Northern Territory Explanatory Statements

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NATIONAL ELECTRICITY (NORTHERN TERRITORY) (NATIONAL UNIFORM LEGISLATION) BILL 2015

This is a formal clause which provides for the citation of the Bill. The Bill when passed may be cited as the National Electricity (Northern Territory)(National Uniform Legislation) Act 2015.

Clause 2. Commencement

Part 2 and Part 4, Division 2 commence on 1 July 2016; Part 4, Divisions 3 and 4 commence on 1 July 2019; and Part 5 commences on 1 July 2015. All remaining provisions in the Act commence on the day on which the Administrator’s assent to the Act is declared.

The Northern Territory is adopting a three stage approach to the implementation of the National Electricity Law in the Territory. In the first stage, the AER will replace the Northern Territory Utilities Commission as the economic regulator under the Northern Territory’s Electricity Networks (Third Party Access) Act. This phase will run from 1 July 2015 until 30 June 2019.

In stage two, certain provisions of the National Electricity Law will commence on 1 July 2016 in the Territory. This will establish the legislative framework to allow the Australian Energy Regulator (the AER) to undertake the preliminary work to make their first network pricing determination (which is to take effect on 1 July 2019) of the Territory’s electricity network service provider, the Power and Water Corporation.

Stage three will involve full operation of the National Electricity Law (as it applies in the Territory) from 1 July 2019.

Clause 3. Interpretation

This clause defines the terms National Electricity (NT) Law, National Electricity (NT) Regulations and National Electricity (NT) Rules.

This clause confirms that words and expressions used in this Act and also in the National Electricity (NT) Law have the same meanings in this Act as they have in that Law. However, this does not apply to the extent that the context or subject matter otherwise indicates or requires.

Clause 4. Crown to be bound

This clause provides that this Act, the National Electricity (NT) Law and the National Electricity (NT) Regulations will bind the Crown in each of its capacities.

Clause 5. Extra-territorial operation

This clause confirms that it is the intention of the Legislative Assembly that this Act, the National Electricity (NT) Law and the National Electricity (NT) Regulations should, so far as possible, include operation in relation to: land and things situated outside the Territory, whether in or outside Australia; acts, transactions and matters done, entered into or occurring outside the Territory, whether in or outside Australia; things, acts, transactions and matters (wherever situated, done, entered into or occurring) that would, apart from this Act, be governed or otherwise be affected by the law of the Commonwealth, a State, another Territory or a foreign country.

Part 2. Adoption of National Electricity Law

Division 1. National Electricity (NT) Law and National Electricity (NT) Regulations

Clause 6. Application in Territory of National Electricity Law

The National Electricity Law forms part of a co-operative scheme for regulation of the national electricity market. The lead legislation is the National Electricity (South Australia) Act 1996 (SA). This clause provides that the National Electricity Law set out in the Schedule to the National Electricity (South Australia) Act 1996 (SA), as in force for the time being applies, with the modifications set out in Schedule 1, as a law of the Territory and may be referred to as the National Electricity (NT) Law.

Clause 7. Application in Territory of regulations under National Electricity Law

This clause provides that the regulations in force for the time being under Part 4 of the National Electricity (South Australia) Act 1996 (SA) apply with any modifications under section 13(2)(b), as regulations in force for the purposes of the National Electricity (NT) Law and as so applying, may be referred to as the National Electricity (NT) Regulations.

Clause 8. Interpretation of expressions in National Electricity (NT) Law and National Electricity (NT) Regulations

Sub-clause 1 defines the terms Legislature of this jurisdiction, Supreme Court, the jurisdiction or this jurisdiction and National Electricity Law or this Law as included the National Electricity (NT) Law and the National Electricity (NT) Regulations.

Sub-clause 2 provides that the Acts Interpretation Act 1915 (SA) and other Acts of South Australia do not apply to the National Electricity Law set out in the Schedule to the National Electricity (South Australia) Act 1996 (SA) in its application as a law of the Territory; or the regulations in force for the time being under Part 4 of the National Electricity (South Australia) Act 1996 (SA) in their application as regulations in force for the purposes of the National Electricity (NT) Law.

Division 2. General Matters

Clause 9. Declaration of local distribution systems

This clause declares that each distribution system listed in Schedule 2, and any augmentation of that system, is a local distribution system for the purposes of the National Electricity (NT) Law. This has the effect of applying the National Electricity Law to all existing regulated distribution systems in the Territory.

Clause 10. Conferral of functions and powers on Commonwealth bodies to act in this jurisdiction

This clause provides that a Commonwealth body (defined as the AER or the Tribunal (being the Australian Competition Tribunal) in this clause) has power to do acts in or in relation to the Territory in the performance or exercise of a function or power expressed to be conferred on the Commonwealth body by the national electricity legislation of another participating jurisdiction.

Clause 11. Extension of reading-down provision

This clause states that clause 2 of Schedule 2 of the National Electricity (NT) Law has effect in relation to the operation of any provision of this Act as if the provision formed part of that Law. This does not limit the effect that a provision would validly have apart from the subsection.

Clause 12. Exercise of powers under provision not yet in effect

This clause allows for the exercise of powers under provisions of the National Electricity Law that have not yet commenced in the Territory.

The Northern Territory modifications to the National Electricity Law provide for certain provisions to not have effect until a future time. This clause ensures that such certain functions or powers conferred under the deferred provisions (such as to make appointments or to make statutory instruments) can still be made, prior to the modification’s expiry.
Part 3. Regulations

Clause 13. Regulations

This clause provides that the Administrator may make regulations under this Act and lists what the regulations may do. Further, the clause provides that the Administrator may make regulations contemplated by the National Electricity (NT) Law as being made under this Act as the application Act of the Northern Territory.

Clause 14. Regulations for transitional matters and consequential amendments for 1 July 2016

This clause provides that the regulations may amend Part 4, Division 2 to provide for matters of a transitional nature consequent on the commencement of Part 2 or to otherwise facilitate the transition to the application and operation of the National Electricity (NT) Law and that the regulations may amend any law of the Territory to make amendments of a consequential nature on the commencement of Part 2.

This clause also states that this section, and each regulation made under it, expires on 2 July 2016.

Clause 15. Regulations for transitional matters and consequential amendments for 1 July 2019

Sub-clause 1 provides that the regulations may amend Part 4, Division 4 to provide for matters of a transitional nature consequent on the repeal of the Acts repealed by section 17; or the deferred provisions starting to have effect as part of a law of the Territory; or to otherwise facilitate the transition to the operation of the National Electricity (NT) Law including deferred provisions.

Sub-clause 2 provides that the regulations may amend any law of the Territory to make amendments of a consequential nature consequent on the repeal of the Acts repealed by section 17; or the deferred provisions starting to have effect as part of a law of the Territory.

Sub-clause 3 states that this section, and each regulation made under it, expires on 2 July 2019.

Sub-clause 4 provides for the definition of deferred provisions and modification.

Part 4. Repeals and transitional matters

Division 1. Transitional matters for National Electricity (Northern Territory) (National Uniform Legislation) Act 2015 – 1 July 2015

Clause 16. Definitions

This clause provides, despite section 3(1), and until 1 July 2016, transitional definitions for National Electricity (NT) Law, National Electricity (NT) Regulations and National Electricity (NT) Rules in this Act.

Division 2. Transitional matters for National Electricity (NT) Law – 1 July 2016

This Division is reserved for transitional provisions to be inserted by regulations under section 14(1).

Division 3. Repeals – 1 July 2019

Clause 17. Acts repealed

This clause provides for the repeal of the Electricity Networks (Third Party Access) Act 2000 (Act No. 11 of 2000); and the Electricity Networks (Third Party Access) Amendment Act 2001 (Act No. 31 of 2001). These Acts will be repealed on 1 July 2019, at which time the National Electricity Law will replace the Electricity Networks (Third Party Access) Act as the relevant law regulating electricity distribution systems in the Northern Territory.

Division 4. Transitional matters for National Electricity (NT) Law – 1 July 2019

This Division is reserved for transitional provisions to be inserted by regulations under in section 15(1).

Part 5. Interim arrangements

Division 1. Electricity Networks (Third Part Access) Act

Clause 18. Act amended

This clause provides that this Division amends the Electricity Networks (Third Party Access) Act. Amendment of the Electricity Networks (Third Party Access) Act is necessary to enable the AER to assume the responsibilities as regulator under the Territory’s regulatory framework for the period between 1 July 2015 and 30 June 2019.

Clause 19. Long title replaced

This clause repeals the long title and replaces it with a new title.

Clause 20. Section 3 and Parts 2 and 3 replaced

This clause repeals Section 3 (Crown to be bound) and Parts 2 (Network Access Code) and 3 (Regulator) and inserts new clauses as outlined below.

Clause 2A. Interpretation

This new clause provides for definitions in the Electricity Networks (Third Party Access) Act, including that for the Network Access Code. Definitions include that for the regulator being the Australian Energy Regulator (AER).
Clause 2B. Act binds Crown

Sub-clause 1 provides that this Act binds the Crown in right of the Territory and, to the extent the legislative power of the Legislative Assembly permits, the Crown in all its other capacities.

Sub-clause 2 states that nothing in the Electricity Networks (Third Party Access) Act makes the Crown liable to be prosecuted for an offence or liable for a civil penalty that may be imposed for breach of a civil penalty provision. This does not apply to an authority of the Territory that is an electricity entity.

Part 1A. General obligations of network participants

Clause 3A. Compliance with Network Access Code

Sub-clause 1 makes it a requirement for network participants, in relation to an Network Access Code electricity network, to comply with the Network Access Code; a network pricing determination; any other regulatory determination made under the Network Access Code; an order or direction (however described) made or given by the regulator under the Network Access Code.

Sub-clause 2 provides that this section is a civil penalty provision.

Clause 3B. Compliance with price regulation determinations

Sub-clause 1 requires that a network participant to whom a determination made under section 6B applies must comply with the determination.

Sub-clause 2 provides that this section is a civil penalty provision.

Part 2. Network Access Code

Clause 4A. NAC electricity networks

This clause provides that the Network Access Code applies in relation to an electricity network that is prescribed by the Minister, by Gazette notice, to be an electricity network to which the Network Access Code applies (an NAC electricity network).

Clause 4B. Amendment of Network Access Code
This clause provides that regulations may amend the Network Access Code.

Clause 4C. Minister may prescribe matters for Network Access Code

This clause provides that the Minister may, by Gazette notice, prescribe matters required or permitted by the Network Access Code to be prescribed; or necessary or convenient to be prescribed for carrying out and giving effect to the Network Access Code.

Part 3 Regulator

Division 1. Functions and powers – general matters

Clause 5A. Functions of regulator

This clause provides for the functions of the regulator.

Clause 5B. Matters to be taken into account when performing functions

This clause states what the regulator must have regard to in performing its functions under the Electricity Networks (Third Party Access) Act.

Clause 5C. Independence of regulator

This clause confirms the independence of the regulator by stating that in the performance of its function under the Electricity Networks (Third Party Access) Act, the regulator is not subject to the direction or control of the Minister.

Clause 5D. Powers of regulator

The clause provides that the regulator has power to do all things necessary or convenient to be done for, or in connection with, the performance of its functions.

Clause 5E. Conferral of functions and powers on AER

The clause clarifies that without limiting section 59 of the Interpretation Act, the Electricity Networks (Third Party Access) Act is not to be construed as imposing a duty on the regulator to perform a function or exercise a power if the imposition of the duty would exceed the legislative power of the Legislative Assembly.

Clause 5F. Delegation

Sub-clause 1 enables the regulator to delegate any of its powers and functions under the Electricity Networks (Third Party Access) Act to a person.

Sub-clause 2 clarifies that any delegation by the AER under section 44AAH of the Competition and Consumer Act 2010 (Cth) that is relevant to the regulator’s powers and functions under this Act extends to, and has effect for the purposes of the Electricity Networks (Third Party Access) Act.

Clause 5G. Guidelines

This clause provides for the regulator to make guidelines and clarifies that when there is an inconsistency between National Electricity Law guidelines applying under sub-clause 2 and any guidelines under sub-section 1, the National Electricity Law guidelines prevail to the extent of the inconsistency.

This clause also requires the regulator to publish guidelines made under this section on its website.

Clause 5H. Statements and reports

This clause provides that the regulator may publish statements and reports in relation to the performance of its functions.

Division 2. Economic regulatory determinations

Clause 6A. Regulator to make economic regulatory determinations

This clause provides that the regulator may make network pricing determinations in accordance with Chapter 6 of the Network Access Code.

Sub-clause 2 states that the regulator may make price regulation determinations under section 6B and determinations (other than network pricing determinations) mentioned in the Network Access Code.


Clause 6B. Price regulation determinations

This clause enables the regulator to make a determination regulating prices and conditions for network services. The section applies subject to the provisions of the Network Access Code.

The clause also provides that the determination may regulate prices in any manner the regulator consider appropriate including those listed in the sub-clause.

Further, the clause provides those things the regulator must have regard to in making the determination.

The clause also states that price includes a price range.

Clause 6C. Economic regulatory determinations must include reasons.

This clause states that an economic regulatory determination must include a summary of the information on which it is based and a statement of the regulator’s reasons for making the determination.

Clause 6D. Publication of economic regulatory determination

This clause states that the regulator must publish an economic regulatory determination on its website; and make copies of the determination available for public inspection at the regulator’s public offices.

Clause 6E. Commencement and duration of economic regulatory determination

This clause states that an economic regulatory determination takes effect on the date on which it is published on the regulator’s website or at a later date specified in it; and has effect until it is revoked or until an expiry date specified in it.

Division 3. Miscellaneous matters for regulator

Clause 7A. Consideration by regulator of submissions

This clause provides that if, under the Electricity Networks (Third Party Access) Act, the regulator publishes a notice inviting submissions in relation to the making of an economic regulatory decision, the regulator in making the decision must consider every submission it receives within the period specified in the notice; and may, but need not, consider a submission it receives after the period specified in the notice expires.

Clause 7B. Regulator to inform certain persons of decisions not to investigate breaches etc.

Sub-clause 1 states that if the regulator is given information by any person in relation to a breach or a possible breach of the Electricity Networks (Third Party Access) Act by a person but decides not to investigate that breach or possible breach; or following an investigation, decides not to institute any proceedings in respect of that breach or possible breach under Part 6; or serve an infringement notice in accordance with Part 6, Division 5 in respect of that breach or possible breach; the regulator must notify that person of the decision in writing.

Sub-clause 2 advises that this section does not apply if the person gave the information to the regulator anonymously.

Clause 7C. Effect of delay in making decision

Sub-clause 1 provides that a decision (however described) made under the Electricity Networks (Third Party Access) Act by the regulator after the expiry of the period of time specified by this Act for making the decision is not to be taken as an invalid decision only because the decision is not made within the specified period.

Sub-clause 2 states that a decision to which sub-section 1 applies takes effect on the day it is made or any later day specified in it.

Clause 7D. Annual report to be tabled

This clause requires the Minister to table a copy of a report from the regulator under section 44AAJ of the Competition and Consumer Act 2010 (Cth) in the Legislative Assembly within 6 sitting days after the Minister receives the report.

Part 3A. Information gathering powers and related matters

Division 1. Search warrants

Clause 8A. Authorised person

Sub-clause 1 enables the regulator to authorise a person that the regulator considers is suitably qualified or trained to be an authorised person for the purposes of this Division. The authority must be in writing.

Sub-clause 2 states that an authorised person must comply with any direction of the regulator in exercising powers or functions as an authorised person.

Clause 8B. Identity cards

This clause requires the regulator to issue an identity card to an authorised person. The identity card must contain the name, a recent photograph and the signature of the authorised person. An authorised person must carry the identity card at all times when exercising powers or performing functions as an authorised person.

The clause also requires an authorised person to produce his or her identity card for inspection before exercising a power as an authorised person; or at any time during the exercise of a power as an authorised person, if asked to do so.

Clause 8C. Return of identity cards

This clause states that if a person to whom an identity card has been issued ceases to be an authorised person, the person must return the identity card to the regulator as soon as practicable. A maximum penalty of 10 penalty units applies to this clause.

Clause 8D. Search warrant

Sub-clause 1 provides for the reasons an authorised person may apply to a magistrate for the issue of a search warrant in relation to a particular place.

Sub-clause 2 provides that if a magistrate is satisfied by the evidence, on oath or by affidavit, of an authorised person that there are reasonable grounds for suspecting that there is, or may be within the next 7 days, a thing or things of a particular kind connected with a breach or possible breach of a provision of the Electricity Networks (Third Party Access) Act on or in a place, the magistrate may issue a search warrant authorising an authorised person named in the warrant to do that listed in the sub-clause.

Sub-clause 3 provides for what a search warrant issued under this section must state.

Sub-clause 4 states that except as provided by this Act, the rules to be observed with respect to search warrants mentioned in any relevant laws of the Territory extend and apply to warrants under this section.

Clause 8E. Announcement of entry and details of warrant to be given to occupier or other person at premises

Sub-clause 1 applies if the occupier or another person who apparently represents the occupier is present at premises when a search warrant is being executed.

Sub-clause 2 requires the authorised person executing the warrant to identify himself or herself to that person; and announce that he or she is authorised by the warrant to enter the place; and before using force to enter, give the person an opportunity to allow entry; and give the person a copy of the warrant.

Sub-clause 3 states that the authorised person executing the warrant is not entitled to exercise any powers under the warrant in relation to premises if the authorised person does not comply with sub-clause 2.

Clause 8F. Announcement before entry

This clause provides that an authorised person executing a warrant need not comply with section 8E if he or she believes on reasonable grounds that immediate entry to premises is required to ensure the safety of any person; or that the effective execution of the search warrant is not frustrated.

Clause 8G. Copies of seized documents

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

Sub-clause 2 states that a copy of a document certified under sub-clause 1 shall be received in all courts and tribunals as evidence of equal validity to the original.

Clause 8H. Retention and return of seized documents or things

Sub-clause 1 provides that if an authorised person executing a warrant seizes a document or other thing in accordance with the warrant, the authorised person must, if he or she is not a person employed by the regulator, give the document or other thing seized to the regulator.

Sub-clause 2 requires that the regulator must take reasonable steps to return the document or thing to the person from whom it was seized if the reason for its seizure no longer exists.

Sub-clause 3 states that if the document or thing seized has not been returned within 3 months after it was seized, the regulator must take reasonable steps to return it unless: proceedings for the purpose for which the document or thing was retained have commenced within that 3 month period and those proceedings (including any appeal) have not been completed; or a magistrate makes an order under section 8J extending the period during which the document or thing may be retained.

Clause 8J. Extension of period of retention of documents or things seized

Sub-clause 1 enables the regulator to apply to a magistrate for an extension of the period for which the regulator may retain the document or thing but so that the total period of retention does not exceed 12 months.

Sub-clause 2 sets out that application must be made before proceedings for the purpose for which the document or thing was retained have been commenced.

Sub-clause 3 lists what must satisfy a magistrate for an extension to be ordered.

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

Sub-clause 5 states that at least 7 days prior to the hearing of an application under this section by a magistrate, notice of the application must be given to the owner of the document or thing described in the application.

Clause 8K. Obstruction of person authorised to enter

This clause states that a person must not, without reasonable excuse, obstruct or hinder an authorised person in the exercise of a power under a search warrant under this Division. The maximum penalty is 50 penalty units or imprisonment for 6 months.

Division 2. General information gathering powers

Clause 9A. Powers to obtain information and documents

Sub-clause 1 provides that a relevant notice may be served by the regulator if the regulator has reason to believe that a person is capable of providing information or producing a document that the regulator requires for the exercise of a power or performance of a function under the Electricity Networks (Third Party Access) Act.

Sub-clause 2 provides for what the relevant notice may require the person to do.

Sub-clause 3 requires a person who has been served with a relevant notice to comply with the notice unless the person has a reasonable excuse for not doing so. This is a civil penalty provision.

Without limiting sub-clause 3, it is a reasonable excuse for failing to comply with the notice if the person is not capable of doing so. Further, without limiting sub- clause 3, it is a reasonable excuse for an individual to fail to provide information of the kind referred to in sub-clause 1 to the regulator; or fail to produce a document of the kind referred to in sub-clause 1 to the regulator, or to a person specified in a relevant notice acting on behalf of the regulator; if to do so might tend to incriminate the person, or make the person liable to a criminal penalty, under a law of the Territory or another jurisdiction in Australia.

Sub-clause 4 states that subclause 3 is a civil penalty provision. Sub-clause 5 states that, without limiting sub-clause 3, it is a reasonable excuse for failing to comply with the notice if a person is not capable of doing so.

Sub-clause 6 outlines that, without limiting sub-clause 3, it is reasonable excuse for an individual to fail to provide certain information to the regulator if to do so may tend to incriminate the person, or make the person liable to a criminal penalty, under a law of the Territory or another jurisdiction of Australia.

Sub-clause 7 states that it is not a reasonable excuse for a person to fail to provide information of the kind referred to in sub-clause 1 to the regulator; or fail to produce a document of the kind referred to in sub-clause 1 to the regulator, or to a person specified in a relevant notice acting on behalf of the regulator; on the ground of any duty of confidence.

Sub-clause 8 and 9 provide for what a person is not required to do.

Sub-clause 10 states that person incurs, by complying with a relevant notice, no liability for breach of contract, breach of confidence or any other civil wrong.


Division 3. Regulatory information notices and general regulatory information orders

Subdivision 1. Interpretation

Clause 10A. Definitions

This clause provides definitions for contributing service and related provider.

Clause 10B. Meaning of contributing services

Sub-clause 1 states that a contributing service is a service that the regulator, in accordance with this section, decides is a service that contributes in a material way to the provision of a network service by a network provider.

Sub-clause 2 provides for what the regulator must have regard to in deciding whether a service is a service that contributes in a material way to the provision of a network service by a network provider.

Clause 10C. Meaning of general regulatory information order

This clause states that a general regulatory information order is an order made by the regulator in accordance with this Division that requires each network provider of a specified class, or each related provider of a specified class, to do either or both of the following: provide to the regulator the information specified in the order; prepare, maintain or keep information specified in the notice in a manner and form specified in the order.

Clause 10D. Meaning of regulatory information notice

This clause states that a regulatory information notice is a notice prepared and served by the regulator in accordance with this Division that requires the network provider, or a related provider, named in the notice to do either or both of the following: provide to the regulator the information specified in the notice; prepare, maintain or keep information specified in the notice in a manner and form specified in the notice.

Clause 10E. Division does not limit operation of information gathering powers under Division 2

This clause states that this Division does not limit the operation of Division 2.

Subdivision 2. Serving and making of regulatory information instruments
Clause 10F. Service and making of regulatory information instrument

This clause states that the regulator may serve a regulatory information notice on a network provider or a related provider or make a general regulatory information order. In considering whether it is reasonably necessary to serve a regulatory information notice, or a general regulatory information order, the regulator must have regard to the matter to be addressed by such a notice or order and also the likely costs that may be incurred by an efficient network provider in complying with the notice or order.

The clause also states that a regulatory information notice or a general regulatory information order must not be served solely for the purpose of investigating breaches or possible breaches of provisions of the Electricity Networks (Third Party Access) Act, including offences against the Electricity Networks (Third Party Access) Act, instituting and conducting proceedings in relation to breaches of provisions of the Electricity Networks (Third Party Access) Act, including offences against the Electricity Networks (Third Party Access) Act; or instituting and conducting appeals from decisions in proceedings referred to above; or collecting information for the preparation of a performance report.


Clause 10G. Additional matters to be considered for related provider regulatory information instruments

This clause outlines the factors, in addition to section 10F(2), that the regulator must take into account when it is intending to serve a regulatory information notice on a related provider or make a general regulatory information order that will apply to a class of related provider.
Clause 10H. Regulator must consult before publishing a general regulatory information order

The clause states that that the regulator must consult with the public in relation to the general regulatory information order it proposed to make prior to making that order.

Clause 10J. Publication requirements for general regulatory information order

This clause sets out that general regulatory information orders must be published on the regulator’s website and also published in a newspaper circulating generally throughout Australia.

Clause 10K. Opportunities to be heard before regulatory information notice is served

This clause states that prior to serving a regulatory information notice, the regulator must notify, in writing, the network provider, or related provider, of its intention to serve the regulatory information notice and provide a draft copy of the notice. Such notifications must also invite the network provider, or related provider, to make written representations to the regulator as to whether the regulator should serve the regulatory information notice on them and state the timeframe within which they may make such representations.

Subdivision 3. Form and content of regulatory information instruments

Clause 10L. Form and content of regulatory information instrument

This clause outlines that a regulatory information instrument must specify the information to the provided to the regulator or the information to be prepared, maintained or kept in the particular manner and form specified in the instrument, and the regulator’s reasoning for this and when such information must be provided. The regulatory information instruments must also specify the network providers or class of providers to whom the instrument applies.

Clause 10M. Further provision about the information that may be specified in a regulatory information instrument

Without limiting section 10L(1)(a), this clause outlines various types of information that may be required to be provided to the regulator, or to be prepared, maintained or kept, that may be specified in a regulatory information instrument.

Clause 10N. Further provision about manner in which information must be provided to regulator or kept

Without limiting section 10L(1)(b), this clause outlines the various manner in which information be provided to the regulator, including frequency, reporting requirements set out in the Regulations, or as set out by the regulator. The provided information will be verified by way of statutory declaration by an officer of the network provider and audited by a class of person specified in the instrument, at the expense of the network provider or related provider.

Subdivision 4. Compliance with regulatory information instruments

Clause 10P. Compliance with regulatory information notice that is served

Sub-clause 1 sets out that a person served a regulatory information notice must comply with the notice.

Sub-clause 2 provides that this section is a civil penalty provision.

Clause 10Q. Compliance with general regulatory information order

Sub-clause 1 establishes compliance requirements for a person who is a member of a class of person to which a general regulatory information order applies.

Sub-clause 2 provides an exemption under section 10R.

Sub-clause 3 provides that this section is a civil penalty provision.


Clause 10R. Exemptions from compliance with general regulatory information order

Sub-clause 1 sets out that the regulator may exempt a person, or class of person, from complying with section 10Q. The regulator has the powers to provide an unconditional, conditional or whole exemption.

Sub-clause 2 provides that the exemption must be in writing.


Clause 10S. Assumptions where there is non-compliance with regulatory information instrument

Sub-clause 1 establishes that this clause will apply if either the network provider or a related provider does not provide information sought by the regulator to make an economic regulatory decision relating to the network provider in accordance with the applicable regulatory information instrument or is determined to be insufficient when compared to what was requested.

Without limiting sections 10P and 10Q and despite anything to the contrary in the Electricity Networks (Third Party Access) Act, sub-clause 2 establishes that the regulator may make an economic regulatory decision on the basis of the information the regulator has at the time it makes that decision. Additionally, the regulator may make reasonable assumptions in respect of the matters the information required under the regulatory information instrument would have addressed had the information been provide as required.


Subdivision 5. General

Clause 10T. Person cannot rely on duty of confidence to avoid compliance with regulatory information instrument

This clause establishes that a person must not refuse to comply with a regulatory information instrument on the ground of any duty of confidence, with a person not incurring any liability for a breach of contract, breach of confidence or any other civil wrong resulting.


Clause 10U. Legal professional privilege not affected

This clause establishes that a regulatory information instrument and sections 10P and 10Q do not require a person to provide the regulator information or produce documents which would disclose information that is subject of legal professional privilege.


Clause 10V. Protection against self-incrimination

This clause establishes that it is a reasonable excuse for an individual to whom sections 10P and 10Q applies to not comply with either the regulatory information notice or general regulatory information order, if to do so might then to incriminate the person, or make the person liable to a criminal penalty, under a law of the Territory or another jurisdiction in Australia.


Division 4. Offences

Clause 11A. False and misleading information

This clause states that it is an offence for a person to give information that is misleading in a material particular to the regulator under the Electricity Networks (Third Party Access) Act.

A maximum penalty of 200 penalty units or imprisonment for 2 years applies to this offence.

Clause 11B. Intimidation to prevent cooperation with regulator

This clause establishes that it is an offence for one individual to cause, or threaten to cause, harm to another individual, who intended to cooperate, or had cooperated, or is cooperating with the regulator.

This clause also provides that in cooperating with a regulator, an individual can either be complying with a requirement under this Part to give information to the regulator, and be voluntarily providing information to the regulator.

A maximum penalty of 400 penalty units or imprisonment for 2 years applies to this offence.


Part 3B. Use and disclosure of information

Division 1. Use of information by regulator

Clause 12A. Use of information

This clause provides that the regulator may use information obtained by it through the exercise of its powers of performance of its functions under Part 3A or in connection with the administration of the Electricity Networks (Third Party Access) Act, for any purpose under the Electricity Networks (Third Party Access) Act, or the National Electricity (Northern Territory) (National Uniform Legislation) Act.

Division 2. Performance reports

Clause 13A. Preparation of performance reports

Sub-clause 1 provides that the regulator may prepare a report on the financial or operational performance of one of more network providers in providing network services.

Sub-clause 2 sets out what a report prepared under this sections may detail, including a network providers ability to comply with service standards, network services and profitability. The report, if the regulator considers it appropriate, deal with the performance of a network provider if that performance is directly related to the performance by a regulator of a function mentioned in section 5A(b).

Sub-clause 3 states that the report may include information provided in compliance with a regulatory information instrument and make a comparison of the profitability of the network providers to which the report relates from the provision of network services by them.

Sub-clauses 4 and 5 states that the regulator must consult with persons or bodies specified by the Regulations before preparing a report and may be published on the regulators website.

Division 3. Disclosure of confidential information held by regulator

Subdivision 1. Requirement to keep information confidential

Clause 14A. Confidentiality

This clause establishes that Section 44AAF of the Competition and Consumer Act 2010 (Cth) has effect for the purpose of this Act as if it formed part of this Act.


Subdivision 2. Authorised disclosure of confidential information

Clause 14B. Authorised disclosure of information given to regulator in confidence

This clause provides that the regulator is authorised to disclose information given to it in confidence, or in connection with, the exercise of its powers or performance of its functions under the Electricity Networks (Third Party Access) Act subject to and in accordance with Part 3B.

Clause 14C. Disclosure with prior written consent is authorised

This clause provides that the regulator is authorised to disclose information given to it in confidence if written consent is provided by the person who gave the information or the person from whom information has been provided from.

Clause 14D. Disclosure for purposes of proceedings and to accord natural justice

This clause provides that the regulator is authorised to disclose information given to it in confidence for the purpose of civil or criminal proceedings of for the purpose of according natural justice to a person affected by a decision of the regulator under the Electricity Networks (Third Party Access) Act.

Clause 14E. Disclosure of information given to regulator with confidential information omitted

This clause provides that the regulator may disclose a document with confidential information omitted. The regulator must note at the place in the document from which the information given in confidence is omitted to the effect that that information has been omitted from the document.

Clause 14F. Disclosure of information given in confidence does not identify anyone

This clause provides that the regulator may disclose information given to it in confidence if it does not disclose any elements of the information that could lead to the identification of the person to whom that information relates or the manner in which it discloses the information does not identify the person to whom that information relates.

Clause 14G. Disclosure of information that has entered the public domain

This clause provides that the regulator may disclose information given to it in confidence, if the information is already in the public domain.

Clause 14H. Disclosure of confidential information authorised if detriment does not outweigh public benefit

Sub-clause 1 established that despite sections 14E, 14F or 14G but subject to this section, the regulator is authorised to disclose confidential information after the restricted period if in the opinion of the regulator the disclosure of the information would not cause detriment or that although the disclose of information may cause detriment, the public benefit would be greater.

Sub-clause 2 provides that the regulator must give written notice, being an initial disclosure notice, and reasoning as to why the regulator has chosen to disclose the information.

Sub-clause 3 provides that if the regulator is aware that the person who gave the information in turn received the information from another person and is aware of that person’s identity and address, the regulator must give written notice and reasoning as to why the regulator has chosen to disclose the information.

Sub-clause 4 establishes that the regulator must consider every representation made to it by a person give an initial disclosure notice within a specified timeframe.

Sub-clause 5 establishes that the specified timeframe cannot be less than 5 business days.

Sub-clause 6 provides that after considering the representations, the regulator must give written notice, being an further disclosure notice, and reasoning as to why the regulator has chosen to disclose the information.

Sub-clause 7 provides that the disclosure of information already in the public domain at the time the regulator wishes to disclose is not detrimental to any person referred to in sub-clauses 2 and 3.

Sub-clause 8 establishes that in this section, restricted period means a period of 5 business days after an initial disclosure notice has been issues or a further disclosure notice has been issues, whichever is the later.

Subdivision 3. Information sharing with regulator

Clause 14J. Disclosure by Territory authority to regulator

This clause establishes that a Territory authority has the authority to disclose information to the regulator which is required by the regulator for any purpose connected with the administration of the Electricity Networks (Third Party Access) Act.

The clause also provides the Territory authority to impose conditions to be complied with in relation to the information and that any person who provides information in good faith, is not liable for civil or criminal charges and does not breach any obligation of confidentiality.

The clause also establishes the terms Territory authority and electricity Act.

This modification allows for the Minister, rather than the regulator, to recover costs from arbitration in a court of competent jurisdiction. This is because the AER (as regulator) does not wish to administer the recouping such costs under the Territory’s legislation, and instead another mechanism needs to be put in place, being the Minister.

Clause 22. Part 5 Heading Amended

This modification is to ensure that it is clear that enforcement relates to access agreements and awards.

Clause 23. Section 19 amended

This amendment modifies section 19(1),(2),(3) to align the provision with those in the National Electricity Law. Section 19(9) is inserted to make it clear that this section does not affect any right of a party to an access agreement or award to enforce the agreement or award under the law of contract.

Clause 24. Part 6 and & 7 replaced

This clause repeals Part 6 (Proceedings and civil penalties) and Parts 7 (Miscellaneous) of the Electricity Networks (Third Party Access) Act and inserts new Part 6 and 7 as outlined below.

Part 6. Enforcement of compliance with Act

This modification omits Part 6 and replaces it with equivalent text from the National Electricity Law, as well components of the Territory’s Electricity Networks (Third Party Access) Act, Electricity Reform Act and Utilities Commission Act. The intent is to align the Territory’s legislation with the National Electricity Law.


This section sets out arrangements relating to civil proceeding; enforceable undertakings; proceedings for breaches; civil penalties; infringement notices for breaches; liability of bodies corporate, officers and employees; and, evidentiary matters.

Division 1. General

Clause 21. Instituting civil proceedings

This clause provides for limitations on breaches of provisions which can be brought before a Territory court for civil matters. This is to distinguish and clarify the roles and responsibilities of a network participant, access applicant and regulator.

This clause aligns with section 59 of the National Electricity Law and section 22 of the Electricity Networks (Third Party Access) Act.

Division 2. Enforceable undertakings
Clause 22. Enforceable undertakings

This clause establishes the parameters in which an undertaking by a person can occur and allows for an undertaking to be withdrawn, with the approval and consent of the regulator.

The clause also establishes what actions the regulator can take if a person has breached any terms of the undertaking and the sanctions that can be placed upon them.

This clause aligns with section 59A of the National Electricity Law.

Division 3. Proceedings for breaches of provisions that are not offences

Subdivision 1. Proceedings for breaches generally

Clause 23. Time limit within which regulator may institute proceedings

This clause establishes the regulator has the ability to undertake a proceeding of a breach of a provision, other than an offence provision, within the Electricity Networks (Third Party Access) Act up to 6 years from the date of which the breach occurred. This clause looks to provide the regulator the ability to retrospectively pursue breaches.

This clause aligns with section 60 of the National Electricity Law.

Clause 24. Order that person is in breach

This clause sets out the powers of the Supreme Court in regards to making an order for a breach of a provision in the Electricity Networks (Third Party Access) Act that is not an offence provision by the regulator on behalf of the Commonwealth. The Supreme Court is provided a number of different deterrents/penalties that can be imposed within the order.

Further, the Supreme Court has the power to order a person to stop or alter their actions if a person has engaged, is engaging or is proposing to engage in any conduct that is breach of a provision in the Electricity Networks (Third Party Access) Act that is not an offence provision.

This clause aligns with section 61 of the National Electricity Law and sections 19, 23 and 24 of the Utilities Commission Act.

Clause 25. Additional court orders

This clause provides for further actions that the Supreme Court can include in an order against a person under section 24, including the physical disconnection of a network participant’s connection points; the suspension or termination of an access agreement or award; and the repayment of any profits derived from any actions associated with a breach.

This clause aligns with section 62 of the National Electricity Law, section 19(e) of the Electricity Networks (Third Party Access) Act, section 23(9) of the Utilities Commission Act and section 31(2) of the Electricity Reform Act.

Clause 26. Orders for disconnection in certain circumstances where there is no breach

This clause establishes the powers for the Supreme Court, on application by the regulator on behalf of the Commonwealth, to make an order requiring the physical disconnection of a network participant’s connection points if a relevant disconnection event occurs. Relevant disconnection events are specified within the Network Access Code.

This clause aligns with section 63 of the National Electricity Law and section 19(1)(e) of the Electricity Networks (Third Party Access) Act.

Clause 27. Double jeopardy

This clause sets out that a Court must not make a declaration that a person is in breach of a provision of the Electricity Networks (Third Party Access) Act that is not an offence provision if the person has been convicted of an offence constituted by conduct that is substantially the same as the conduct constituting the breach.

This clause aligns with Schedule 2, clause 39 of the National Electricity Law.

Subdivision 2. Matters about civil penalty provisions

Clause 28. Meaning of civil penalty

This clause sets out the financial penalties to apply to an individual or for a body corporate in breach of a civil penalty provision.

This clause aligns with section 2AA of the National Electricity Law and section 28(2)(b) of the Electricity Networks (Third Party Access) Act.

Clause 29. Matters for which there must be regard in determining amount of civil penalty

This clause sets out relevant matters that must be taken into account when a civil penalty is imposed on a person deemed to be in breach of a provision of the Electricity Networks (Third Party Access) Act.

This clause aligns with section 64 of the National Electricity Law.

Clause 30. Breach of a civil penalty provision is not an offence

This clause establishes that a breach of a civil penalty provision is not an offence.

This clause aligns with section 65 of the National Electricity Law.

Clause 31. Breaches of a civil penalty provision involving continuing failure

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

This clause aligns with section 66 of the National Electricity Law.

Clause 32. Conduct in breach of more than one civil penalty provision

This clause allows for proceedings against a person for actions that constitutes a breach of 2 or more civil penalty provisions. However, the person is not liable to more than one civil penalty under the Electricity Networks (Third Party Access) Act in respect of the same conduct.

This clause aligns with section 67 of the National Electricity Law.

Clause 33. Persons involved in breach of civil penalty provision

This clause extends the provisions of civil penalties to a person who has aided, abetted, counselled or procured a breach of a civil penalty provision by another person; or to be in any way directly or indirectly knowingly concerned in, or a part to, a breach of another person.

This clause aligns with section 68 of the National Electricity Law.

Clause 34. Attempt to breach civil penalty provision

This clause establishes that a person who attempts to commit a breach of a civil penalty provision commits a breach of that provision.

This clause aligns with section 68A of the National Electricity Law.

Division 4. Other civil proceedings

Clause 35. Obligations under Act to make payments

This clause establishes the timeframes in which a network participant is required to pay another network participant. If payment is not made with the stated timeframe, then action can be taken against the them in a court of competent jurisdiction.

The clause also sets out that the amount to be paid is still required despite a network participant disputing the payment in accordance with this Act. Additionally, the cause sets out where a dispute may negate the need for any payment.

This clause aligns with section 72 of the National Electricity Law and section 25 of the Electricity Networks (Third Party Access) Act.

Division 5. Infringement notices for breaches of civil penalty provisions

Clause 36. Power to serve a notice

This clause sets out the means and timeframe in which the regulator is required to serve an infringement notice on a person that it has reasons to believe has breach a civil penalty provision and the timeframe in which an infringement notice can be served.

This clause aligns with section 74 of the National Electricity Law.

Clause 37. Form of notice

This clause sets out the information required to be detailed on an infringement notice, requirements for payment of any infringement penalty and the entitlements of the person served the infringement notice.

This clause aligns with section 75 of the National Electricity Law.

Clause 38. Infringement penalty

This clause sets out the maximum penalty to be applied to either an individual or body corporate for infringement penalty regarding a beach of a civil penalty provision.

This clause aligns with section 76 of the National Electricity Law.

Clause 39. Regulator cannot institute proceedings while infringements notice on foot

This clause sets out the reasons for which a regulator, on serving an infringement notice, cannot institute a proceeding in respect of a breach for which the infringement notice was served.

This clause aligns with section 77 of the National Electricity Law.

Clause 40. Late payment of penalty

This clause allows for the regulator to accept payment of the infringement penalty even after the expiration of the time for a payment stated in the infringement notice. This allows a regulator to determine whether it would be financial prudent to consider further action to be taken once payment has been made based on associated costs to recovering funds.

This clause aligns with section 78 of the National Electricity Law.

Clause 41. Withdrawal of notice

This clause allows for the regulator to withdraw an infringement notice at any time before the end of the time for payment specified in the notice by service a withdrawal notice on the person served with the infringement notice. It also outlines the methods of which a withdrawal notice may be served on a person.

This clause aligns with section 79 of the National Electricity Law.

Clause 42. Refund of infringement penalty

This clause states that if an infringement notice is withdrawn in accordance with section 41, the amount of any infringement penalty paid must be refunded by the regulator.

This clause aligns with section 80 of the National Electricity Law.

Clause 43. Payment expiates breach of civil penalty provision

This clause outlines the circumstances under which the regulator may not take proceedings against a person on whom an infringement notice was served in respect of an alleged breach of a civil penalty.

This clause aligns with section 81 of the National Electricity Law.


Clause 44. Payment not to have certain consequences

This clause states that the payment of an infringement penalty under this Division is not and must not be taken to be an admission of a breach of a civil penalty provision or an admission of liability for the purpose of any proceedings instituted in respect of the breach.

This clause aligns with section 82 of the National Electricity Law.

Clause 45. Conduct in breach of more than one civil penalty provision

This clause states that a person may be served one or more infringement notices under this Division if their conduct constitutes a breach of two or more civil penalty provisions. However, the person is not liable to pay more than one infringement penalty in respect of the same conduct.

This clause aligns with section 83 of the National Electricity Law.

Division 6. Liability of bodies corporate, officers and employees

Clause 46. Offences and breaches of civil penalty provisions by body corporate

This clause sets out that if a body corporate contravenes an offence provision or is in breach of a civil penalty provision, each officer of the body corporate is to be taken to have contravened the offence provision or to have been in breach of the civil penalty provision if the officer knowingly authorised or permitted the contravention or breach. The clause also sets out that an officer of a body corporate may be proceeded against under an offence provision or civil penalty provision pursuant to this section whether or not the body corporate has been proceeded against under the provision.

This clause aligns with section 85 of the National Electricity Law and section 39 of the Utilities Commission Act.

Clause 47. Body corporate also in breach if officers and employees are in breach

This clause sets out that if an officer or an employee of a body corporate commits an act in his or her capacity as officer or employee of the body corporate that would, if that act were committed by the body corporate, constitute a breach of the provision of this Act, the body corporate is taken to have contravened that provision.

This clause aligns with section 86 of the National Electricity Law.
Division 7. Evidentiary matters

Clause 48. Evidentiary certificates

This clause sets out the arrangement for evidentiary certificates in relation to proceedings under this Act. It also defines an AER officer.

This clause aligns with Schedule 2, clause 31AD of the National Electricity Law.

Part 7. Miscellaneous

Clause 49. Money payable to Territory

This clause states that all money payable under the Electricity Networks (Third Party Access) Act, is payable to the Territory, except where money is payable by a network participant or access applicant to another person who is a network participant or access participant.

This clause aligns with sections 59A(4) and 69 of the National Electricity Law and section 19 of the Utilities Commission Act (NT).

Clause 50. Protection from liability

This clause provides for civil and criminal liability protection for an AER member, person assisting the regulator under section 44AAC of the Competition and Consumer Act 2010, an authorised person or an arbitrator appointed under the Network Access Code for an act done or omitted in good faith. The clause also provides civil and criminal liability protection for a system controller and network provider and their officers and employees for an act done or omitted in good faith.

This clause aligns with section 26 of the Electricity Networks (Third Party Access) Act and section 41 of the Utilities Commission Act.

Clause 51. Confidentiality of information

This clause sets out the arrangements for information confidentiality and information disclosure for information obtained by a person in the course of performing functions connected with the administration of the Electricity Networks (Third Party Access) Act.

This clause aligns with section 26 of the Utilities Commission Act.

Clause 52. Publication on regulator’s website

This clause sets out the arrangements in relation to the publication of documents required by the Electricity Networks (Third Party Access) Act on the regulator’s website.

This clause aligns with Schedule 2, clause 31AA of the National Electricity Law.

Clause 53. Regulations

This clause sets out that the Administrator may make regulations under the Electricity Networks (Third Party Access) Act, that those regulations may provide for provisions in the regulations to be civil penalty provisions.

It also sets out that regulations may amend this Act if Part 3 or Part 6, Division 1,1A,2,4,5 or 6 of the National Electricity Law as set out in the in the Schedule to the National Electricity (South Australia) Act 1996 (SA) is amended, in order to provide for consistency between this Act and those parts of the National Electricity Law

Part 8. Transitional provisions for National Electricity (Northern Territory) (National Uniform Legislation) Act 2015

Division 1. Preliminary matters

Clause 54. Definitions

This clause sets out definitions for: Part 5 of the National Electricity (Northern Territory) (National Uniform Legislation) Act 2015; former; in force; and Utilities Commission, for the purpose of this Part.
Division 2. Continuation provisions

Clause 55. Continuation of Gazette notices for prescribed networks

This clause sets out that, on 1 July 2015, a Gazette notice made under former section 5 that was in force immediately before 1 July 2015 becomes a Gazette notice under section 4A.

This is a transitional provision made to ensure that the Network Access Code continues to apply to those prescribed electricity networks that were Gazetted prior to 1 July 2015.

Clause 56. Continuation of Gazette notices made for Network Access Code

This clause sets out that a Gazette notice made under the former section 7 of this Act for the purposes of a provision of the Network Access Code that was in force immediately before 1 July 2015 becomes a Gazette notice under the provision of the Network Access Code for the purposes of which it was made.

This is a transitional provision, to ensure continuity of those Gazette notices made prior to 1 July 2015.

Clause 57. Continuation of network pricing determination

This clause sets out that a network price determination made by the Utilities Commission under the Electricity Networks (Third Party Access) Act for the purposes of Chapter 6 of the Network Access Code that was in force immediately before 1 July 2015 becomes a network price determination made under section 6A(1).

This is a transitional provision to ensure continuity of network price determinations on 1 July 2015.

Clause 58. Continuation of other economic regulatory determinations

This clause sets out that a determination (other than a network price determination) that was made by the Utilities Commission under the Electricity Networks (Third Party Access) Act or the Utilities Commission Act or both; and relates to a matter in relation to which a determination could be made under section 6A(2); and was in force immediately before 1 July 2015 will, on 1 July 2015, become a determination made under section 6A(2).

This is a transitional provision to ensure continuity of regulatory determinations on 1 July 2015.

Clause 59. Continuation of guidelines

This clause sets out that guidelines that were published by the Utilities Commission before 1 July 2015; and relate to the regulator’s functions under this Act; and were in force immediately before 1 July 2015 will, on 1 July 2015, become guidelines made under section 5G relating to the comparable function of the regulator on or after 1 July 2015.

This is a transitional provision to ensure the continuity of guidelines on 1 July 2015.

Clause 60. Continuation of statements and reports

This clause sets out that a statement or report that was published by the Utilities Commission before 1 July 2015; and relate to the regulator’s functions under this Act; and were in force immediately before 1 July 2015 will, on 1 July 2015, become a statement or report made under section 5H relating to the comparable function of the regulator on or after 1 July 2015.

This is a transitional provision to ensure the continuity of statements and reports on 1 July 2015.


Clause 61. Continuation of ongoing things relating to regulator

This clause is a transitional provision to ensure that things made by, or done by or in relation to the Utilities Commission before 1 July 2015, was in force before 1 July 2015, is not the subject of another provision in this Act and is not a discontinued thing are continued to be a thing made by, or done by or in relation to the AER as regulator and having comparable effect after 1 July 2015.

Clause 62. References to Utilities Commission in documents

This clause sets out that a reference in a document, that was made before 1 July 2015 and that has effect on or after 1 July 2015, to the Utilities Commission in its capacity as regulator includes, in relation to a time on or after 1 July 2015, a reference to the AER as regulator, unless the context otherwise requires.

This is a transitional provision to ensure that references to the Utilities Commission are taken to be references to the AER, where appropriate, on 1 July 2015.

Division 3. Transitional obligations of Utilities Commission

Clause 63. Final annual report

This clause sets out that, on or before 30 September 2015, the Utilities Commission must give to the Minister a report on the work it carried out as regulator during the financial year ending 30 June 2015.

Clause 64. Utilities Commission to give information to AER

This clause sets out that, before, or as soon as practicable after 1 July 2015, the Utilities Commission must give to the AER all information obtained by the Utilities Commission as regulator that the AER might reasonably need in order to perform its functions as regulator.

Division 4. Other transitional matters

Clause 65. Appeals

This clause sets out that former section 14 of this Act and former Part 6 of the Utilities Commission Act continue to apply in relation to a decision made before 1 July 2015 as if Part 5 of the National Electricity (Northern Territory) (National Uniform Legislation) Act 2015 had not been enacted. It also sets out that for any appeal under the former appeal provisions, the Utilities Commission is taken to continue to be the regulator as if the 2015 Act had not been enacted.

Clause 66. Transitional regulation making power

This clause allows for the Administrator to make regulations under this section to provide for a matter of a transitional nature because of the enactment of the 2015 Act. Such regulations may have retrospective operation to a day not earlier than 1 July 2015, and where the regulations are retrospective, they do not operate to the disadvantage of a person by decreasing the person’s rights or imposing liabilities on the person.

Modifies the heading of the schedule from 4 to 4A.

Clause 26. Schedule, clause 1 amended

This modification to Schedule, clause 1(1) states that the Network Access Code deals with access to NAC Electricity Networks (as defined in section 4A of the Electricity Networks (Third Party Access) Act).

The modifications to Schedule, clause 1(2) removes reference to the Regulatory Minister prescribing the timing and levels of competition in the Territory’s electricity market under the Electricity Reform Act.

The modifications to Schedule, clause 1(4) omits reference to a network provider in this Code as being to the operator of a network regulated by this Code.

Clause 27. Schedule, clause 2A inserted

This insertion applies the Network Access Code to NAC Electricity Networks (as defined in section 4A of the Electricity Networks (Third Party Access) Act. It also outlines that in the Network Access Code, a reference to an electricity network is a reference to an NAC electricity network; and a reference to a network provider, network user, system controller and other electricity entity is a reference to a person or entity of that kind that uses an NAC electricity network.

Clause 28. Schedule, clause 3 amended

These modifications omit various definitions that are no longer required in the Network Access Code. Some definitions, such as access dispute, network provider, network user, power system controller, and regulator, have been moved to the Electricity Networks (Third Party Access) Act.

Definitions for Network Technical Code, prescribed and System Control Technical Code have been inserted for clarity.

Regulatory control period has been modified for clarity.

Other definitions have been modified to ensure consistency with other definitional modifications.

Clause 29. Schedule, clause 4 amended

This modification omits the words “out-of-balance energy” given the removal of the out-of-balance energy provisions from the Network Access Code.

Clause 30. Schedule, clause 6 amended

This modification is made as a considerable proportion of the access terms and conditions have been removed from Chapter 3 and put into regulations. This is because they are not matters to be administered by the AER.

Clause 31. Schedule, clause 7 amended

Schedule, clause 7(3) is omitted as the publishing of such guidelines is not to be administered by the AER. Network provider’s accounts must still be segregated under the Northern Territory Ring-fencing Code and guidelines currently issued by the Utilities Commission.

Clause 32. Schedule, clause 7A to 9 replaced

These modifications omit Schedule, clauses 7A to 9 as they are not matters to be administered by the AER. Instead, they will be covered under existing Ring-fencing, technical codes and criteria issued by the Utilities Commission.

Information gathering powers under Schedule, clause 8 have been moved to the Electricity Networks (Third Party Access) Act Part 3A. Arbitrator’s powers are in Electricity Networks (Third Party Access) Act section 15.

An insertion is also made to ensure that the network provider complies with good electricity practice when providing network access services and in planning, operating, maintaining, developing and extending the electricity network.

Clause 33. Schedule, clause 19 amended

This insertion ensures that the provision of network access services by the network provider under an access agreement is subject to any regulations made under section 111(2)(d) of the Electricity Reform Act.

Clause 34. Schedule, clause 22 amended

This modification clarifies that a regulator may determine the reimbursement amount payable under subclause (1).

Clause 35 Schedule, clause 23A, 25A to 30, 32 and 33 repealed

Schedule, clause 23A is being removed as it is not considered necessary to keep a register of access agreements.

Schedule, clauses 25A to 30, 32 and 33 are being removed as they are not matters to be administered by the AER. It is proposed that these schedules be temporarily moved to regulations made under the Electricity Reform Act, though it is not proposed that these regulations be finalised until the first half of 2015 as the development of the wholesale market may render the regulations unnecessary or change what is required.

As phase 1 of the National Electricity Law does not commence until 1 July 2015, a final decision on whether the regulations are required and as to their terms does not need to be made until May or June 2015.

Clause 36. Schedule, clause 35 amended

This modification bolds the terms access dispute as it is a key definition within the Electricity Networks (Third Party Access) Act.

Clause 37. Schedule, clause 53 amended

This modification removes the terms access from the term access awards.

Clause 38. Schedule, clause 60 amended

This modification reflects the omission of out-of-balance energy provisions from the Code.

Clause 39. Schedule, clause 61 amended

These modifications are made to be consistent with previous modifications, and the removal out-of-balance energy provisions, in the Network Access Code.

Clause 40. Schedule, clause 62 amended

These modifications are made to be consistent with the removal of the out-of-balance energy provisions from the Network Access Code.

Schedule, clause 62(2) ensures that if a person applies to regulator for approval under this part the regulator must give notice in writing to the applicant of its decision to grant or not to grant the approval.

Clause 41. Schedule, clause 63 amended

This modification replaces references to regulated services with network access services.

Clause 42. Schedule, clause 65 amended

This modification replaces references to Chapter 7 and 9 of the Code with a reference to Chapter 7 or the Electricity Reform (System Control and Market Operator Functions Code) Regulations to reflect previous amendments to the Network Access Code.

It also corrects a typographical error.

Clause 43. Schedule, clause 79 amended

This modification replaces a reference to the network technical code and network planning criteria with a reference to the Network Technical Code, as the Network Technical Code document includes both the network technical code and network planning criteria.

Clause 44. Schedule, Chapter 9 and Schedule 1 and 13 repealed

This modification repeals Chapter 9 and Schedules 1 and 13.

Chapter 9 is being removed as charges for out-of-energy balances are not matters to be administered by the AER. It is proposed that this Chapter be temporarily moved to regulations made under the Electricity Reform Act, though it is not proposed that these regulations be finalised until the first half of 2015 as the development of the wholesale market may render the regulations unnecessary or change what is required.

As phase 1 of the National Electricity Law does not commence until 1 July 2015, a final decision on whether the regulations are required and as to their terms does not need to be made until May or June 2015.

Schedule 1, which provides for the Network Technical Code and Network Planning Criteria are removed as they are not matters for the AER to administer. They will however continue to exist and apply as they are made under the Utilities Commission Act.

Schedule 13, which provides for an energy loss factor formula, is removed as it is not a matter for the AER to administer.

Division 2. Electricity Reform Act

Clause 45. Act amended
This clause provides that this Division amends the Electricity Reform Act.

Clause 46. Section 4 amended

This clause defines the terms:

Network Access Code as the term used within the Electricity Networks (Third Party Access) Act;

network provider as a person licensed under Part 3 of the Electricity Reform Act to operate an electricity network;

Network Technical Code as defined by section 66A(2) of the Electricity Reform Act; and

System Control Technical Code as defined by section 38(1) of the Electricity Reform Act.

Clause 47. Section 19 amended

Sub-clause 7 removes administrative costs arising from the Electricity Networks (Third Party Access) Act and the Network Access Code in determining a licence fee.

Clause 48. Section 27 amended

This clause amends sub-clause 1 to remove reference to the term network entity and replaces it with the term electricity entity.

Clause 49. Section 29 amended

This clause has minor grammatical edits to align with current Parliamentary Council writing style.

Clause 50. Section 38 amended

Sub-clause 1 provides that a technical code shall also be referred to as a System Control Technical Code.

Sub-clause 2 provides that as soon as practicable after the System Control Technical Code is approved, a copy must be provided to the regulator under the Electricity Networks (Third Party Access) Act.

Clause 51. Section 40 amended

Sub-clause 2 provides information deemed confidential in line with sub-clause 1 by the system controller may be disclosed to another person who is also performing a function under the Electricity Reform Act or the Electricity Networks (Third Party Access) Act.

Clause 52. Section 42 amended

Sub-clause 5 declares that an operator carrying out relevant operations must comply with the Electricity Reform Act (including the conditions of the licence), the Electricity Networks (Third Party Access) Act and any other Act as applied to the electricity entity.

Clause 53. Section 43 amended

This clause provides that the Utilities Commission may make a determination regulating prices and conditions relating to prices for the sale and supply of electricity to non-contestable customers or customers of a prescribed class, subject to an electricity pricing order issues by the Minister under the Electricity Reform Act and for other goods and services in the electricity supply industry specified by the Minister by notice in the Gazette.

Clause 54. Part 4, Division 6 inserted

Division 6. Network Technical code

Clause 66A. Network provider to publish Network Technical Code

Sub-clause 1 provides that this section applies in relation to an National Access Code electricity network, as defined in section 2A of the Electricity Networks (Third Party Access) Act.

Sub-clause 2 establishes that a network provider for the network must prepare and make publically available a network technical code and network planning criteria (the Network Technical Code) for the network.

Sub-clause 3 provides that the Network Technical Code must cover the requirements set out in Schedule 2 of the Electricity Reform Act.

Sub-clause 4 provides that before making or amending a Network Technical Code, a network provided must consult with the Utilities Commission and the regulator under the Electricity Networks (Third Party Access) Act, and change or amended if required by the Utilities Commission or regulator.

Sub-clause 5 provides that before amending the Network Technical Code in a material way, the network provider must make publicly available details of the proposed amendments and allow a reasonable time for persons affected to comment on the proposed amendments.

Sub-clause 6 provides that as practicable after making or amending the Network Technical Code, the network provider must give a copy of it to the Utilities Commission or regulator.

Sub-clause 7 provides that a network provider must provide a copy of the Network Technical Code to any network user or access applicant (as defined in the Network Access Code) who requests it.

Sub-clause 2 provides that an authorised officer may (but need not) be an employee within the meaning of the Public Sector Employment and Management Act.

Clause 56. Section 111 amended

Sub-clause 2 provides without limiting subsection (1), the regulations may deal with matters relating to the system control and electricity market operations.

Clause 57. Section 112 amended

This clause provides the Acts listed in Schedule 1 are repealed.

Clause 58. Part 9 inserted

Part 9. Transitional provisions for National Electricity (Northern Territory) (National Uniform Legislation) Act 2015

Clause 114. Definitions

This clause defines that in Part 9, 2015 Act means Part 5 of the National Electricity (Northern Territory) (National Uniform Legislation) Act 2015.

Clause 115. Continuation of network technical codes

Sub-clause 1 provides on 1 July 2015, an existing technical code for a network becomes a Network Technical Code in force under section 66A for that network.

Sub-clause 2 provides that in this section, existing technical code means a network technical code and network planning criteria that are in force under clause 9 of the Network Access Code immediately before 1 July 2015.


Clause 116. References to transferred provisions

Sub-clause 1 provides that a reference in an existing document to clause 9(2) to (6) of the Network Access Code includes a reference to section 66A, unless the context otherwise requires.

Sub-clause 2 provides that a reference in an existing document to a provision of Chapter 3 (other than clauses 24, 25, 31 and 34) or Chapter 9 of the Network Access Code, includes a reference to the corresponding provision of any regulations made under sections 111(2)(d), unless the contact otherwise requires.

Sub-clause 3 established that in this section, existing document means an Act or other document that was made before 1 July 2015.

This clause amends the title for Schedule 1.

Clause 60. Schedule 2 inserted

Schedule 2. Operational and technical requirement for access

Clause 1. Network Technical code

This clause sets out the requirements that must be contained within the Network Technical Code.

Clause 2. Network planning criteria

This clause sets out that the network planning criteria for a network must be consistent with the Network Technical Code for the network and what it must contain.

This clause sets out that Part 5 of the National Electricity (Northern Territory) (National Uniform Legislation) Act expires the day after it commences.

Schedule 1 Modification to National Electricity Law

Part 1 Preliminary matters

Clause 1 Law modified

This clause sets out that Schedule 1 modifies the National Electricity Law set out in the Schedule to National Electricity (South Australia) Act 1996 (SA) as mentioned in section 6(a).

Clause 2 Expiry of certain modifications

Sub-clause 1 sets out that Part 3 of this Schedule expires on 1 July 2019.

Sub-clause 2 sets out that Part 4 of this Schedule expires when the National Energy Retail Law is applied in the Northern Territory.

Sub-clause 3 sets out that this clause 2 expires on the later of the expiry of Part 3 or of Part for of the National Electricity Law.

Part 2 Continuing modifications

Clause 3 Section 2 modified
Sub-clause 1 defines the terms distribution system, interconnected national electricity system, local distribution system, local electricity system, national electricity market, network service provider, Registered participant and Territory Electricity Market.

Clause 4 Section 9 modified

This clause sets out that the National Electricity Rules, with any modification prescribed under section 13(2)(c) of the National Electricity (Northern Territory) (National Uniform Legislation) Act, have the force of law in the Northern Territory.

Clause 5 Part 2, heading modified

This clause establishes that this Part relates to participation in the Territory Electricity Market.

Clause 6 Section 11 modified

Sub-clause 1 provides for limitations placed on a person to engage in activity of owning, controlling or operating, in the Northern Territory, a generating system connected to a local distribution system.

Sub-clause 2 provides for limitations placed on a person to engage in activity of owning, controlling or operating, in the Northern Territory, a distribution system that forms part of a local distribution system.

Sub-clause 3 provides for limitations placed on a person to engage in the activity of operating or administering, in the Northern Territory, a wholesale exchange for electricity.

Sub-clause 4 provides for limitations placed on a person to engage in, in the Northern Territory, the activity of purchasing electricity directly through a wholesale exchange.

Clause 7 Section 12 modified

This clause repeals section 12 of the National Electricity Law, so that Territory electricity market participants are not required to be registered as a participant by the Australian Energy Market Operator (AEMO). This is because it is not proposed that AEMO have a role in the Territory’s electricity market at this time. Territory electricity market participants will still be required to be licenced by the Utilities Commission or similar body.

Clause 8 Section 15 modified

The amendment removes a reference to transmission system or distribution systems forming part of the interconnected transmission and distribution systems and replaces it with a reference to a distribution system forming part of a local distribution system. This is to ensure that section 15(1)(e) applies to in the Territory, given that it not technically considered part of the interconnected transmission and distribution systems that form the National Electricity Market, as it is not physically connected.

Clause 9 Section 16 modified

This amendment ensures that, for the purposes of subsection 1(a) and (d), the AER considers the Territory’s electricity systems when exercising various functions, powers and making reviewable regulatory decisions.

This is achieved by replacing references in the definition of national electricity objective to national electricity systems with references to a local electricity system or to all local electricity systems, as the case requires.

Clause 10 Part 5, Division 1AA inserted

This amendment clarifies that AEMO will not, as a result of this legislation, have a role in the Territory, nor are its functions and powers applicable in the Territory.

Clause 11 Section 49 modified

Noting that Division 1AA ensures that AEMO does not have a role in the Territory at this time, this amendment ensure that if AEMO does eventually have jurisdiction in the Territory that for the purpose of subsection (3), AEMO must consider the Territory’s electricity systems, as opposed to national electricity systems, when it has regard to the national electricity objective when carrying out functions referred to in this section.

Clause 12 Section 62 modified

This insertion is to ensure that it is clear that this subsection (b) refers to the wholesale exchange operated and administered by AEMO in the other participating jurisdictions, and not a wholesale exchange that may be being operated in the Territory.

Clause 13 Section 71P modified

This amendment ensures that, for the purposes of subsection 2(a)(c) and 2(b)(c), the Tribunal considers the Territory’s electricity systems when making a determination.

This is achieved by replacing references in the national electricity objective to national electricity systems with references to a local electricity system or to all local electricity systems, as the case requires.

Clause 14 Section 87 modified

This insertion is to ensure that it is clear that this subsection (a) refers to the wholesale exchange operated and administered by AEMO in the other participating jurisdictions, and not a wholesale exchange that may be being operated in the Territory.

Clause 15 Section 108B inserted

This insertion is to ensure that Part 8 – Safety and Security of the National Electricity System has no effect in the Territory. This is because it is not feasible to adopt this part given that the Territory is not physically connected to the other electricity systems that comprise the National Electricity Market. The safety and security of the Territory’s electricity system will continue to be governed by existing Territory codes.

Clause 16 Section 118B modified

This amendment ensures that, for the purposes of subsection 2(a), the Minister considers the Territory’s electricity systems when making a pilot metering determination.

This is achieved by replacing references in the national electricity objective to national electricity systems with references to a local electricity system or to all local electricity systems, as the case requires.

Clause 17 Schedule 1 modified

This insertion is to ensure that it is clear that items 4,7,9 and 34(a) refers to the wholesale exchange operated and administered by AEMO in the other participating jurisdictions, and not a wholesale exchange that may be being operated in the Territory.

Clause 18 Schedule 3, Part 1AA inserted

This insertion ensures that Parts 1 to 11 have no effect in the Territory. This is because these parts are not applicable in the Territory as they are savings and transitional arrangements arising from the old National Electricity Law and Code.

Part 3 Modifications expiring on 1 July 2019

Part 3 sets out modifications that will apply to the National Electricity Law up until 1 July 2019.

Clause 19 Section 2 modified

This clause sets out a modified definition for “regulated distribution system operator” that will apply during the period up until 1 July 2019.

Clause 20 Part 2, Division 1AA inserted

This insertion ensures that this part has no effect in the Territory until 1 July 2019. This is because participants in the Territory’s electricity system will be required to be licenced by the Utilities Commission or a similar body until 1 July 2019.

Clause 21 Section 15 modified

This insertion ensures that the AER cannot make a network revenue or pricing determination that applies to electricity network services provided in the Territory for a regulatory control period that begins before 1 July 2019. This is because the AER will administer the Territory’s electricity network service provider’s, the Power and Water Corporation, existing 2014-2019 Network Price Determination, made under the Territory’s Electricity Networks (Third Party Access) Act, which expires on 30 June 2019.

Clause 22 Part 8A, Division 1AA inserted

This insertion ensures that this part, in relation to smart metering, is not applicable in the Territory until 1 July 2019.

Clause 23 Section 124A inserted

This insertion ensures that this part is not applicable in the Territory until 1 July 2019. This is because access arrangements until that time will be captured under the Territory’s Electricity Networks (Third Party Access) Act.

Part 4 Modifications expiring on adoption of National Energy Retail Law

Clause 24 Section 2 modified

This modification amends the definition of end user to remove references to including a retail customer. This is in order to defer amendments to the National Electricity Law arising from the National Energy Retail Law, until such time as the Territory decides to adopt the National Energy Retail Law.

Clause 25 Section 2A modified

This modification amends the definition of access dispute to remove references to disputes between a retail customer and a regulated distribution system operator. This is in order to defer amendments to the National Electricity Law arising from the National Energy Retail Law, until such time as the Territory decides to adopt the National Energy Retail Law.

Clause 26 Section 2D modified

This modification removes references to the National Energy Retail Law or the National Energy Retail Rules. This is in order to defer amendments to the National Electricity Law arising from the National Energy Retail Law, until such time as the Territory decides to adopt the National Energy Retail Law.

Clause 27 Section 6A modified

This modification repeals section 6A. This is in order to defer amendments to the National Electricity Law arising from the National Energy Retail Law, until such time as the Territory decides to adopt the National Energy Retail Law.

Clause 28 Section 28V modified

This modification repeals section 28V(4A). This is in order to defer amendments to the National Electricity Law arising from the National Energy Retail Law, until such time as the Territory decides to adopt the National Energy Retail Law.

Clause 29 Section 28ZD modified

This amendment modifies section 28ZD(b) and omits section 28ZD(c) to remove references to the National Energy Retail Law or the National Energy Retail Rules. This is in order to defer amendments to the National Electricity Law arising from the National Energy Retail Law, until such time as the Territory decides to adopt the National Energy Retail Law.

Clause 30 Section 28ZH modified

This amendment modifies section 28ZH(1)(c), (d) and the note to section 28ZH to remove references to the National Energy Retail Law or the National Energy Retail Rules. This is in order to defer amendments to the National Electricity Law arising from the National Energy Retail Law, until such time as the Territory decides to adopt the National Energy Retail Law.

Clause 31 Section 28ZI modified

This amendment modifies section 28ZI(b), (c) and (d) to remove references to the National Energy Retail Law or the National Energy Retail Rules. This is in order to defer amendments to the National Electricity Law arising from the National Energy Retail Law, until such time as the Territory decides to adopt the National Energy Retail Law.

Clause 32 Section 54C modified

This modification omits section 54C(2)(f). This is in order to defer amendments to the National Electricity Law arising from the National Energy Retail Law, until such time as the Territory decides to adopt the National Energy Retail Law.

Clause 33 Section 120 modified

This modification omits section 120(2A). This is in order to defer amendments to the National Electricity Law arising from the National Energy Retail Law, until such time as the Territory decides to adopt the National Energy Retail Law.

Schedule 2 Local distribution systems

This schedule sets out, for the purpose of the definition of local distribution system in the National Electricity Law, the distribution systems in the Territory are considered to be local distribution systems. This is as per Division 2, clause 9.

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