179 Compensable matters--meaning 10
(1) Subject to subsection (2), compensable matters are-- 11
(a) except to the extent (if any) provided by the National Regulations 12
or a local instrument of this jurisdiction--property damage 13
caused by a claimable incident; or 14
(b) to the extent (if any) provided by the National Regulations or a 15
local instrument of this jurisdiction--other matters related to a 16
claimable incident. 17
(2) The following are not compensable matters for the purposes of this 18
Division: 19
(a) the death of a person; or 20
(b) personal injury to a person (including any pre-natal injury, any 21
impairment of the person's physical or mental condition and any 22
disease); or 23
(c) except to the extent (if any) provided by the National Regulations 24
or a local instrument of this jurisdiction-- 25
(i) economic loss; or 26
(ii) damage to, loss of or destruction of intangible property; or 27
(d) any matters prescribed by the National Regulations or a local 28
instrument of this jurisdiction as not being compensable matters. 29
Note-- Matters that are not compensable matters for the purposes of this 30
Division may be able to be dealt with under the general law or in other ways. 31
180 Maximum amount--meaning 32
(1) The purpose of this section is to provide for maximum amounts, so that 33
a distributor is not liable to pay compensation to a small customer under 34
this Division if the amount claimed is more than the relevant maximum 35
amount (see section 189). 36
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(2) The maximum amount for a claim is-- 1
(a) the amount or amounts prescribed by a local instrument of this 2
jurisdiction for small customers in this jurisdiction; or 3
(b) to the extent the amount is not determined under paragraph (a) for 4
a kind of claimable incident--the amount determined from time 5
to time by the AER, which may differ between jurisdictions and 6
according to the kinds of claimable incidents. 7
181 Minimum amount--meaning 8
(1) The purpose of this section is to provide for minimum amounts, so that 9
a distributor is not liable to pay compensation to a small customer under 10
this Division if the amount claimed is less than the relevant minimum 11
amount (see section 188). 12
(2) The minimum amount for a claim is-- 13
(a) the amount or amounts prescribed by a local instrument of this 14
jurisdiction for small customers in this jurisdiction; or 15
(b) to the extent the amount is not determined under paragraph (a) for 16
a kind of claimable incident--the amount determined from time 17
to time by the AER, which may differ between jurisdictions and 18
according to the kinds of claimable incidents. 19
182 Median amount--meaning 20
(1) The purpose of this section is to provide for median amounts for the 21
purpose of separating the discretionary range and the mandatory range. 22
(2) The median amount for a claim is-- 23
(a) the amount or amounts prescribed by a local instrument of this 24
jurisdiction for small customers in this jurisdiction; or 25
(b) to the extent the amount is not determined under paragraph (a) for 26
a kind of claimable incident--the amount determined from time 27
to time by the AER and notified to the distributors concerned, 28
which may differ between jurisdictions and according to the 29
kinds of claimable incident. 30
183 Repeat claimant--meaning 31
(1) The purpose of this section is to define the meaning of the term repeat 32
claimant, by reference to a number determined under this section as the 33
repeated claims maximum number, so that a distributor who receives 34
equal to or more than the maximum number of claims for compensation 35
from a small customer has a number of options for dealing with the 36
claims (see section 193). 37
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(2) The repeated claims maximum number is the number determined from 1
time to time by the AER and notified to the distributors concerned, 2
which may differ between jurisdictions and according to the kinds of 3
claimable incidents. 4
(3) The repeated claims maximum number is to be determined by reference 5
to a particular period or periods, which may be either a set period (for 6
example, a year commencing on 1 January) or a moveable period (for 7
example, any year commencing on any date). 8
(4) A small customer who makes a number of claims equal to or exceeding 9
the repeated claims maximum number in a particular period becomes a 10
repeat claimant for the purposes of this Division. 11
(5) A small customer continues to be a repeat claimant until the end of 12
2 periods after becoming a repeat claimant, being consecutive periods 13
each of the same length as the particular period referred to in 14
subsection (3). 15
184 AER determinations of minimum amount, median amount and repeated 16
claims maximum number 17
(1) This section applies in relation to this jurisdiction only if and to the 18
extent a local instrument of this jurisdiction declares that this section 19
applies in relation to this jurisdiction. 20
(2) If the AER decides to determine an amount or number under section 21
180, 181, 182 or 183 for a jurisdiction, the AER must do so-- 22
(a) after consultation with responsible officers for the jurisdiction; 23
and 24
(b) having regard to the following so far as they are relevant: 25
(i) the current or proposed maximum amount for the 26
jurisdiction; 27
(ii) the current or proposed minimum amount for the 28
jurisdiction; 29
(iii) the current or proposed median amount for the jurisdiction; 30
and 31
(c) having regard to-- 32
(i) the nature and number of relevant claimable incidents for 33
the jurisdiction; and 34
(ii) any other relevant matters. 35
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Division 2 Compensation generally 1
185 When compensation is payable 2
(1) Compensation is payable under this Division to a small customer by a 3
distributor under a claim for compensation properly made in respect of 4
a claimable incident when-- 5
(a) it is established that-- 6
(i) the distributor provided customer connection services to 7
the premises of the small customer at the relevant time; and 8
(ii) the claimable incident occurred; and 9
(iii) the claim is for a compensable matter arising from or 10
connected with the claimable incident; and 11
(iv) the amount claimed and the amount payable are within the 12
range between the minimum amount and the maximum 13
amount (inclusive of both amounts); and 14
(b) any applicable requirements of this Division and the Rules are 15
satisfied. 16
(2) Compensation is monetary in nature. 17
186 Duty of distributor to provide information and advice 18
(1) Each distributor must develop and publish on its website-- 19
(a) a summary of the small compensation claims regime in a form 20
that will be readily understood by the average small customer; 21
and 22
(b) a copy of a claim form that complies with section 187 that is able 23
to be downloaded. 24
(2) A distributor must, within 2 business days of a person making contact 25
with the distributor in relation to a potential claimable incident-- 26
(a) inform the person of the existence of the small compensation 27
claims regime and that the regime provides for small customers 28
affected by certain events to seek compensation; and 29
(b) advise the person that the distributor's summary of the small 30
compensation claims regime, and a copy of a claim form, is 31
available on its website; and 32
(c) send to the person a copy of its claim form on request and at no 33
charge. 34
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Division 3 Claims process 1
187 Making of claims 2
(1) A small customer may make a claim for compensation in respect of a 3
claimable incident from a distributor who provides customer 4
connection services to the premises of the customer. 5
(2) A completed claim form must include the following: 6
(a) the name and contact details of the small customer; 7
(b) the address of the premises that were affected by the claimable 8
incident and that are the subject of the claim; 9
(c) the time and date of the claimable incident; 10
(d) a description of the compensable matter in respect of which the 11
claim is made; 12
(e) the amount of compensation the customer claims is necessary to 13
compensate the customer in respect of the compensable matter; 14
(f) for claims for property damage, justification for the amount 15
claimed, being-- 16
(i) the cost of replacing the property with property of 17
substantially the same age, functionality and appearance; 18
or 19
(ii) the cost of repairing the property to substantially the same 20
functionality and appearance, 21
which must be supported by quotes, receipts or other evidence. 22
(3) A small customer may make only one claim in respect of a claimable 23
incident, but the customer may, with the concurrence of the distributor, 24
substitute a revised claim (which is then taken to be the only claim made 25
by the customer in respect of the incident). 26
(4) If a distributor receives more than one claim from a small customer in 27
respect of a claimable incident, then (subject to subsection (3))-- 28
(a) the distributor may reject all the claims other than the first claim 29
received; and 30
(b) the distributor may (for the purposes of paragraph (a)) treat one 31
of two or more of the claims received on the first or only day 32
claims are received from the customer as being the first claim 33
received. 34
(5) A claim for property damage may relate to property not owned by the 35
small customer, as well as to property owned by the customer. 36
(6) A claim may relate to one or more items. 37
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(7) A distributor must use its best endeavours to deal with claims in a timely 1
manner. 2
188 Claims for less than the minimum amount 3
(1) A distributor may reject a claim for compensation if the amount claimed 4
is less than the minimum amount for the claimable incident. 5
(2) This section does not limit the grounds on which a claim can be rejected. 6
189 Claims for more than the maximum amount 7
(1) If a claim for compensation is for more than the maximum amount, the 8
distributor must advise the small customer that-- 9
(a) the distributor will revise the claim to reduce it so that it does not 10
exceed the maximum amount if the customer so requests within 11
a specified period of at least 5 business days; or 12
(b) the distributor will reject the claim if no such request is received 13
within that period. 14
(2) If the small customer makes the request within the specified period, the 15
distributor must revise the claim in accordance with the request. 16
(3) If the small customer does not make the request within the specified 17
period, the distributor may reject the claim. 18
(4) This section does not limit the grounds on which a claim can be rejected. 19
190 Confirmation of claims involving property damage 20
(1) If a distributor is not able to confirm that a claimable incident involving 21
property damage did affect the small customer's premises in the manner 22
claimed, the distributor may request the customer to provide the 23
distributor with a statement by a suitably qualified person that the 24
property damage claimed was caused by or is consistent with a 25
claimable incident having occurred. 26
(2) The distributor must accept the statement as a satisfactory statement, 27
unless the distributor believes on reasonable grounds that-- 28
(a) the person giving it is not suitably qualified in relation to the 29
claimable incident; or 30
(b) the statement is on its face false, misleading or inaccurate in a 31
material particular. 32
(3) If the claim is for an amount within the mandatory range, the distributor 33
must (subject to subsection (2)) accept the statement as proof that the 34
property damage was likely to be caused by or is consistent with the 35
occurrence of a claimable incident. 36
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(4) If the claim is for an amount within the discretionary range, the 1
distributor may make reasonable requests for other information or 2
evidence for the purpose of determining the claim. 3
191 Claims for amounts within the mandatory range 4
(1) This section applies where-- 5
(a) a small customer provides-- 6
(i) a completed claim form in accordance with the 7
requirements of section 187; and 8
(ii) a satisfactory statement, if relevant and if requested, under 9
section 190; and 10
(b) the amount claimed is within the mandatory range; and 11
(c) it is established that the claimable incident occurred; and 12
(d) it is established that the claim is a compensable matter; and 13
(e) the claim is not rejected; and 14
(f) section 193 does not apply to the claim. 15
(2) The distributor must pay the customer the amount claimed without 16
reducing or disputing the quantum of the amount. 17
192 Claims for amounts in the discretionary range 18
(1) This section applies where-- 19
(a) a small customer provides-- 20
(i) a completed claim form in accordance with the 21
requirements of section 187; and 22
(ii) a satisfactory statement and other information or evidence, 23
if relevant and if requested, under section 190; and 24
(b) the amount claimed is within the discretionary range; and 25
(c) it is established that the claimable incident occurred; and 26
(d) it is established that the claim is a compensable matter; and 27
(e) the claim is not rejected; and 28
(f) section 193 does not apply to the claim. 29
(2) The distributor may carry out its own assessment of the claim. 30
(3) The distributor must-- 31
(a) pay the small customer the amount claimed; or 32
(b) pay the small customer a lesser amount (whether within or below 33
the discretionary range), on the basis that a lesser amount is 34
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sufficient to compensate the customer in relation to the claimable 1
incident and premises concerned. 2
(4) In the case of property damage, the lesser amount referred to in 3
subsection (3)(b) must be such as to ensure that the customer should be 4
no worse off, by being either-- 5
(a) the cost of replacing the property with property of substantially 6
the same age, functionality and appearance; or 7
(b) the cost of repairing the property to substantially the same 8
functionality and appearance. 9
(5) A distributor is not obliged to compensate a business customer above 10
the median amount where the business customer has not taken 11
reasonable precautions to minimise the risk of property damage. 12
193 Claims by repeat claimants 13
(1) This section applies to a claim for compensation where-- 14
(a) the small customer making the claim for compensation to a 15
distributor is a repeat claimant in relation to the distributor and 16
the period during which it is made; and 17
(b) the distributor would, apart from this section, be liable to pay 18
compensation (whether within the discretionary range or the 19
mandatory range) under the claim in accordance with other 20
provisions of this Division; and 21
(c) the distributor reasonably considers the claim forms part of an 22
abuse of the small compensation claims regime. 23
(2) The distributor may-- 24
(a) pay the small customer the amount claimed; or 25
(b) pay the small customer a lesser amount, which may be any 26
amount at or above the minimum amount; or 27
(c) reject the claim. 28
194 Distributor to reimburse customer for reasonable costs of claim 29
If a distributor pays compensation to a small customer under this 30
Division, the distributor must pay to the person the amount of any 31
reasonable costs incurred by the person in providing any quotes or 32
evidence to the distributor (such as obtaining a statement from a 33
qualified person). 34
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195 Rejection of claims 1
Without affecting other provisions of this Part providing for the 2
rejection of claims, a distributor may reject a claim for compensation if 3
the distributor reasonably believes-- 4
(a) the occurrence of the claimable incident concerned was not 5
established; or 6
(b) the occurrence or existence of the compensable matter was not 7
established; or 8
(c) there are other grounds warranting rejection of the claim. 9
196 Distributor to advise customer of reasons for reducing or rejecting claim 10
and of review rights 11
If the amount paid is less than the amount claimed by the person, or if 12
the distributor has rejected the person's claim, the distributor must, as 13
soon as practicable-- 14
(a) provide the person with reasons; and 15
(b) inform the person that if they are dissatisfied with the decision, 16
the person has a right to refer a complaint or dispute to the 17
relevant energy ombudsman. 18
197 Small customer complaint or dispute resolution 19
A small customer who is dissatisfied with a decision of a distributor 20
under this Division in relation to the customer's claim for compensation 21
may lodge a complaint with the relevant energy ombudsman. 22
Division 4 Payment of compensation 23
198 Method of payment 24
A payment of compensation payable to a small customer under this 25
Division is to be made by the distributor as soon as practicable, by-- 26
(a) unless paragraph (b) applies--a credit on the customer's next bill 27
from their retailer by arrangement with the relevant retailer; or 28
(b) at the customer's election--direct payment by the distributor to 29
the customer by-- 30
(i) cheque or electronic funds transfer; or 31
(ii) any other method agreed to by the customer. 32
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199 Finality of payment of compensation 1
If a small customer is compensated (whether as a result of a decision of 2
the distributor or a decision of the relevant energy ombudsman) in 3
respect of a claimable incident that affected particular premises-- 4
(a) the customer cannot make any further claim (under this Division 5
or otherwise) against the distributor in respect of that incident as 6
affecting those premises; and 7
(b) without limitation, the customer cannot commence or maintain 8
proceedings for damages in respect of that incident as affecting 9
those premises; and 10
(c) the distributor has no further liability (under this Division or 11
otherwise) to that customer in respect of that incident as affecting 12
those premises. 13
Division 5 Miscellaneous 14
200 Other remedies 15
(1) Apart from section 199, nothing in this Part prevents a small customer 16
from commencing or maintaining proceedings for damages in respect of 17
a claimable incident in a court of competent jurisdiction. 18
(2) If a small customer enforces or attempts to enforce any other right they 19
have apart from this Part against the distributor in respect of a claimable 20
incident, the distributor-- 21
(a) is not obliged-- 22
(i) to continue to deal with a claim for compensation already 23
made under this Part; or 24
(ii) to deal with a claim for compensation subsequently made 25
under this Part; and 26
(b) may reject the claim. 27
201 Payment of compensation not to be admission of fault, negligence or 28
bad faith 29
In deciding to make a payment of compensation under this Part, a 30
distributor does not admit fault, negligence or bad faith in respect of the 31
claimable incident concerned. 32
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202 Requirement to keep records on regime activities 1
(1) A distributor must-- 2
(a) create a record of each claim for compensation made under this 3
Part, including a record of how the claim was processed and 4
determined; and 5
(b) retain the record for at least 2 years. 6
(2) The record must be in such a format and include such information as 7
will enable-- 8
(a) the AER to verify the distributor's compliance with the relevant 9
requirements of this Part and the Rules relating to claims for 10
compensation; and 11
(b) the distributor to answer any enquiries from a small customer 12
relating to the customer's claim. 13
(3) A distributor must, on request by a small customer and at no charge, 14
provide the customer with access to a copy of the record of any claim 15
for compensation made by the customer under this Part and then 16
retained by the distributor. 17
203 Rules 18
The Rules may make provision for or with respect to the small 19
compensation claims regime, including-- 20
(a) the period during which a claim for compensation may only be 21
made; and 22
(b) the rejection of a claim for compensation made after that period. 23
Part 8 Functions and powers of the Australian Energy 24
Regulator 25
Division 1 General 26
204 Functions and powers of AER (including delegations) 27
(1) The AER has the following functions and powers: 28
(a) to monitor compliance by persons with this Law, the National 29
Regulations and the Rules; 30
(b) without limiting paragraph (a), to monitor and report on 31
compliance by regulated entities with this Law, the National 32
Regulations and the Rules; 33
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(c) to investigate breaches or possible breaches of provisions of this 1
Law, the National Regulations or the Rules, including offences 2
against this Law; 3
(d) to institute and conduct proceedings in relation to breaches of 4
provisions of this Law, the National Regulations or the Rules, 5
including offences against this Law; 6
(e) to institute and conduct appeals from decisions in proceedings 7
referred to in paragraph (d); 8
(f) AER regulatory functions or powers; 9
(g) any other functions and powers conferred on it under this Law, 10
the National Regulations or the Rules. 11
(2) The AER has the power to do all things necessary or convenient to be 12
done for or in connection with the performance and exercise of its 13
functions and powers. 14
(3) Any delegation by the AER under section 44AAH of the Competition 15
and Consumer Act 2010 of the Commonwealth extends to, and has 16
effect for the purposes of, this Law, the National Regulations and the 17
Rules. 18
205 Manner in which AER performs AER regulatory functions or powers 19
The AER must, in performing or exercising an AER regulatory function 20
or power, perform or exercise that function or power in a manner that 21
will or is likely to contribute to the achievement of the national energy 22
retail objective and where relevant, in a manner that is compatible with 23
the development and application of consumer protections for small 24
customers, including (but not limited to) protections relating to hardship 25
customers. 26
Division 2 General information gathering powers 27
206 Power to obtain information and documents 28
(1) If the AER has reason to believe that a person is capable of providing 29
information or producing a document that the AER requires for the 30
performance or exercise of a function or power conferred on it under 31
this Law, the National Regulations, the Rules or an application Act, the 32
AER may serve on that person a notice (a relevant notice). 33
(2) A relevant notice may require the person to-- 34
(a) provide to the AER, by writing signed by that person or, in the 35
case of a body corporate, by a competent officer of the body 36
corporate, within the time and in the manner specified in the 37
notice, any information of the kind referred to in subsection (1); 38
or 39
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(b) produce to the AER, or to a person specified in the notice acting 1
on its behalf, in accordance with the notice, any documents of the 2
kind referred to in subsection (1). 3
(3) A person on whom a relevant notice is served must comply with the 4
relevant notice unless the person has a reasonable excuse. 5
Maximum penalty: 6
(a) in the case of a natural person--$2 000; 7
(b) in the case of a body corporate--$10 000. 8
(4) A person must not, in purported compliance with a relevant notice, 9
provide information that the person knows is false or misleading in a 10
material particular. 11
Maximum penalty: 12
(a) in the case of a natural person--$2 000; 13
(b) in the case of a body corporate--$10 000. 14
(5) It is a reasonable excuse for the purposes of subsection (3) if the person 15
served the relevant notice is not capable of complying with that notice. 16
(6) It is a reasonable excuse for a natural person to-- 17
(a) fail to provide information of the kind referred to in subsection 18
(1) to the AER; or 19
(b) fail to produce a document of the kind referred to in subsection 20
(1) to the AER, or to a person specified in a relevant notice acting 21
on behalf of the AER, 22
if to do so might tend to incriminate the person, or make the person 23
liable to a criminal penalty, under a law of this jurisdiction or another 24
jurisdiction in Australia (whether or not that other jurisdiction is a 25
participating jurisdiction). 26
(7) It is not a reasonable excuse for a person to-- 27
(a) fail to provide information of the kind referred to in 28
subsection (1) to the AER; or 29
(b) fail to produce a document of the kind referred to in 30
subsection (1) to the AER, or to a person specified in a relevant 31
notice acting on behalf of the AER, 32
on the ground of any duty of confidence. 33
(8) This section does not require a person to-- 34
(a) provide information that is the subject of legal professional 35
privilege; or 36
(b) produce a document the production of which would disclose 37
information that is the subject of legal professional privilege. 38
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(9) This section does not require a person to-- 1
(a) provide information that would disclose the contents of a 2
document prepared for the purposes of a meeting of the Cabinet 3
or a committee of the Cabinet of the Commonwealth or of a State 4
or a Territory; or 5
(b) produce a document prepared for the purposes of a meeting of the 6
Cabinet or a committee of the Cabinet of the Commonwealth or 7
of a State or a Territory; or 8
(c) provide information, or produce a document, that would disclose 9
the deliberations of the Cabinet or a committee of the Cabinet of 10
the Commonwealth or of a State or a Territory. 11
(10) A person incurs, by complying with a relevant notice, no liability for 12
breach of contract, breach of confidence or any other civil wrong. 13
Division 3 Disclosure of confidential information held by 14
AER 15
207 Confidentiality 16
Section 44AAF of the Competition and Consumer Act 2010 of the 17
Commonwealth has effect for the purposes of this Law, the National 18
Regulations and the Rules as if it formed part of this Law. 19
208 Authorised disclosure of information given to AER in confidence 20
The AER is authorised to disclose information given to it in confidence 21
in, or in connection with, the performance or exercise of its functions or 22
powers under this Law or the Rules subject to and in accordance with 23
this Division. 24
209 Disclosure with prior written consent is authorised 25
The AER is authorised to disclose information given to it in confidence 26
if the AER has the written consent to do so of-- 27
(a) the person who gave the information; or 28
(b) the person from whom the person referred to in paragraph (a) 29
received that information. 30
210 Disclosure for purposes of court and tribunal proceedings and to accord 31
natural justice 32
The AER is authorised to disclose information given to it in 33
confidence-- 34
(a) for the purposes of civil or criminal proceedings; or 35
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(b) for the purposes of proceedings before the Tribunal under 1
Division 7 of Part 13; or 2
(c) for the purposes of according natural justice to a person affected 3
by a decision (however described) of the AER under this Law or 4
the Rules. 5
211 Disclosure of information given to AER with confidential information 6
omitted 7
(1) This section applies if-- 8
(a) in compliance with this Law or the Rules or voluntarily, a person 9
gives the AER information in confidence; and 10
(b) that information is contained in a document with other 11
information. 12
(2) The AER may disclose the document with the information given in 13
confidence omitted. 14
(3) The AER must include a note at the place in the document from which 15
the information given in confidence is omitted to the effect that that 16
information has been omitted from the document. 17
212 Disclosure of information given in confidence does not identify anyone 18
The AER is authorised to disclose the information given to it in 19
confidence, in compliance with this Law or the Rules or voluntarily, 20
if-- 21
(a) it does not disclose any elements of the information that could 22
lead to the identification of the person to whom that information 23
relates; or 24
(b) the manner in which it discloses the information does not identify 25
the person to whom that information relates. 26
213 Disclosure of information that has entered the public domain 27
The AER is authorised to disclose information given to it in confidence, 28
in compliance with this Law or the Rules or voluntarily, if the 29
information is already in the public domain. 30
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214 Disclosure of confidential information authorised if detriment does not 1
outweigh public benefit 2
(1) Despite sections 211, 212 and 213 but subject to this section, the AER 3
is authorised to disclose information given to it in confidence after the 4
restricted period if the AER is of the opinion-- 5
(a) that the disclosure of the information would not cause detriment 6
to the person who has given it or to the person from whom that 7
person received it; or 8
(b) that, although the disclosure of the information would cause 9
detriment to such a person, the public benefit in disclosing it 10
outweighs that detriment. 11
(2) Before disclosing the information, the AER must give the person who 12
gave the information-- 13
(a) a notice (an initial disclosure notice) stating-- 14
(i) that the AER wishes to disclose the information, 15
specifying the nature of the intended disclosure; and 16
(ii) that the AER is of the opinion required by subsection (1); 17
and 18
(iii) that the person, within the period specified in the notice, 19
may make representations to the AER not to disclose the 20
information; and 21
(b) the AER's decision, in writing, setting out the reasons why the 22
AER-- 23
(i) wishes to make the disclosure; and 24
(ii) is of the opinion required by subsection (1). 25
(3) If the AER is aware that the person who gave the information in turn 26
received the information from another person and is aware of that other 27
person's identity and address, the AER must, before disclosing the 28
information give that other person-- 29
(a) a notice (an initial disclosure notice) stating-- 30
(i) that the AER wishes to disclose the information, 31
specifying the nature of the intended disclosure; and 32
(ii) that the AER is of the opinion required by subsection (1); 33
and 34
(iii) that the person, within the period specified in the notice, 35
may make representations to the AER not to disclose the 36
information; and 37
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(b) the AER's decision, in writing, setting out the reasons why the 1
AER-- 2
(i) wishes to make the disclosure; and 3
(ii) is of the opinion required by subsection (1). 4
(4) The AER must consider every representation made to it by a person 5
given an initial disclosure notice within the time specified in the notice. 6
(5) The period of time specified in an initial disclosure notice must not be 7
less than 5 business days after the date the initial disclosure notice is 8
given to the person. 9
(6) If after considering the representations, the AER wishes to disclose the 10
information, the AER must give the person given the initial disclosure 11
notice-- 12
(a) a notice (a further disclosure notice) stating-- 13
(i) that the AER wishes to disclose the information, 14
specifying the nature of the intended disclosure; and 15
(ii) that the AER is of the opinion required by subsection (1); 16
and 17
(b) the AER's decision, in writing, setting out the reasons why the 18
AER-- 19
(i) wishes to make the disclosure; and 20
(ii) is of the opinion required by subsection (1). 21
(7) For the purposes of this section, the disclosure of anything that is 22
already in the public domain at the time the AER wishes to disclose it 23
cannot cause detriment to any person referred to in subsection (2) or (3). 24
(8) In this section-- 25
restricted period means a period of 5 business days after-- 26
(a) an initial disclosure notice has been given under this section; or 27
(b) a further disclosure notice has been given under this section, 28
whichever is the later. 29
Division 4 Miscellaneous matters 30
215 Consideration by the AER of submissions or comments made to it under 31
this Law or the Rules 32
If, under this Law or the Rules, the AER publishes a notice inviting 33
submissions in relation to the making of a decision by the AER, the 34
AER, in making the decision-- 35
(a) must consider every submission it receives within the period 36
specified in the notice; and 37
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(b) may, but need not, consider a submission it receives after the 1
period specified in the notice expires. 2
216 Use of information provided under a notice under Division 2 3
The AER may use information provided to it by a person in compliance 4
with a notice under section 206 for any purpose connected with the 5
performance or exercise of a function or power of the AER under-- 6
(a) this Law or the Rules; or 7
(b) the NEL or NER; or 8
(c) the NGL or NGR. 9
217 AER to inform certain persons of decisions not to investigate breaches, 10
institute proceedings or serve infringement notices 11
(1) If the AER is given information by any person in relation to a breach or 12
a possible breach of this Law, the National Regulations or the Rules by 13
a person but-- 14
(a) decides not to investigate that breach or possible breach; or 15
(b) following an investigation, decides not to-- 16
(i) institute any proceedings in respect of that breach or 17
possible breach under Part 13; or 18
(ii) serve an infringement notice referred to in section 308 in 19
respect of that breach or possible breach, 20
the AER must notify that person of that decision in writing. 21
(2) This section does not apply: 22
(a) if the person gave the information to the AER anonymously; or 23
(b) to the extent the AER resolved the matter to which the 24
information relates by referring the person to the energy 25
ombudsman. 26
218 AER enforcement guidelines 27
(1) The AER may prepare guidelines about the matters it will have regard 28
to before-- 29
(a) making an application under section 291; or 30
(b) serving an infringement notice under section 308. 31
(2) The AER must publish guidelines prepared under subsection (1) on its 32
website. 33
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219 Single documentation 1
(1) This section applies if the AER is authorised to prepare a document 2
under this Law or the Rules for a purpose and is also authorised to 3
prepare a document or documents under either or both-- 4
(a) the NEL or NER; or 5
(b) the NGL or NGR, 6
for the same or a similar, related or corresponding purpose. 7
(2) The AER may satisfy the requirements of this Law and the Rules 8
regarding the document under this Law and the Rules by preparing and 9
making (and where relevant publishing) a single document. 10
220 Use of information 11
(1) The AER may use the information obtained under this Law or the Rules 12
for a purpose connected with the performance or exercise of a function 13
or power of the AER under the NEL, NER, NGL or NGR. 14
(2) The AER may use the information obtained under the NEL, NER, NGL 15
or NGR for a purpose connected with the performance or exercise of a 16
function or power of the AER under this Law or the Rules. 17
(3) This section does not limit any other provision of this Law that provides 18
for the use of information obtained under this Law or the Rules. 19
(4) This section does not apply to information obtained under a RoLR 20
regulatory information notice under Part 6. 21
Part 9 Functions and powers of the Australian Energy 22
Market Commission 23
Division 1 General 24
221 Functions and powers of the AEMC 25
(1) The AEMC has the following functions and powers: 26
(a) the Rule making functions and powers conferred on it under this 27
Law and the National Regulations; and 28
(b) the market development functions conferred on it under this Law 29
and the Rules; and 30
(c) any other functions and powers conferred on it under this Law 31
and the Rules. 32
(2) The AEMC has power to do all things necessary or convenient to be 33
done for or in connection with the performance of its functions. 34
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222 Delegations 1
Any delegation by the AEMC under section 20 of the Australian Energy 2
Market Commission Establishment Act 2004 of South Australia extends 3
to, and has effect for the purposes of, this Law, the National Regulations 4
and the Rules. 5
223 Confidentiality 6
Section 24 of the Australian Energy Market Commission Establishment 7
Act 2004 of South Australia has effect for the purposes of this Law, the 8
National Regulations and the Rules as if it formed part of this Law. 9
Note-- See also sections 234 and 268 of this Law. 10
224 AEMC must have regard to national energy retail objective 11
In performing or exercising any function or power under this Law, the 12
National Regulations or the Rules, the AEMC must have regard to the 13
national energy retail objective. 14
225 AEMC must have regard to MCE statements of policy principles in 15
relation to Rule making and reviews 16
The AEMC must have regard to any relevant MCE statement of policy 17
principles-- 18
(a) in making a Rule; or 19
(b) in conducting a review under section 232. 20
Division 2 Rule making functions and powers of the AEMC 21
226 Rule making powers 22
The rule making functions and powers of the AEMC are set out in 23
Part 10. 24
Division 3 Committees, panels and working groups of the 25
AEMC 26
227 Establishment of committees and panels and working groups 27
The AEMC may establish committees, panels and working groups to-- 28
(a) provide advice on specified aspects of the AEMC's functions; or 29
(b) undertake any other activity in relation to the AEMC's functions 30
as is specified by the AEMC. 31
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Division 4 MCE directed reviews 1
228 MCE directions 2
(1) The MCE may give a written direction to the AEMC that the AEMC 3
conduct a review into-- 4
(a) any matter relating to the sale and supply of energy to customers; 5
or 6
(b) the operation and effectiveness of the Rules; or 7
(c) any matter relating to the National Regulations or the Rules; or 8
(d) the effectiveness of competition in a market for energy for the 9
purpose of giving advice about whether to retain, remove or 10
reintroduce price controls on prices for customer retail services. 11
(2) A direction given to the AEMC under this section is binding on the 12
AEMC and must be complied with despite anything to the contrary in 13
the Rules. 14
(3) A direction given under this section must be published in the South 15
Australian Government Gazette. 16
(4) The AEMC must cause a direction given under this section to be 17
published on its website. 18
229 Terms of reference 19
(1) The terms of reference of a MCE directed review will be as specified in 20
the direction given by the MCE. 21
Example-- The terms of reference may require a MCE directed review to be 22
conducted-- 23
(a) about a specific matter within a specified time; or 24
(b) whenever a specified event occurs; or 25
(c) on an annual basis. 26
(2) Without limiting subsection (1), the MCE may in its direction to the 27
AEMC do one or more of the following: 28
(a) require the AEMC to give a report on a MCE directed review to 29
the MCE within a specified period; 30
(b) require the AEMC to make the report on a MCE directed review 31
publicly available or available to specified persons or bodies; 32
(c) require the AEMC to make a draft report publicly available or 33
available to specified persons or bodies during a MCE directed 34
review; 35
(d) require the AEMC to consider specified matters in the conduct of 36
a MCE directed review; 37
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(e) require the AEMC to have specified objectives in the conduct of 1
a MCE directed review which need not be limited by the national 2
energy retail objective; 3
(f) give the AEMC other specific directions in respect of the conduct 4
of a MCE directed review. 5
230 Notice of MCE directed review 6
(1) The AEMC must publish notice of a MCE directed review on its 7
website and in a newspaper circulating generally throughout Australia. 8
(2) The AEMC must publish a further such notice if a term of reference or 9
a requirement or direction relating to the MCE directed review is varied. 10
231 Conduct of MCE directed review 11
Subject to any requirement or direction of the MCE, a MCE directed 12
review-- 13
(a) may be conducted in such manner as the AEMC considers 14
appropriate; and 15
(b) may (but need not) involve public hearings. 16
Division 5 Other reviews 17
232 Reviews by AEMC 18
(1) The AEMC may conduct a review into-- 19
(a) the operation and effectiveness of the Rules; or 20
(b) any matter relating to the Rules. 21
(2) A review-- 22
(a) may be conducted in such manner as the AEMC considers 23
appropriate; and 24
(b) may (but need not) involve public hearings. 25
(3) During the course of a review, the AEMC may-- 26
(a) consult with any person or body that it considers appropriate; 27
(b) establish working groups to assist it in relation to any aspect, or 28
any matter or thing that is the subject, of the review; 29
(c) commission reports by other persons on its behalf on any aspect, 30
or matter or thing that is the subject, of the review; 31
(d) publish discussion papers or draft reports. 32
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(4) At the completion of a review, the AEMC must-- 1
(a) give a copy of the report to the MCE; and 2
(b) publish a report or a version of a report from which confidential 3
information has been omitted in accordance with section 234. 4
Division 6 Miscellaneous 5
233 Fees 6
The AEMC may charge a fee specified, or a fee calculated in 7
accordance with a formula or methodology specified, in the National 8
Regulations for services provided by it in performing or exercising any 9
of its functions or powers under this Law, the National Regulations or 10
the Rules. 11
234 Confidentiality of information 12
(1) Information provided to the AEMC for the purposes of a MCE directed 13
review or a review conducted by the AEMC under section 232 is 14
confidential information for the purposes of Division 4 or 5 if-- 15
(a) the person who provides it claims, when providing it to the 16
AEMC, that it is confidential information; and 17
(b) the AEMC decides that the information is confidential 18
information. 19
(2) Nothing prevents the disclosure of confidential information in a report 20
to the MCE or a Minister of a participating jurisdiction under Division 21
4 or 5, but the AEMC must ensure that the information is identified as 22
such in the report. 23
(3) If the AEMC decides that information provided to it for the purposes of 24
a MCE directed review, or a review conducted by the AEMC under 25
section 232, is confidential information, the AEMC, the MCE or a 26
Minister of a participating jurisdiction may only make public a version 27
of the report from which the information has been omitted. 28
(4) If information is omitted from a published version of a report as being 29
confidential information, a note to that effect must be included in the 30
report at the place in the report from which the information is omitted. 31
Note-- See section 223 and 268 of this Law and section 24 of the Australian 32
Energy Market Commission Establishment Act 2004 of South Australia. 33
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Part 10 National Energy Retail Rules 1
Division 1 General 2
Subdivision 1 Interpretation 3
235 Definitions 4
In this Part-- 5
AEMC initiated Rule means a Rule of the kind referred to in 6
section 243(2); 7
AEMC Rule review means a review conducted by the AEMC under 8
Division 5 of Part 9; 9
draft Rule determination means a determination of the AEMC under 10
section 256; 11
energy regulatory body means-- 12
(a) the AER; or 13
(b) AEMO; 14
market initiated proposed Rule means a request for a Rule made under 15
section 243(1) in respect of which the AEMC publishes a notice under 16
section 251; 17
more preferable Rule has the meaning given by section 244; 18
non-controversial Rule means a Rule that is unlikely to have a 19
significant effect on a market for energy or the regulation of customer 20
connection services; 21
proposed Rule means-- 22
(a) a market initiated proposed Rule; or 23
(b) a proposal for an AEMC initiated Rule; or 24
(c) a proposed more preferable Rule; 25
publish means-- 26
(a) in relation to a notice required to be published under this Part 27
(except section 238 or 261)--publish in the South Australian 28
Government Gazette, on the AEMC's website and in a 29
newspaper circulating generally throughout Australia; or 30
(b) in relation to a proposed Rule referred to in section 251 and any 31
other documents prescribed by the National Regulations in 32
relation to a proposed Rule referred to in section 251--publish on 33
the AEMC's website and make available at the offices of the 34
AEMC; or 35
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(c) in relation to a draft Rule determination or final Rule 1
determination--publish on the AEMC's website and make 2
available at the offices of the AEMC; or 3
(d) in relation to any submissions or comments received by the 4
AEMC under this Part--subject to section 268, publish on the 5
AEMC's website and make available at the offices of the AEMC; 6
or 7
(e) in relation to a report prepared under section 269--publish on the 8
AEMC's website and make available at the offices of the AEMC; 9
urgent Rule means a Rule relating to any matter or thing that, if not 10
made as a matter of urgency, will result in that matter or thing 11
prejudicing or threatening-- 12
(a) the provision of energy services to customers, including 13
customer retail services and customer connection services; or 14
(b) the sale and supply of energy to customers. 15
Subdivision 2 Rule making test 16
236 Application of national energy retail objective 17
(1) The AEMC may only make a Rule if it is satisfied that the Rule will or 18
is likely to contribute to the achievement of the national energy retail 19
objective. 20
(2) For the purposes of subsection (1)-- 21
(a) the AEMC may give such weight to any aspect of the national 22
energy retail objective as it considers appropriate in all the 23
circumstances; and 24
(b) where relevant, the AEMC must satisfy itself that the Rule is 25
compatible with the development and application of consumer 26
protections for small customers, including (but not limited to) 27
protections relating to hardship customers; and 28
(c) the AEMC must have regard to any relevant MCE statement of 29
policy principles. 30
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Division 2 National Energy Retail Rules generally 1
237 Subject matters of Rules 2
(1) Rules, to be known, collectively, as the "National Energy Retail Rules", 3
may be made for or with respect to-- 4
(a) regulating-- 5
(i) the provision of energy services to customers, including 6
customer retail services and customer connection services; 7
and 8
(ii) the activities of persons involved in the sale and supply of 9
energy to customers; and 10
(b) any matter or thing contemplated by this Law or necessary or 11
expedient for the purposes of this Law. 12
Note-- The procedure for making initial Rules by the South Australian Minister 13
is set out in Division 3, and the procedure for making subsequent Rules by the 14
AEMC is set out in Division 4. 15
(2) Without limiting subsection (1), the Rules may make provision for or 16
with respect to the following matters: 17
(a) the rights and obligations between distributors and retailers who 18
have shared customers, including (without limitation) matters 19
relating to the following: 20
(i) the sharing and exchange of information between 21
distributors and retailers, including information provided 22
for the purpose of informing shared customers in relation 23
to faults and emergencies, planned or unplanned 24
interruptions and applicable tariffs; 25
(ii) the management of customer enquiries, complaints and 26
claims; 27
(iii) the management of the de-energisation of premises of 28
shared customers and the re-energisation of those 29
premises; 30
(b) disputes under or in relation to the Rules between persons, 31
including-- 32
(i) the appointment of a person, in accordance with the Rules, 33
to manage and facilitate the resolution of such disputes 34
without however derogating from that person's power to 35
act personally as an arbitrator or mediator in a particular 36
dispute; and 37
(ii) the appointment, by a person referred to in subparagraph 38
(i), of persons (including mediators and arbitrators) to 39
resolve such disputes; and 40
(iii) the procedure for the conduct of such disputes; and 41
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(iv) the provision for appeals on questions of law against 1
decisions of persons appointed to resolve such disputes; 2
and 3
(v) the conferral of functions or powers on persons authorised 4
to deal with disputes under the NEL, NER, NGL or NGR 5
or jurisdictional energy legislation; 6
(c) the payment of money (including the payment of interest) for any 7
service provided under the Rules in respect of which the Rules 8
require payment; 9
(d) confidential information held by persons or bodies conferred a 10
function, or exercising a power or right, or on whom an 11
obligation is imposed, under the Rules, and the manner and 12
circumstances in which that information may be disclosed; 13
(e) a consultation procedure for matters arising under this Law, the 14
National Regulations or the Rules; 15
(f) reviews by or on behalf of-- 16
(i) the AER or the AEMC; or 17
(ii) any other person appointed in accordance with the Rules; 18
(g) the liability of retailers, distributors and customers for acts and 19
omissions and the provision of immunity in respect of any such 20
liability; 21
(h) the energisation, de-energisation or re-energisation of premises 22
of customers; 23
(i) benchmarks for energy consumption for residential customers; 24
and 25
(j) any other matter or thing relating to the retail sale and supply of 26
energy or associated matters prescribed by the National 27
Regulations. 28
(3) Without limiting subsection (1), the Rules may-- 29
(a) be of general or limited application; and 30
(b) vary according to the persons, times, places or circumstances to 31
which they are expressed to apply; and 32
(c) confer functions or powers on, or leave any matter or thing to be 33
decided or determined by-- 34
(i) the AER, the AEMC, AEMO or a jurisdictional regulator; 35
or 36
(ii) a panel or committee established by the AEMC; or 37
(iii) any other body established, or person appointed, in 38
accordance with the Rules; and 39
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(d) confer functions on, or leave any matter or thing to be decided or 1
determined by, an energy ombudsman; and 2
(e) confer rights or impose obligations on any person or a class of 3
person, including retailers, distributors and customers, but not 4
including the AER, the AEMC, AEMO or a jurisdictional 5
regulator; and 6
(f) confer a function on the AER, the AEMC, AEMO or a 7
jurisdictional regulator to make, prepare, develop or issue 8
guidelines, tests, standards, procedures or any other document 9
(however described) in accordance with the Rules, including 10
guidelines, tests, standards, procedures or any other document 11
(however described) that leave any matter or thing to be 12
determined by the AER, the AEMC, AEMO or a jurisdictional 13
regulator; and 14
(g) empower or require any person (other than a person referred to in 15
paragraph (f)) or body to make or issue guidelines, tests, 16
standards, procedures or any other document (however 17
described) in accordance with the Rules; and 18
(h) apply, adopt or incorporate wholly or partially, or as amended by 19
the Rules, the provisions of any standard, rule, specification, 20
method or document (however described) formulated, issued, 21
prescribed or published by any person, authority or body 22
whether-- 23
(i) as formulated, issued, prescribed or published at the time 24
the Rules are made or at any time before the Rules are 25
made; or 26
(ii) as amended from time to time; and 27
(i) confer a power of direction on the AER, the AEMC, AEMO or a 28
jurisdictional regulator to require a person conferred a right or on 29
whom an obligation is imposed under the Rules to comply with-- 30
(i) a guideline, test, standard, procedure or other document 31
(however described) referred to in paragraph (f) or (g); or 32
(ii) a standard, rule, specification, method or document 33
(however described) referred to in paragraph (h); and 34
(j) if this section authorises or requires Rules that regulate any 35
matter or thing, prohibit that matter or thing or any aspect of that 36
matter or thing; and 37
(k) provide for the review of, or a right of appeal against, a decision 38
or determination made under the Rules and for that purpose, 39
confer jurisdiction on a court; and 40
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(l) require a form prescribed by or under the Rules, or information 1
or documents included in, attached to or given with the form, to 2
be verified by statutory declaration; and 3
(m) confer an immunity on, or limit the liability of, any person or 4
body performing or exercising a function or power, or conferred 5
a right, or on whom an obligation is imposed, under the Rules; 6
and 7
(n) require a person or body performing or exercising a function or 8
power, or conferred a right, or on whom an obligation is imposed, 9
under the Rules to indemnify another such person or body; and 10
(o) contain provisions of a savings or transitional nature consequent 11
on the amendment or revocation of a Rule. 12
(4) Without limitation, a Rule that amends the model terms and conditions 13
for standard retail contracts or standard connection contracts set out in 14
the Rules must specify a date by which regulated entities must vary their 15
forms of standard retail contract or their forms of standard connection 16
contract (as the case requires). 17
Division 3 Initial National Energy Retail Rules 18
238 South Australian Minister to make initial National Energy Retail Rules 19
(1) The Minister in right of the Crown of South Australia administering 20
Part 2 of the National Energy Retail Law (South Australia) Act 2011 of 21
South Australia (the South Australian Minister) may make Rules for or 22
with respect to any matter or thing referred to in Division 2. 23
(2) The South Australian Minister may make Rules that amend the Rules 24
made under subsection (1) for any purpose that is necessary or 25
consequential on the application of the Law or those Rules in a 26
participating jurisdiction. 27
(3) As soon as practicable after making Rules under this section, the South 28
Australian Minister must-- 29
(a) publish notice of the making of the Rules in the South Australian 30
Government Gazette; and 31
(b) make the Rules publicly available. 32
(4) The notice referred to in subsection (3)(a) must state-- 33
(a) the date on which the Rules commence operation; or 34
(b) if different Rules will commence operation on different dates, 35
those dates. 36
(5) The Rules made under this section may only be made on the 37
recommendation of the MCE. 38
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(6) Rules cannot be made under this section once any one of the 1
participating jurisdictions applies this Law as a law of that jurisdiction. 2
Division 4 Subsequent Rules and rule amendment procedure 3
239 Subsequent rule making by AEMC 4
The AEMC, in accordance with this Law and the National Regulations, 5
may make Rules for or with respect to any matter or thing referred to in 6
Division 2 after Rules have been made under Division 3. 7
240 Rules relating to MCE or Ministers of participating jurisdictions require 8
MCE consent 9
The AEMC must not, without the consent of the MCE, make a Rule that 10
confers a right or function, or imposes an obligation, on the MCE or a 11
Minister of a participating jurisdiction. 12
Note-- The term "function" is defined in clause 10 of Schedule 2 to the NGL to 13
include "duty". Section 8 of this Law applies that Schedule to this Law and other 14
instruments under this Law. 15
241 AEMC must not make Rules that create criminal offences or impose civil 16
penalties for breaches 17
The AEMC must not make a Rule that-- 18
(a) creates an offence for a breach of a provision of the Rules; or 19
(b) provides for a criminal penalty or civil penalty for a breach of a 20
provision of the Rules. 21
242 Documents etc applied, adopted and incorporated by Rules to be 22
publicly available 23
(1) The AEMC must make publicly available-- 24
(a) every standard, rule, specification, method or document 25
(however described) formulated, issued, prescribed or published 26
by any person, authority or body that is applied, adopted or 27
incorporated by a Rule; and 28
(b) if a standard, rule, specification, method or document (however 29
described) formulated, issued, prescribed or published by any 30
person, authority or body is applied, adopted or incorporated by 31
a Rule as amended from time to time--any amendment to that 32
standard, rule, specification, method or document. 33
(2) For the purposes of subsection (1), the AEMC makes a standard, rule, 34
specification, method or document (however described) formulated, 35
issued, prescribed or published by any person, authority or body 36
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applied, adopted or incorporated by any Rule publicly available if the 1
AEMC-- 2
(a) publishes the standard, rule, specification, method or document 3
on the AEMC's website; or 4
(b) specifies a place from which the standard, rule, specification, 5
method or document may be obtained or purchased (as the case 6
requires). 7
243 Initiation of making of a Rule 8
(1) The AEMC may make a Rule at the request of any person or the MCE. 9
(2) The AEMC must not make a Rule without a request under 10
subsection (1) unless-- 11
(a) it considers the Rule corrects a minor error in the Rules; or 12
(b) it considers the Rule involves a non-material change to the Rules; 13
or 14
(c) the Rule is in respect of any matter that is prescribed by the 15
National Regulations as a matter on which it may make a Rule on 16
its own initiative. 17
244 AEMC may make more preferable Rule in certain cases 18
(1) The AEMC may make a Rule that is different (including materially 19
different) from a market initiated proposed Rule (a more preferable 20
Rule) if the AEMC is satisfied that, having regard to the issue or issues 21
that were raised by the market initiated proposed Rule (to which the 22
more preferable Rule relates), the more preferable Rule will or is likely 23
to better contribute to the achievement of the national energy retail 24
objective. 25
(2) Section 236(2) applies in relation to the making of the more preferable 26
rule. 27
245 AEMC may make Rules that are consequential to a Rule request 28
(1) Despite section 243(2), the AEMC may, having regard to a request to 29
make a Rule under section 243(1), make a Rule under this Law, the NEL 30
or the NGL that is necessary or consequential, or corresponds, to the 31
Rule. 32
(2) For the purposes of this Part, the AEMC must treat a Rule it may make 33
under subsection (1) as if it were part of the Rule to be made on that 34
request. 35
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246 Content of requests for Rules 1
A request for the making of a Rule-- 2
(a) must contain the information prescribed by the National 3
Regulations; and 4
(b) must, subject to section 247, be accompanied by the fee 5
prescribed by the National Regulations (if any); and 6
(c) may be accompanied by a draft of the Rule to be made. 7
247 Waiver of fee for Rule requests 8
The AEMC may waive the payment of any fee prescribed by the 9
National Regulations for the purposes of section 246. 10
248 Consolidation of 2 or more Rule requests 11
(1) If the AEMC considers it necessary or desirable that 2 or more requests 12
for the making of a Rule should be dealt with together, the AEMC 13
may-- 14
(a) treat those requests as one request for the purposes of this Part (a 15
consolidated Rule request); or 16
(b) treat any later request as a submission in relation to the earliest 17
Rule request. 18
(2) For the purposes of this Part, the AEMC may treat a consolidated Rule 19
request as being received by it on the day it receives either the first or 20
last of the Rule requests forming part of the consolidated Rule request. 21
249 Initial consideration of request for Rule 22
(1) Subject to this Part, as soon as practicable after receiving a request for 23
the making of a Rule (an active request), the AEMC must consider 24
whether-- 25
(a) the active request for the Rule appears to-- 26
(i) contain the information prescribed by the National 27
Regulations; and 28
(ii) not be misconceived or lacking in substance; and 29
(b) the subject matter of the active request appears to be for or with 30
respect to a matter in respect of which the AEMC may make a 31
Rule under this Law; and 32
(c) the subject matter of the active request appears to relate to the 33
subject matter of-- 34
(i) a Rule made, or a request for the making of a Rule under 35
section 243(1) not proceeded with, in the 12 months 36
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immediately before the date of making of that Rule or that 1
request; or 2
(ii) another request for the making of a Rule under section 3
243(1) in respect of which the AEMC is taking action 4
under this Division. 5
(2) If the AEMC considers that, having regard to the matters set out in 6
subsection (1), it should not take any action under this Division in 7
respect of the active request, the AEMC must make a decision to that 8
effect and inform the person or body, in writing, that requested the Rule 9
of that decision. 10
(3) Despite subsection (1) or (2), the AEMC may make a decision to the 11
effect that it should not take any action under this Division in respect of 12
the active request if the person or body that made the active request has 13
not complied with a notice in accordance with section 250. 14
(4) In making a decision under subsection (3), the AEMC must have regard 15
to any representation it receives under section 250(4). 16
(5) A decision under subsection (2) or (3) must-- 17
(a) set out the reasons for the decision; and 18
(b) be given to the person or body that made the active request 19
without delay; and 20
(c) in the case where the decision was made only because of the 21
matters set out in subsection (1)(c)--be published. 22
(6) Subject to this Part, if the AEMC considers that, having regard to the 23
matters set out in subsection (1), it should take action under this 24
Division in respect of an active request, the AEMC must publish notice 25
of that active request in accordance with section 251. 26
250 AEMC may request further information from Rule proponent in certain 27
cases 28
(1) This section applies if the AEMC-- 29
(a) receives a request for the making of a Rule under section 243(1); 30
and 31
(b) considers, having regard to the nature and content of the request, 32
that further information is required from the person or body that 33
has made the request to assist it to understand the request's 34
purpose or content. 35
(2) The AEMC may, by notice, request the person or body that made the 36
request under section 243(1) to provide the AEMC with further 37
information. 38
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(3) A notice under subsection (2) must specify-- 1
(a) the kind of information the AEMC requires from the person or 2
body; and 3
(b) the time within which that information must be provided to the 4
AEMC. 5
(4) A person or body given a notice under this section may make a written 6
representation to the AEMC as to why it cannot provide the information 7
specified in the notice within the time specified in the notice. 8
251 Notice of proposed Rule 9
(1) This section applies if the AEMC-- 10
(a) considers that it should take action under this Division in respect 11
of a request for the making of a Rule; or 12
(b) forms an intention to make an AEMC initiated Rule. 13
(2) The AEMC must publish-- 14
(a) notice of the request or intention (as the case requires); and 15
(b) a draft of the proposed Rule; and 16
(c) any other document prescribed by the National Regulations. 17
(3) A notice published under this section must-- 18
(a) invite written submissions and comments from any person or 19
body in relation to the proposed Rule by the date specified in the 20
notice by the AEMC, being a date that is not less than 4 weeks 21
from the date the notice is published; and 22
(b) contain any other information prescribed by the National 23
Regulations. 24
(4) Nothing in this Division is to be taken as requiring the AEMC to publish 25
notices under this section in the same order as it-- 26
(a) considers that it should take action under this Division in respect 27
of a request for the making of a Rule; or 28
(b) forms an intention to make an AEMC initiated Rule. 29
252 Publication of non-controversial or urgent final Rule determination 30
(1) Subject to this section, if the AEMC considers that-- 31
(a) an AEMC initiated Rule is a non-controversial Rule; or 32
(b) a request for a Rule is a request for a non-controversial Rule; or 33
(c) a request for a Rule is a request for an urgent Rule, 34
the AEMC may make the relevant Rule in accordance with this Division 35
(except section 255 to 258) and as if the period of time within which the 36
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final Rule determination in respect of the relevant Rule must be 1
published were 6 weeks from the date of publication of the notice under 2
section 251. 3
(2) Before making a Rule as set out in subsection (1), the AEMC must 4
include in a notice under section 251 a statement to the effect that the 5
AEMC may make the relevant Rule if the AEMC does not receive a 6
written request, and reasons, not to do so from any person or body 7
within 2 weeks of publication of that notice. 8
(3) The AEMC must not make a Rule in accordance with this section if, 9
following publication of a notice under section 251 containing a 10
statement to the effect set out in subsection (2)-- 11
(a) the AEMC receives a written request not to do so; and 12
(b) the reasons set out in that request are not, in its opinion, 13
misconceived or lacking in substance. 14
(4) If the AEMC is of the opinion that the reasons given by a person or body 15
in a written request for it not to make the non-controversial Rule or 16
urgent Rule are misconceived or lacking in substance, the AEMC 17
must-- 18
(a) make a decision to that effect; and 19
(b) give the person or body its reasons, in writing, for that decision 20
without delay. 21
(5) If the AEMC is of the opinion that the reasons given by a person or body 22
in a written request for it not to make the non-controversial Rule or 23
urgent Rule, are not misconceived or lacking in substance, the AEMC 24
must publish a notice to the effect that it will make the relevant Rule in 25
accordance with this Division (other than this section). 26
253 "Fast track" Rules where previous public consultation by energy 27
regulatory body or an AEMC review 28
(1) This section applies if-- 29
(a) an energy regulatory body has-- 30
(i) made a request for the making of a Rule under section 31
243(1); and 32
(ii) consulted with the public on the nature and content of the 33
request before making that request; or 34
(b) a person or the MCE has made a request for the making of a Rule 35
under section 243(1) on the basis of-- 36
(i) a recommendation for the making of a Rule contained in a 37
MCE directed review; or 38
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(ii) a conclusion for the making of a Rule contained in an 1
AEMC Rule review. 2
(2) The AEMC may take action under this Division in respect of the request 3
without complying with section 251(2)(a) or 255 if it is of the opinion 4
that-- 5
(a) in the case where the request has been made by an energy 6
regulatory body in the circumstances described in subsection 7
(1)(a)--the consultation conducted by the energy regulatory 8
body was adequate, having regard to-- 9
(i) the nature and content of that request; and 10
(ii) the kind of consultation conducted by the energy 11
regulatory body; 12
(b) in the case where the request has been made by a person or the 13
MCE in the circumstances described in subsection (1)(b)-- 14
(i) the request reflects, or is consistent with, the relevant 15
recommendation contained in the MCE directed review or 16
relevant conclusion in the AEMC Rule review (as the case 17
requires); and 18
(ii) there was adequate consultation with the public by it on the 19
content of the relevant recommendation or relevant 20
conclusion during the MCE directed review or AEMC 21
Rule review (as the case requires). 22
(3) To avoid doubt-- 23
(a) section 249 applies to a request for the making of a Rule to which 24
this section applies; and 25
(b) section 254 does not apply to a request for the making of a Rule 26
to which this section applies. 27
254 Right to make written submissions and comments 28
Any person or body, within the period specified in a notice under 29
section 251, may make a written submission or comment in relation to 30
the proposed Rule to which the notice relates. 31
255 AEMC may hold public hearings before draft Rule determination 32
(1) The AEMC may (but need not), at any time after publication of a notice 33
under section 251 and before making a draft Rule determination, hold a 34
hearing in relation to any proposed Rule. 35
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(2) Notice of a hearing held under this section must-- 1
(a) be published; and 2
(b) contain the information prescribed by the National Regulations 3
(if any). 4
256 Draft Rule determinations 5
(1) The AEMC must make a draft Rule determination before making a final 6
Rule determination in relation to the proposed Rule. 7
(2) Subject to this Part, the AEMC must, within 10 weeks after the date 8
specified in a notice under section 251, publish-- 9
(a) the draft Rule determination; and 10
(b) notice of the making of the draft Rule determination. 11
(3) In the case of a proposed Rule to which section 253 applies, the AEMC 12
must publish the draft Rule determination and notice of the making of 13
the draft Rule determination within 5 weeks after the date notice under 14
section 251 is published. 15
(4) A draft Rule determination must contain-- 16
(a) the reasons of the AEMC as to whether or not it should make the 17
proposed Rule, including-- 18
(i) in the case where the proposed Rule is not a proposed more 19
preferable Rule, the reasons of the AEMC as to whether it 20
is satisfied the proposed Rule will or is likely to contribute 21
to the achievement of the national energy retail objective; 22
and 23
(ii) in the case of a proposed more preferable Rule, the reasons 24
of the AEMC as to whether it is satisfied the proposed 25
more preferable Rule will or is likely to better contribute to 26
the achievement of the national energy retail objective than 27
the market initiated Rule request to which the more 28
preferable Rule relates; and 29
(iii) the reasons of the AEMC having regard to any relevant 30
MCE statement of policy principles; and 31
(iv) the reasons of the AEMC having regard to any other 32
matters the AEMC considers relevant; and 33
(b) if the AEMC determines to make a Rule, a draft of the Rule to be 34
made; and 35
(c) any other matters that are prescribed by the National Regulations. 36
(5) The draft of the Rule to be made need not be the same as the draft of the 37
proposed Rule to which the notice under section 251 relates. 38
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(6) A notice referred to in subsection (2) must-- 1
(a) invite written submissions and comments from any person or 2
body in relation to the determination within a period specified by 3
the AEMC, being a period not less than 6 weeks from the date of 4
publication of the notice; and 5
(b) include a statement to the effect that any interested person or 6
body may request, in writing within one week after the 7
publication of the notice, the AEMC to hold a hearing in 8
accordance with section 258; and 9
(c) contain any other information prescribed by the National 10
Regulations. 11
257 Right to make written submissions and comments in relation to draft 12
Rule determination 13
Any person or body, within the period specified in a notice under 14
section 256(2)(b), may make a written submission or comment in 15
relation to a draft Rule determination to which the notice relates. 16
258 Pre-final Rule determination hearings 17
(1) The AEMC may (but need not), at any time after publication of a notice 18
under section 256(2)(b) and before making a final Rule determination, 19
hold a hearing in relation to a draft Rule determination. 20
(2) In addition, any person or body may request, in writing, within one 21
week after the publication of a notice under section 256(2)(b), the 22
AEMC to hold a hearing in relation to a draft Rule determination. 23
(3) Despite subsection (2), the AEMC may decide not to a hold a hearing in 24
relation to a draft Rule determination. 25
(4) Without limiting the reasons why the AEMC may decide not to hold a 26
hearing in relation to a draft Rule determination, the AEMC may decide 27
not to hold a hearing if-- 28
(a) the person or body that requests the AEMC to hold a hearing does 29
not make a written submission or comment in accordance with 30
section 257; and 31
(b) no other person or body requests the AEMC to hold a hearing. 32
(5) If the AEMC decides not to hold a hearing after a request under 33
subsection (2), it must give the person or body that requested the 34
hearing its reasons, in writing, for declining that person's or body's 35
request. 36
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(6) If the AEMC decides to hold a hearing, or agrees to hold a hearing after 1
a request under subsection (2), the AEMC must-- 2
(a) appoint a date (being not later than 3 weeks after the date of 3
publication of the notice under section 256), time and place for 4
the holding of the hearing; and 5
(b) publish a notice of that date, time and place. 6
259 Final Rule determination 7
(1) Subject to section 260, the AEMC must make a final Rule determination 8
as to whether to make a proposed Rule. 9
(2) Subject to this Part, the AEMC must, within 6 weeks after the period for 10
written submissions or comments in relation to the draft Rule 11
determination ends, publish-- 12
(a) the final Rule determination; and 13
(b) notice of the making of the final Rule determination. 14
(3) A final Rule determination must contain-- 15
(a) the reasons of the AEMC as to whether or not it should make a 16
Rule, including-- 17
(i) in the case where the Rule to be made is not a more 18
preferable Rule, the reasons of the AEMC as to whether it 19
is satisfied the Rule will or is likely to contribute to the 20
achievement of the national energy retail objective; and 21
(ii) in the case where the Rule to be made is a more preferable 22
Rule, the reasons of the AEMC as to whether it is satisfied 23
the more preferable Rule to be made will or is likely to 24
better contribute to the achievement of the national energy 25
retail objective than the market initiated Rule request to 26
which the more preferable Rule relates; and 27
(iii) the reasons of the AEMC having regard to any relevant 28
MCE statement of policy principles; and 29
(iv) the reasons of the AEMC having regard to any other 30
matters the AEMC considers relevant; and 31
(b) any other matters that are prescribed by the National Regulations. 32
(4) A notice referred to in subsection (2) must contain the information 33
prescribed by the National Regulations. 34
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260 Proposal to make more preferable Rule 1
(1) If, in view of the response to a draft Rule determination, the AEMC 2
proposes to make a more preferable Rule, the AEMC may-- 3
(a) make, and publish notice of, a draft Rule determination in respect 4
of the proposed more preferable Rule; or 5
(b) make, and publish notice of, a final Rule determination for the 6
proposed more preferable Rule. 7
(2) The final Rule determination, or further draft Rule determination, and 8
the related notice, must be published within 30 business days after the 9
end of the period for submissions or comments on the earlier draft Rule 10
determination. 11
261 Making of Rule 12
(1) Subject to this section, if the AEMC, in its final Rule determination, 13
determines to make a Rule, the AEMC must make the relevant Rule as 14
soon as practicable after the publication of the final Rule determination. 15
(2) Notice of the making of the Rule must be published in the South 16
Australian Government Gazette as soon as practicable after the making 17
of the Rule. 18
262 Operation and commencement of Rule 19
A Rule made under section 261 commences operation on the day the 20
relevant notice is published in the South Australian Government 21
Gazette or on any day after that day that is provided for in the relevant 22
notice or the Rule. 23
263 Rule that is made to be published on website and made available to the 24
public 25
On publication of a notice in accordance with section 261(2), the 26
AEMC must, without delay-- 27
(a) publish the Rule on its website; and 28
(b) make copies of the Rule available to the public at its offices. 29
264 AEMC must publish and make available up to date versions of Rules 30
The AEMC must, at all times-- 31
(a) maintain, on its website, a copy of the National Energy Retail 32
Rules, as in force from time to time; and 33
(b) make copies of the National Energy Retail Rules, as in force from 34
time to time, available to the public for inspection at its offices 35
during business hours. 36
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265 Evidence of the National Energy Retail Rules 1
A document purporting to be a copy of-- 2
(a) the National Energy Retail Rules; or 3
(b) the initial National Energy Retail Rules; or 4
(c) an amendment to the initial National Energy Retail Rules or the 5
National Energy Retail Rules, 6
endorsed with a certificate to which the seal of the AEMC has been duly 7
affixed certifying the document is such a copy, is evidence that the 8
document is such a copy. 9
Division 5 Miscellaneous provisions relating to Rule making 10
by the AEMC 11
266 Extensions of periods of time in Rule making procedure 12
(1) Despite anything to the contrary in this Part and without limiting 13
section 267, the AEMC may, by notice, extend a period of time 14
specified in Division 4 if the AEMC considers that a request for a Rule 15
raises issues of sufficient complexity or difficulty or there is a material 16
change in circumstances such that it is necessary that the relevant period 17
of time specified in Division 4 be extended. 18
(2) A notice under subsection (1) must-- 19
(a) be published; and 20
(b) set out the period of time specified in Division 4 to be extended; 21
and 22
(c) specify a new period of time to apply in the place of the period of 23
time specified in Division 4. 24
(3) A notice under subsection (1) may be published at the same time as a 25
notice under section 251. 26
(4) The AEMC may only extend a period of time under this section before 27
the expiry of that time. 28
267 AEMC may extend period of time for making of final Rule determination 29
for further consultation 30
(1) This section applies if-- 31
(a) a person or body raises an issue in-- 32
(i) a submission or comment in relation to a draft Rule 33
determination; or 34
(ii) a hearing held under section 255 or 258; and 35
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(b) the AEMC considers the issue raised by the person or body 1
requires further public consultation in relation to the proposed 2
Rule or draft Rule determination. 3
(2) Despite anything to the contrary in this Part and without limiting 4
section 266, the AEMC may, by notice, extend the period of time 5
specified in section 259 within which it must make a final Rule 6
determination. 7
(3) A notice under subsection (2) must-- 8
(a) be published; and 9
(b) specify a new period of time to apply in the place of the period of 10
time specified in section 259; and 11
(c) specify the issue on which the AEMC requires further public 12
submissions and comments; and 13
(d) invite written submissions and comments from any person or 14
body by the date specified in the notice. 15
(4) The new period of time must not have the effect of extending the 16
relevant period of time specified in section 259 by more than 4 weeks. 17
(5) The AEMC may only extend the period of time under this section before 18
the expiry of the time specified in section 259. 19
(6) Any person or body, within the period specified in a notice under 20
subsection (2), may make a written submission or comment in relation 21
to the issue specified in the notice. 22
268 AEMC may publish written submissions and comments unless 23
confidential 24
(1) Subject to this section, the AEMC may publish any information in any 25
written submission or comment given to it under this Part unless-- 26
(a) the person or body who gave the information, claims, when 27
giving it to the AEMC, that it contains confidential information; 28
and 29
(b) the AEMC decides that the written submission or comment 30
contains confidential information. 31
(2) A written submission or comment given to the AEMC under this Part 32
that has been claimed under this section to contain confidential 33
information, and that the AEMC has decided contains confidential 34
information, may be published if that information is omitted. 35
(3) If information is omitted from a published written submission or 36
comment given to the AEMC under this Part as being confidential 37
information, a note to that effect must be included in the submission or 38
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comment at the place in the submission or comment from which the 1
information is omitted. 2
Note-- See also section 223 of this Law and section 24 of the Australian Energy 3
Market Commission Establishment Act 2004 of South Australia. 4
269 AEMC must publicly report on Rules not made within 12 months of 5
public notification of requests 6
(1) This section applies if the AEMC-- 7
(a) publishes a notice under section 251 in respect of a request for the 8
making of a Rule; but 9
(b) does not make a final Rule determination in respect of that 10
request within 12 months after the publication of that notice (the 11
report trigger date). 12
(2) The AEMC must prepare a report on the request as soon as practicable 13
after the report trigger date. 14
(3) A report prepared under this section must-- 15
(a) contain the reasons why the final Rule determination has not been 16
made within 12 months after the publication of the notice under 17
section 251; and 18
(b) specify when the AEMC considers it will make the final Rule 19
determination; and 20
(c) be published. 21
Part 11 National Energy Retail Regulations 22
270 General regulation-making power for this Law 23
(1) For the purposes of this section, the designated authority is the 24
Governor of the State of South Australia, or other officer for the time 25
being administering the Government of that State, with the advice and 26
consent of the Executive Council of that State and on the unanimous 27
recommendation of the Ministers of the participating jurisdictions. 28
(2) The designated authority may make Regulations (referred to as the 29
"National Regulations") for the purposes of this Law. 30
(3) Without limiting subsection (2), the National Regulations may make 31
provision for or with respect to any matter in respect of which a 32
provision of this Law contemplates that National Regulations may be 33
made. 34
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(4) Without limiting subsection (2), the National Regulations may 1
prescribe fees in respect of any matter under this Law, and provide for 2
the waiver or refund of such fees. 3
Note-- The AER may charge fees for services it provides under section 44AAI 4
of the Competition and Consumer Act 2010 of the Commonwealth. 5
(5) Without limiting subsection (2), the National Regulations may make 6
provision for or with respect to electricity consumption benchmarks 7
other than those prepared by the AER under the Rules. 8
(6) The National Regulations may-- 9
(a) be of general or limited application; and 10
(b) vary according to the persons, times, places or circumstances to 11
which they are expressed to apply; and 12
(c) in relation to fees, prescribe differential fees or provide for fees 13
to be determined according to prescribed factors; and 14
(d) apply, adopt or incorporate any publication as in force from time 15
to time. 16
271 Specific regulation-making power 17
(1) Without limiting the generality of section 270, the National Regulations 18
may deal with matters of a transitional nature relating to the transition 19
from the application of provisions of the energy laws to the application 20
of provisions of this Law and the Rules. 21
(2) Any provision of the National Regulations that deals with a matter of a 22
transitional nature under subsection (1) may be expressed to take effect 23
from a time that is earlier than the beginning of the day on which the 24
Regulations containing the provision are made, not being a time earlier 25
than the commencement of this subsection. 26
(3) If a provision of a National Regulation is expressed to take effect from 27
a time that is earlier than the beginning of the day on which the 28
Regulations containing the provision are made, the provision must also 29
provide that the provision does not operate so as-- 30
(a) to prejudicially affect the rights of a person (other than the rights 31
of a Minister of a participating jurisdiction or an entity involved 32
in the administration of the jurisdictional energy legislation or the 33
National Energy Retail Law) existing before the date of making 34
of those Regulations; or 35
(b) to impose liabilities on any person (other than liabilities imposed 36
on a Minister of a participating jurisdiction or an entity involved 37
in the administration of the jurisdictional energy legislation or the 38
National Energy Retail Law) in respect of anything done or 39
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omitted to be done before the date of making of those 1
Regulations. 2
(4) In this section-- 3
matters of a transitional nature includes matters of an application or 4
savings nature; 5
National Energy Retail Law means this Law as in force from time to 6
time after the commencement of this section, or the Rules as in force 7
from time to time after the commencement of this section. 8
Part 12 Compliance and performance 9
Division 1 AER compliance regime 10
272 Obligation of AER to monitor compliance 11
The AER must monitor compliance of regulated entities and other 12
persons with the requirements of this Law, the National Regulations and 13
the Rules applicable to them. 14
273 Obligation of regulated entities to establish arrangements to monitor 15
compliance 16
(1) A regulated entity must establish policies, systems and procedures to 17
enable it to efficiently and effectively monitor its compliance with the 18
requirements of this Law, the National Regulations and the Rules. 19
(2) The policies, systems and procedures must be established and observed 20
in accordance with the relevant provisions of the AER Compliance 21
Procedures and Guidelines. 22
274 Obligation of regulated entities to provide information and data about 23
compliance 24
(1) A regulated entity must submit to the AER, in the manner and form 25
(including by the date or dates) required by the AER Compliance 26
Procedures and Guidelines, information and data relating to the 27
compliance of the entity with the requirements of this Law, the National 28
Regulations and the Rules. 29
Note-- This subsection is a civil penalty provision. 30
(2) The AER may use any information or data provided by a regulated 31
entity under this section for the purposes of any of the functions and 32
powers of the AER under-- 33
(a) section 204 of this Law; or 34
(b) section 15 of the NEL; or 35
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(c) section 27 of the NGL. 1
Note-- The AER is subject to Division 3 of Part 8 of this Law and section 44AAF 2
of the Competition and Consumer Act 2010 of the Commonwealth in respect of 3
the disclosure of confidential information it receives. 4
275 Compliance audits by AER 5
(1) The AER may-- 6
(a) carry out compliance audits; or 7
(b) arrange for the carrying out by contractors or other persons of 8
compliance audits on behalf of the AER, 9
of any or all activities of a regulated entity for the purpose of assessing 10
the entity's compliance with the requirements of this Law, the National 11
Regulations and the Rules. 12
(2) Without limitation, compliance audits may be carried out by or on 13
behalf of the AER in respect of-- 14
(a) the compliance by retailers with their obligations under 15
Division 6 of Part 2 and the Rules in relation to hardship 16
customers; and 17
(b) the implementation by retailers of their customer hardship 18
policies. 19
276 Compliance audits by regulated entities 20
(1) A regulated entity must, if so required by the AER, carry out a 21
compliance audit in connection with specified aspects of the activities 22
of the entity in relation to the entity's compliance with the requirements 23
of this Law, the National Regulations and the Rules. 24
(2) Without limitation, a retailer must, if so required by the AER, carry out 25
a compliance audit in respect of the compliance by the retailer and 26
associates of the retailer with their obligations under the Rules relating 27
to marketing. 28
(3) If the AER requires a regulated entity to carry out a compliance audit 29
under this section, the entity may arrange for the audit to be carried out 30
on its behalf by contractors or other persons, but the entity remains 31
responsible for the audit. 32
(4) A regulated entity must, within a period specified by the AER, provide 33
the AER with the results of a compliance audit carried out under this 34
section. 35
Note-- Subsections (1), (2) and (4) are civil penalty provisions. 36
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277 Carrying out of compliance audits 1
A compliance audit is to be carried out in accordance with the AER 2
Compliance Procedures and Guidelines. 3
278 Cost of compliance audits 4
(1) The cost of conducting a compliance audit under section 275 is to be an 5
amount determined in accordance with the AER Compliance 6
Procedures and Guidelines and is recoverable by the AER from the 7
regulated entity concerned. 8
(2) The cost of conducting a compliance audit under section 276 is to be 9
borne by the regulated entity concerned. 10
279 Compliance reports 11
(1) The AER must, as soon as practicable after 30 June (but on or before 12
30 November) in each year publish a report (a compliance report) on 13
the matters referred to in section 280 in respect of the period of 14
12 months ending with 30 June in that year. 15
(2) The AER must publish each compliance report on its website. 16
280 Contents of compliance reports 17
A compliance report must, in accordance with the AER Compliance 18
Procedures and Guidelines, include the following (in relation to the 19
period to which the report relates): 20
(a) a report in relation to the AER's monitoring activities under this 21
Law; 22
(b) a report on the extent to which regulated entities have complied, 23
or failed to comply, with their obligations under this Law, the 24
National Regulations and the Rules; 25
(c) without limiting paragraph (b), a report on the compliance by 26
retailers and associates of retailers with their obligations under 27
the Rules relating to energy marketing activities; 28
(d) a report on any additional matters that the AER considers 29
appropriate for inclusion. 30
281 AER Compliance Procedures and Guidelines 31
(1) The AER must make procedures and guidelines (AER Compliance 32
Procedures and Guidelines) in accordance with the retail consultation 33
procedure. 34
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(2) Without limitation, the AER Compliance Procedures and Guidelines 1
may provide guidance for regulated entities about the following: 2
(a) compliance with the requirements of this Law, the National 3
Regulations and the Rules; 4
(b) the carrying out of compliance audits, and the costs payable by 5
regulated entities, under this Division; 6
(c) the receiving and recording by regulated entities of explicit 7
informed consent given by small customers; 8
(d) the AER's acceptance of enforceable undertakings under 9
section 288; 10
(e) the provision of information by distributors for the purpose of 11
benchmarks for energy consumption for residential customers in 12
accordance with the Rules; 13
(f) any additional matters that the AER intends to include in its 14
compliance reports. 15
(3) The AER Compliance Procedures and Guidelines must provide for the 16
manner and form in which regulated entities must submit information 17
and data to the AER under section 274, including the date or dates each 18
year by which that information and data must be submitted to the AER. 19
(4) The AER Compliance Procedures and Guidelines may include a 20
statement of the AER's compliance priorities. 21
(5) The AER may amend the AER Compliance Procedures and Guidelines 22
in accordance with the retail consultation procedure. 23
(6) The AER Compliance Procedures and Guidelines may form part of 24
similar guidelines under this Law or the NEL or the NGL. 25
Division 2 AER performance regime 26
282 Obligation of regulated entities to provide information and data about 27
performance 28
(1) A regulated entity must submit to the AER, in the manner and form 29
(including by the date or dates) required by the AER Performance 30
Reporting Procedures and Guidelines, information and data relating 31
to-- 32
(a) the performance of the entity against the hardship program 33
indicators and distributor service standards; and 34
(b) the activities of the entity in relation to any other matters that are 35
required by the Rules to be included in a retail market 36
performance report. 37
Note-- This subsection is a civil penalty provision. 38
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(2) The AER may use any information or data provided by a regulated 1
entity under this section for the preparation of-- 2
(a) one or more retail market performance reports; or 3
(b) one or more reports under the NEL or NGL, 4
or both. 5
Note-- The AER is subject to Division 3 of Part 8 of this Law and section 44AAF 6
of the Competition and Consumer Act 2010 of the Commonwealth in respect of 7
the disclosure of confidential information it receives. 8
283 Performance audits--hardship 9
The AER may conduct performance audits in respect of the 10
performance of retailers by reference to hardship program indicators 11
established by the AER and notified to retailers. 12
284 Retail market performance reports 13
(1) The AER must, as soon as practicable after 30 June (but on or before 14
30 November) in each year publish a report (a retail market 15
performance report) on the matters referred to in section 285 in respect 16
of the period of 12 months ending with 30 June in that year. 17
(2) The AER must publish each retail market performance report on its 18
website. 19
285 Contents of retail market performance reports 20
A retail market performance report must, in accordance with the Rules 21
and the AER Performance Reporting Procedures and Guidelines, 22
include the following (in relation to the period to which the report 23
relates): 24
(a) a retail market overview; 25
(b) a retail market activities report; 26
(c) a report on the performance of retailers by reference to the 27
hardship program indicators; 28
(d) a report on the performance of distributors by reference to 29
distributor service standards and associated GSL schemes; 30
(e) a report on the performance of distributors in relation to the small 31
compensation claims regime under Part 7; 32
(f) a report on any additional matters that the AER considers 33
appropriate for inclusion. 34
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286 AER Performance Reporting Procedures and Guidelines 1
(1) The AER must make procedures and guidelines (AER Performance 2
Reporting Procedures and Guidelines) in accordance with the retail 3
consultation procedure. 4
(2) Without limitation, the AER Performance Reporting Procedures and 5
Guidelines may provide guidance for regulated entities about the 6
following: 7
(a) measuring their performance against the hardship program 8
indicators; 9
(b) any additional matters that the AER intends to include in its retail 10
market performance reports. 11
(3) The AER Performance Reporting Procedures and Guidelines must 12
provide for the manner and form in which regulated entities must 13
submit information and data to the AER under section 282, including 14
the date or dates each year by which that information and data must be 15
submitted to the AER. 16
(4) The AER may amend the AER Performance Reporting Procedures and 17
Guidelines in accordance with the retail consultation procedure. 18
(5) The AER Performance Reporting Procedures and Guidelines may form 19
part of similar guidelines under this Law or the NEL or the NGL. 20
287 Hardship program indicators 21
(1) The AER must determine and publish hardship program indicators in 22
accordance with the Rules. 23
(2) The Rules may make provision for or with respect to the content and 24
development of, consultation about, and determination and amendment 25
and publication of hardship program indicators. 26
Part 13 Enforcement 27
Division 1 Enforceable undertakings 28
288 Enforceable undertakings 29
(1) The AER may accept a written undertaking given by a person for the 30
purposes of this section in connection with a matter in relation to which 31
the AER has a function or power under this Law or the Rules. 32
(2) A person may withdraw or vary the undertaking at any time, but only 33
with the consent of the AER. 34
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(3) If the AER considers that the person who gave the undertaking has 1
breached any of its terms, the AER may apply to the Court for an order 2
under subsection (4). 3
(4) If the Court is satisfied that the person has breached a term of the 4
undertaking, the Court may make any or all of the following orders: 5
(a) an order directing the person to comply with that term of the 6
undertaking; 7
(b) an order directing the person to pay to the Commonwealth an 8
amount up to the amount of any financial benefit that the person 9
has obtained directly or indirectly and that is reasonably 10
attributable to the breach; 11
(c) any order that the Court considers appropriate directing the 12
person to compensate any other person who has suffered loss or 13
damage as a result of the breach; 14
(d) any other order that the Court considers appropriate. 15
Division 2 Proceedings generally 16
289 Instituting civil proceedings under this Law 17
(1) Proceedings may not be instituted in a court in respect of a breach of a 18
provision of this Law, the National Regulations or the Rules that is not 19
an offence provision by any person except as provided for in this Part. 20
(2) The AER may, in accordance with Division 3, institute civil 21
proceedings in respect of a breach of-- 22
(a) a provision of this Law that is not an offence provision (including 23
a provision that is a civil penalty provision or conduct provision); 24
or 25
(b) a provision of the National Regulations that is not an offence 26
provision (including a provision that is a civil penalty provision 27
or conduct provision); or 28
(c) a provision of the Rules (including a provision that is a civil 29
penalty provision or a conduct provision). 30
(3) A person other than the AER may, in accordance with Division 3, 31
institute civil proceedings in respect of a breach of a conduct provision. 32
290 Time limit within which proceedings may be instituted 33
(1) The AER may only institute a proceeding for a breach, by a person, of 34
a provision of this Law, the National Regulations or the Rules that is not 35
an offence provision within 6 years after the date on which the breach 36
occurred. 37
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(2) A person, other than the AER, may only institute a proceeding for a 1
breach of a conduct provision by another person within 6 years after the 2
date on which the breach occurred. 3
Division 3 Proceedings for breaches of this Law, the National 4
Regulations or the Rules 5
291 AER proceedings for breaches of this Law, the National Regulations or 6
the Rules that are not offences 7
(1) The Court may make an order, on application by the AER on behalf of 8
the Commonwealth, declaring that a person is in breach of a provision 9
of this Law, the National Regulations or the Rules that is not an offence 10
provision. 11
Note-- A Supreme Court of a participating jurisdiction that is a State may hear 12
an application by the AER under subsection (1) by operation of section 39(2) of 13
the Judiciary Act 1903 of the Commonwealth. 14
(2) If the order declares a person to be in breach of a provision of this Law, 15
the National Regulations or the Rules that is not an offence provision, 16
the order may include one or more of the following: 17
(a) an order that the person pay a civil penalty determined in 18
accordance with this Law, the National Regulations or the Rules 19
if the breach is a breach of a civil penalty provision; 20
(b) an order that the person cease, within a specified period, the act, 21
activity or practice constituting the breach; 22
(c) an order that the person take such action, or adopt such practice, 23
as the Court requires for remedying the breach or preventing a 24
recurrence of the breach; 25
(d) an order that the person implement a specified program for 26
compliance with this Law, the National Regulations or the Rules; 27
(e) an order of a kind prescribed by the National Regulations. 28
(3) If a person has engaged, is engaging or is proposing to engage in any 29
conduct in breach of a provision of this Law, the National Regulations 30
or the Rules that is not an offence provision, the Court may, on 31
application by the AER on behalf of the Commonwealth, grant an 32
injunction-- 33
(a) restraining the person from engaging in the conduct; and 34
(b) if, in the Court's opinion, it is desirable to do so--requiring the 35
person to do something. 36
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(4) The power of the Court under subsection (3) to grant an injunction 1
restraining a person from engaging in conduct of a particular kind may 2
be exercised-- 3
(a) if the Court is satisfied that the person has engaged in conduct of 4
that kind--whether or not it appears to the Court that the person 5
intends to engage again, or to continue to engage, in conduct of 6
that kind; or 7
(b) if it appears to the Court that, if an injunction is not granted, it is 8
likely that the person will engage in conduct of that kind-- 9
whether or not the person has previously engaged in conduct of 10
that kind and whether or not there is an imminent danger of 11
substantial damage to any person if the person engages in 12
conduct of that kind. 13
292 Proceedings for declaration that a person is in breach of a conduct 14
provision 15
(1) The Court may make an order, on application by a person other than the 16
AER, declaring that another person is in breach of a conduct provision. 17
(2) If the order declares a person to be in breach of a conduct provision, the 18
order may include one or more of the following: 19
(a) an order that the person in breach cease, within a specified period, 20
the act, activity or practice constituting the breach; 21
(b) an order that the person in breach take such action, or adopt such 22
practice, as the Court requires for remedying the breach or 23
preventing a recurrence of the breach; 24
(c) an order that the person in breach implement a specified program 25
for compliance with this Law, the National Regulations and the 26
Rules; 27
(d) an order of a kind prescribed by the National Regulations. 28
(3) If a person has engaged, is engaging or is proposing to engage in any 29
conduct in breach of a conduct provision, the Court may, on application 30
by another person (other than the AER), grant an injunction-- 31
(a) restraining the first mentioned person from engaging in the 32
conduct; and 33
(b) if, in the Court's opinion, it is desirable to do so--requiring the 34
first mentioned person to do something. 35
(4) The power of the Court under subsection (3) to grant an injunction 36
restraining a person from engaging in conduct of a particular kind may 37
be exercised-- 38
(a) if the Court is satisfied that the person has engaged in conduct of 39
that kind--whether or not it appears to the Court that the person 40
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intends to engage again, or to continue to engage, in conduct of 1
that kind; or 2
(b) if it appears to the Court that, if an injunction is not granted, it is 3
likely that the person will engage in conduct of that kind-- 4
whether or not the person has previously engaged in conduct of 5
that kind and whether or not there is an imminent danger of 6
substantial damage to any person if the person engages in 7
conduct of that kind. 8
293 Actions for damages by persons for breach of conduct provision 9
A person other than the AER who suffers loss or damage by conduct of 10
another person that was done in breach of a conduct provision may 11
recover the amount of the loss or damage by action against that other 12
person in a court of competent jurisdiction. 13
Division 4 Matters relating to breaches of this Law, the 14
National Regulations or the Rules 15
294 Matters for which there must be regard in determining amount of civil 16
penalty 17
Every civil penalty ordered to be paid by a person declared to be in 18
breach of a provision of this Law, the National Regulations or the Rules 19
must be determined having regard to all relevant matters, including-- 20
(a) the nature and extent of the breach; and 21
(b) the nature and extent of any loss or damage suffered as a result of 22
the breach; and 23
(c) the circumstances in which the breach took place; and 24
(d) whether the person has engaged in any similar conduct and been 25
found to be in breach of a provision of this Law, the National 26
Regulations or the Rules in respect of that conduct; and 27
(e) in the case of a regulated entity--whether the person has 28
established, and has complied with, policies, systems and 29
procedures under section 273. 30
295 Breach of a civil penalty provision is not an offence 31
A breach of a civil penalty provision is not an offence. 32
296 Breaches of civil penalty provisions involving continuing failure 33
For the purpose of determining the civil penalty for a breach of a civil 34
penalty provision, if the breach consists of a failure to do something that 35
is required to be done, the breach is to be regarded as continuing until 36
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the act is done despite the fact that any period within which, or time 1
before which, the act is required to be done has expired or passed. 2
297 Conduct in breach of more than one civil penalty provision 3
(1) If the conduct of a person constitutes a breach of 2 or more civil penalty 4
provisions, proceedings may be instituted under this Law against the 5
person in relation to the breach of any one or more of those provisions. 6
(2) However, the person is not liable to more than one civil penalty under 7
this Law in respect of the same conduct. 8
298 Persons involved in breach of civil penalty provision or conduct 9
provision 10
(1) A person must not-- 11
(a) aid, abet, counsel or procure a breach of a civil penalty provision 12
or conduct provision by another person; or 13
(b) be in any way directly or indirectly knowingly concerned in, or a 14
party to, a breach of a civil penalty provision or conduct 15
provision by another person. 16
(2) This Law applies to a person who breaches subsection (1) in relation to 17
a civil penalty provision or conduct provision as if the person were a 18
person who has breached the civil penalty provision or conduct 19
provision. 20
(3) A civil penalty provision or conduct provision that does not itself 21
directly impose an obligation on any person but that is associated with 22
another provision that directly imposes an obligation on a person is 23
taken to impose an obligation on that person. 24
(4) A civil penalty provision or conduct provision that provides that a 25
person-- 26
(a) may do something only in certain circumstances (however 27
expressed) is taken to impose an obligation on the person not to 28
do the thing except in those circumstances; or 29
(b) may not do something in certain circumstances (however 30
expressed) is taken to impose an obligation on the person not to 31
do the thing in those circumstances. 32
(5) Subsections (3) and (4) do not of themselves create offences and do not 33
apply to provisions, or in circumstances, prescribed by the National 34
Regulations. 35
299 Attempt to breach a civil penalty provision 36
A person who attempts to commit a breach of a civil penalty provision 37
commits a breach of that provision. 38
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300 Civil penalties payable to the Commonwealth 1
If a person is ordered to pay a civil penalty, the penalty is payable to the 2
Commonwealth. 3
Division 5 Judicial review of decisions under this Law, the 4
National Regulations and the Rules 5
301 Definition 6
In this Division-- 7
person aggrieved includes a person whose interests are adversely 8
affected. 9
302 Applications for judicial review of decisions of the AEMC 10
(1) A person aggrieved by-- 11
(a) a decision or determination of the AEMC under this Law, the 12
National Regulations or the Rules; or 13
(b) a failure by the AEMC to make a decision or determination under 14
this Law, the National Regulations or the Rules; or 15
(c) conduct engaged in, or proposed to be engaged in, by the AEMC 16
for the purpose of making a decision or determination under this 17
Law, the National Regulations or the Rules, 18
may apply to the Court for judicial review of the decision or 19
determination, failure or conduct or proposed conduct. 20
Note-- The AER is subject to judicial review under the Administrative Decisions 21
(Judicial Review) Act 1977 of the Commonwealth. 22
(2) Unless the Court otherwise orders, the making of an application to the 23
Court under subsection (1) does not affect the operation of the decision 24
or determination referred to in that subsection or prevent the taking of 25
action to implement the decision or determination. 26
Division 6 Further provision for corporate liability for 27
breaches of this Law 28
303 Definition 29
In this Division-- 30
breach provision means an offence provision, a civil penalty provision 31
or a conduct provision. 32
304 Offences and breaches by corporations 33
(1) If a corporation contravenes a breach provision, each officer of the 34
corporation is to be taken to have contravened the breach provision if 35
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the officer knowingly authorised or permitted the contravention or 1
breach. 2
(2) An officer of a corporation may be proceeded against under a breach 3
provision pursuant to this section whether or not the corporation has 4
been proceeded against under the provision. 5
(3) Nothing in this section affects the liability of a corporation for a 6
contravention of a breach provision. 7
305 Corporations also in breach if officers and employees are in breach 8
If an officer or employee of a corporation commits an act in their 9
capacity as officer or employee of the corporation that would, if that act 10
were committed by the corporation, constitute a breach of a provision 11
of this Law, the National Regulations or the Rules, the corporation is to 12
be taken to have contravened that provision. 13
Division 7 Application of provisions of NGL 14
306 Tribunal review of information disclosure decision 15
(1) This section applies to a decision to disclose information made by the 16
AER under section 214. 17
(2) The provisions of Division 3 of Part 5 of Chapter 8 of the NGL apply to 18
a decision referred to in subsection (1) in the same way as they apply to 19
an information disclosure decision as defined in that Part. 20
(3) For that purpose-- 21
(a) (without limiting subsection (2)) a reference in that Division to 22
the NGL (however expressed) is taken to be a reference to this 23
Law; and 24
(b) references in that Division to AEMO are taken to be omitted; and 25
(c) the reference in section 263 of the NGL to "section 91GH or 26
section 329 (as the case requires)" is taken to be a reference to 27
section 214 of this Law; and 28
(d) that Division applies with any other modifications prescribed by 29
the National Regulations. 30
307 Costs in a review 31
(1) This section applies to a review under the provisions applied by 32
section 306. 33
(2) Subject to this section, the Australian Competition Tribunal may order 34
that a party to a review to which this section applies pay all or a 35
specified part of the costs of another party to the review. 36
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(3) The Tribunal must not make an order requiring the AER to pay the costs 1
of another party to the review unless the Tribunal considers that the 2
AER has conducted its case in the review without due regard to-- 3
(a) the costs that would have to be incurred by another party to the 4
review as a result of that conduct; or 5
(b) the time required by-- 6
(i) the Tribunal to hear the review as a result of that conduct; 7
or 8
(ii) another party to prepare their case as a result of that 9
conduct; or 10
(c) the submissions or arguments made to the Tribunal by another 11
party. 12
308 Infringement notices 13
(1) This section applies in relation to civil penalty provisions within the 14
meaning of this Law. 15
(2) The provisions of Part 7 of Chapter 8 of the NGL apply in relation to 16
civil penalty provisions referred to in subsection (1) in the same way as 17
they apply in relation to civil penalty provisions within the meaning of 18
the NGL. 19
(3) For that purpose-- 20
(a) a reference in those provisions to the "Regulations" is taken to be 21
a reference to the National Regulations within the meaning of this 22
Law; and 23
(b) those provisions apply with any modifications prescribed by the 24
National Regulations. 25
309 Search warrants 26
The provisions of Division 2 of Part 1 of Chapter 2 of the NGL apply, 27
with such modifications as are prescribed by the National Regulations, 28
in relation to the provisions of this Law, the National Regulations and 29
the Rules in the same way as they apply in relation to a relevant 30
provision within the meaning of section 31 of the NGL. 31
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Part 14 Evidentiary matters 1
Division 1 Publication on websites 2
310 Definitions 3
In this Division-- 4
decision maker means the Minister of a participating jurisdiction, the 5
AER or the AEMC; 6
relevant decision or document means a decision (however described) 7
or determination (however described) of a decision maker under this 8
Law or the Rules; 9
relevant notice means a notice under the Rules calling for or inviting 10
submissions or comments in relation to a relevant decision or document. 11
311 Publication of decisions on websites 12
(1) For the purposes of this Law, a relevant decision or document or 13
relevant notice that is required by this Law or the Rules to be published 14
on a website is to be taken to be published on the website if-- 15
(a) the relevant decision or document or relevant notice is made 16
accessible in full on the website; or 17
(b) notice of the making or publication of the relevant decision or 18
document or relevant notice is made accessible on that website 19
and the relevant decision or document or relevant notice is made 20
accessible separately in full on that website or in any other 21
identified location. 22
(2) The date on which the relevant decision or document or relevant notice 23
is published on the website is the date notified by the relevant decision 24
maker on the website as the date of publication of the relevant decision 25
or document or relevant notice (being not earlier than the date on which 26
it was first made so accessible). 27
Division 2 Evidentiary certificates 28
312 Definitions 29
In this Division-- 30
acting SES employee has the same meaning as in section 17AA of the 31
Acts Interpretation Act 1901 of the Commonwealth; 32
AEMC chief executive means the chief executive of the AEMC 33
appointed under section 16 of the Australian Energy Market 34
Commission Establishment Act 2004 of South Australia; 35
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AEMC Commissioner means a Commissioner within the meaning of 1
the Australian Energy Market Commission Establishment Act 2004 of 2
South Australia; 3
AER member has the same meaning as in the Competition and 4
Consumer Act 2010 of the Commonwealth; 5
relevant notice has the same meaning as in section 310; 6
SES employee has the same meaning as in section 17AA of the Acts 7
Interpretation Act 1901 of the Commonwealth. 8
313 Evidentiary certificates--AER 9
In any proceedings under this Law, a certificate signed or purported to 10
be signed by an AER member, or an SES employee or acting SES 11
employee assisting the AER as mentioned in section 44AAC of the 12
Competition and Consumer Act 2010 of the Commonwealth, stating any 13
of the following matters is evidence of the matter: 14
(a) a stated document is one of the following things, made, given, 15
served or issued under this Law or the Rules: 16
(i) a decision (however described) or determination (however 17
described); 18
(ii) a retailer authorisation; 19
(iii) a notice, notification, direction, order or requirement; 20
(b) a stated document is a copy of a thing referred to in paragraph (a); 21
(c) on a stated day, a person was or was not-- 22
(i) given a decision (however described), or determination 23
(however described); 24
(ii) the holder of a current retailer authorisation; 25
(iii) an exempt seller; 26
(iv) authorised as an authorised person within the meaning of 27
the provisions applied by section 309); 28
(v) served a notice under section 206; 29
(d) on a stated day any of the following were published on the AER's 30
website: 31
(i) a decision (however described) or determination (however 32
described); 33
(ii) a relevant notice. 34
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314 Evidentiary certificates--AEMC 1
In any proceedings under this Law, a certificate signed or purported to 2
be signed by an AEMC Commissioner or the AEMC chief executive, 3
stating any of the following matters is evidence of the matter: 4
(a) a stated document is a decision (however described), made, 5
given, served or issued under this Law; 6
(b) a stated document is a copy of a thing referred to in paragraph (a); 7
(c) on a stated day, a person was or was not given a decision 8
(however described); 9
(d) on a stated day a notice was published on the AEMC's website. 10
Division 3 Time of commencement of a Rule 11
315 Time of commencement of a Rule 12
If a notice published in the South Australian Government Gazette under 13
section 238 or 262 provides that a Rule commences on a particular day, 14
the Rule commences at the beginning of that day. 15
Part 15 General 16
316 Immunity in relation to failure to supply energy 17
(1) A retailer or distributor, or an officer or employee of a retailer or 18
distributor, does not incur any civil monetary liability for any partial or 19
total failure to supply energy unless the failure is due to an act or 20
omission done or made by the retailer or distributor or the officer or 21
employee of the retailer or distributor, in bad faith or through 22
negligence. 23
(2) A retailer or distributor may enter into an agreement with a person 24
(other than a small customer) varying or excluding the operation of 25
subsection (1) and, to the extent of that agreement, that subsection does 26
not apply. 27
(3) This section does not apply-- 28
(a) to a distributor that is an electricity distribution network service 29
provider or an officer or employee of such a distributor in relation 30
to an act or omission in the performance or exercise, or purported 31
performance or exercise, of a system operations function or 32
power; or 33
(b) to any liability of an officer or employee of a body corporate to 34
the body corporate. 35
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(4) In this section-- 1
electricity distribution network service provider means a regulated 2
distribution network service provider within the meaning of the NEL; 3
partial or total failure to supply energy includes a defective supply of 4
energy; 5
system operations function or power has the same meaning as in 6
section 119 of the NEL. 7
317 Distributor--retailer mutual indemnity 8
(1) Subject to section 316 and any applicable laws, if a shared customer 9
seeks to recover any loss or damage by action against a retailer in a court 10
of competent jurisdiction, the distributor-- 11
(a) indemnifies the retailer to the extent that the damage suffered by 12
the customer arises from the act or omission of the distributor; but 13
(b) does so only to the extent that the act or omission arises from the 14
negligence or breach of statutory duty of the distributor, its 15
servants or agents or involves bad faith on the part of the 16
distributor or its servants or agents. 17
(2) Subject to section 316 and any applicable laws, if a shared customer 18
seeks to recover any loss or damage by action against a distributor in a 19
court of competent jurisdiction, the retailer-- 20
(a) indemnifies the distributor to the extent that the damage suffered 21
by the customer arises from the act or omission of the retailer; but 22
(b) does so only to the extent that the act or omission arises from the 23
negligence or breach of statutory duty of the retailer, its servants 24
or agents or involves bad faith on the part of the retailer or its 25
servants or agents. 26
318 Immunity in relation to personal liability of AEMC officials 27
(1) No personal liability attaches to an AEMC official for an act or 28
omission in good faith in the performance or exercise, or purported 29
performance or exercise of a function or power under this Law, the 30
National Regulations or the Rules. 31
(2) A liability that would, but for subsection (1), lie against an AEMC 32
official lies instead against the AEMC. 33
(3) In this section-- 34
AEMC official means-- 35
(a) a member of the AEMC; 36
(b) the chief executive of the AEMC; 37
(c) a member of staff appointed by the AEMC. 38
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319 Giving of notices and other documents under Law or Rules 1
(1) If this Law or the Rules require or permit a notice or other document to 2
be served on a person (whether the expression "deliver", "give", 3
"notify" or "send" or another expression is used), the notice or other 4
document may be served-- 5
(a) on a natural person-- 6
(i) by delivering it to the person personally; or 7
(ii) by leaving it at, or by sending it by post, facsimile or 8
similar facility to the last known address of the place of 9
residence or usual place of business of the person; or 10
(iii) by sending it electronically to that person, but, in the case 11
of a small customer, only if the small customer has given 12
explicit informed consent to receiving the notice or other 13
document electronically; or 14
(b) on a body corporate-- 15
(i) by leaving it at the registered office or usual place of 16
business of the body corporate with an officer of the body 17
corporate; or 18
(ii) by sending it by post, facsimile or similar facility to its 19
registered office or its usual place of business; or 20
(iii) by sending it electronically to that body corporate or an 21
officer of the body corporate. 22
(2) Nothing in subsection (1)-- 23
(a) affects the operation of another law that authorises the service of 24
a notice or document otherwise than as provided in that 25
subsection; or 26
(b) affects the power of a court or tribunal to authorise service of a 27
notice or other document otherwise than as provided in that 28
subsection. 29
(3) If-- 30
(a) this Law or the Rules require or permit a notice or other document 31
to be given on a "business to business" basis between distributors 32
and retailers or otherwise (whether the expression "deliver", 33
"give", "notify" or "send" or another expression is used); and 34
(b) the Retail Market Procedures make provision with respect to the 35
procedure for giving the notice or other document, 36
compliance with that procedure is taken to satisfy any requirements of 37
this Law or the Rules relating to the giving of the notice or other 38
document. 39
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(4) Subsections (1) and (2) apply except to the extent a contrary intention 1
appears in this Law and the Rules, and subsection (3) applies except to 2
the extent a provision of this Law or the Rules expressly provides that 3
that subsection does not apply. 4
320 Law and the Rules to be construed not to exceed legislative power of 5
Legislature 6
(1) This Law and the Rules are to be construed as operating to the full 7
extent of, but so as not to exceed, the legislative power of the 8
Legislature of this jurisdiction. 9
(2) If a provision of this Law or the Rules, or the application of a provision 10
of this Law or the Rules to a person, subject matter or circumstance 11
would, but for this section, be construed as exceeding the legislative 12
power of the Legislature of this jurisdiction-- 13
(a) it is a valid provision to the extent to which it is not in excess of 14
the power; and 15
(b) the remainder of this Law or the Rules, and the application of the 16
provision to other persons, subject matters or circumstances, is 17
not affected. 18
(3) If a provision of this Law or the Rules imposes a duty on a 19
Commonwealth officer or body to perform a function or exercise a 20
power where the imposition of such a duty would-- 21
(a) contravene any constitutional doctrine restricting the duties that 22
may be imposed on a Commonwealth officer or body; or 23
(b) otherwise exceed the legislative power of the Legislature of this 24
jurisdiction, 25
that provision is to be taken instead to confer on the officer or body a 26
discretion to perform the function or exercise the power. 27
(4) This section does not limit the effect that a provision of this Law or the 28
Rules would validly have apart from this section. 29
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