South Australian Bills South Australian Bills[Index] [Search] [Download] [Help]
This is a Bill, not an Act. For current law, see the Acts databases.
South Australia
National Electricity (South Australia) (Australian Energy
Regulator—Wholesale Market Monitoring) Amendment
Bill 2016
A BILL FOR
An Act to amend the
National
Electricity (South Australia) Act 1996
.
Contents
Part 2—Amendment
of National Electricity Law
4Amendment of section
2—Definitions
5Amendment of section 15—Functions and
powers of AER
6Insertion of Part 3 Division 1A
Division 1A—Wholesale electricity
markets—AER monitoring and reporting functions
18BMeaning of effective
competition
18CAER wholesale market monitoring
and reporting functions
18DProvision, use and disclosure of
information
7Amendment of Schedule 3—Savings and
transitionals
Part 13—Transitional provision related
to AER wholesale market reporting functions
26Transitional
provision related to AER wholesale market reporting functions
The Parliament of South Australia enacts as
follows:
This Act may be cited as the National Electricity (South Australia)
(Australian Energy Regulator—Wholesale Market Monitoring) Amendment
Act 2016.
(1) This Act will come into operation on a day to be fixed by
proclamation.
(2) Section 7(5) of the
Acts
Interpretation Act 1915
does not apply to this Act or a provision of this Act.
In this Act, a provision in
Part 2
amends the National Electricity Law set out in the Schedule to the
National
Electricity (South Australia) Act 1996
.
Part 2—Amendment
of National Electricity
Law
4—Amendment
of section 2—Definitions
(1) Section 2(1)—after the definition of AER economic
regulatory function or power insert:
AER wholesale market monitoring functions—the AER
wholesale market monitoring functions are as set out in section
18C(1);
AER wholesale market reporting functions—the AER
wholesale market reporting functions are as set out in section 18C(2);
(2) Section 2(1)—after the definition of VENCorp
insert:
wholesale electricity market means any wholesale market for
electricity regulated under this Law and the Rules.
5—Amendment
of section 15—Functions and powers of AER
Section 15(1)—after paragraph (eb) insert:
(ec) AER wholesale market monitoring functions and AER wholesale market
reporting functions; and
6—Insertion
of Part 3 Division 1A
After Part 3 Division 1 insert:
Division 1A—Wholesale electricity markets—AER
monitoring and reporting functions
18A—Definitions
(1) In this Division—
confidential supplier information means information obtained
from a wholesale electricity supplier by the AER under
section 18D(1)(b)
that is taken to be confidential information under
section 18D(2)
;
effective competition has the meaning given by
section 18B
;
wholesale electricity supplier means a Registered Participant
who supplies electricity or services through the wholesale exchange operated and
administered by AEMO under this Law and the Rules.
18B—Meaning of effective
competition
For the purposes of this Division, the AER must, in assessing whether there
is effective competition within a wholesale electricity market,
have regard to—
(a) whether there are active competitors in the market and whether those
competitors hold a reasonably sustainable position in the market (or whether
there is merely the threat of competition in the market); and
(b) whether prices are determined on a long term basis by underlying costs
rather than the existence of market power, even though a particular competitor
may hold a substantial degree of market power from time to time; and
(c) whether barriers to entry into the market are sufficiently low so that
a substantial degree of market power may only be held by a particular competitor
on a temporary basis; and
(d) whether there is independent rivalry in all dimensions of the price,
product or service offered in the market; and
(e) any other matters that the AER considers relevant.
18C—AER wholesale market monitoring and reporting
functions
(1) The AER wholesale
market monitoring functions are as follows:
(a) to monitor and
review on a regular and systematic basis the performance of wholesale
electricity markets in accordance with this Law and the Rules;
(b) in connection with
paragraph (a)
, to identify and analyse whether, in relation to a particular wholesale
electricity market—
(i) there is effective competition within the market; and
(ii) there are features of the market that may be detrimental to effective
competition within the market; and
(iii) there are features of the market that may be impacting detrimentally
on the efficient functioning of the market (and, if so, to assess the extent of
the inefficiency);
(c) other monitoring or analysing functions that relate to offers and
prices (including forecast prices, actual prices and bidding) within any
wholesale electricity market conferred on the AER by the Rules.
(2) The AER wholesale
market reporting functions are as follows:
(a) to prepare, at
least once every 2 years, a report on the results of the performance of the AER
wholesale market monitoring functions;
(b) to provide, as the
AER thinks fit, advice on the results of the performance of the AER wholesale
market monitoring functions to the MCE, including advice as to—
(i) the AER's opinion
(and reasons for the opinion) on whether those results identify, in relation to
a wholesale electricity market monitored, features of the market (whether
systemic or otherwise) that—
(A) may be detrimental to effective competition within the market;
or
(B) may be impacting detrimentally on the efficient functioning of the
market,
such that a legislative, regulatory or other response is required;
and
(ii) any limitations that the AER considers may restrict its ability to
communicate with relevant persons about the results of the performance of the
AER wholesale market monitoring functions;
(c) other reporting requirements that relate to the AER wholesale market
monitoring functions conferred on the AER by the Rules.
(3) A report prepared
under
subsection (2)(a)
must, in relation to a wholesale electricity market monitored during the
period to which the report relates (which must be a period of at least 5 years),
contain a discussion and analysis of—
(a) the results of the performance of the AER wholesale market monitoring
functions for the relevant period; and
(b) features of the market that impact detrimentally on the efficient
functioning of the market and the achievement of the national electricity
objective, including (but not limited to)—
(i) the presence of significant barriers to entry; or
(ii) any other features of the industry structure that give rise to
concerns that there may not be effective competition within the market;
and
(c) inefficiencies in the market, their causes and whether conditions in
the market are such that the inefficiencies are likely to impact detrimentally
in the long term on the efficient functioning of the market; and
(d) the monitoring methodology applied and the results of indicators,
tests and calculations performed; and
(e) other matters of a long term nature relevant to effective competition
within the market, including, for example, observations relating to planned
increases in interconnector capacity and trends in demand for electricity and in
the uptake of alternative sources of energy.
(4) The AER must publish a report prepared under
subsection (2)(a)
on its website.
18D—Provision, use and disclosure of
information
(1) The following
provisions apply to the performance of the AER wholesale market monitoring
functions:
(a) the AER must, in
performing the AER wholesale market monitoring functions in relation to a
wholesale electricity market, use publicly available information to identify any
relevant matter referred to in
section 18C(1)
;
(b) if the AER has, in
accordance with
paragraph (a)
, identified any such relevant matter, the AER may, in accordance with its
powers under this Part, obtain information from a wholesale electricity
supplier—
(i) to assist it in determining whether—
(A) there is effective competition within the market; and
(B) there are features of the market that may be detrimental to effective
competition within the market; and
(C) there are features of the market that may be impacting detrimentally
on the efficient functioning of the market (and, if so, to assess the extent of
the inefficiency); and
(ii) if there is an inefficiency identified, to analyse if the
inefficiency gives rise to competition in the market that is not effective
competition (or, in relation to an inefficiency identified by the AER but that
is no longer present in the market, if the inefficiency gave rise to competition
in the market that was not effective competition).
(2) Information
obtained under
subsection (1)(b)
is taken to have been given to the AER in confidence (whether or not an
express claim of confidentiality is made when the information is
given).
(3) Despite anything to the contrary in this Part, the AER must not use
confidential supplier information for any purpose other than the performance of
the AER wholesale market monitoring functions or the AER wholesale market
reporting functions.
(4) Despite anything to
the contrary in this Part, the AER must not disclose confidential supplier
information unless—
(a) the disclosure is for the purposes of the AER wholesale market
monitoring functions or the AER wholesale market reporting functions;
and
(b) the confidential supplier information has been combined or arranged
with other information so that it does not reveal any confidential aspects of
the confidential supplier information or identify the wholesale electricity
supplier to whom the information relates.
(5) A requirement to disclose information at common law, including under
the rules of natural justice, to the extent that the information is confidential
supplier information, is limited to the disclosure of such information in
accordance with
subsection (4)
(and the common law, including the rules of natural justice, are modified
by force of this subsection so as to accord with
subsection (4)
).
(6) If the AER exercises its powers under this Part to obtain information
contained in a document for the purposes of
subsection (1)(b)
, the AER must return the document to the person from whom it was
obtained—
(a) within 12 months of
obtaining the document; or
(b) if it is not
reasonably practicable to return the document within the 12 month period
referred to in
paragraph (a)
, as soon as is reasonably practicable to do so after the expiry of that 12
month period.
18E—Immunity from liability
(1) Despite any Act or law to the contrary, no liability for breach of
confidence attaches to a designated entity with respect to the disclosure of
confidential supplier information by any designated entity if the designated
entity who made the disclosure reasonably believed—
(a) that the information was not confidential supplier information;
or
(b) that the information disclosed did not reveal any confidential aspects
of the information or would not identify the wholesale electricity supplier to
whom the information relates.
(2) In this section—
designated entity means—
(a) the AER; or
(b) a member of the AER; or
(c) a person assisting the AER to perform its functions (or in the
exercise of its powers) under this Division.
7—Amendment
of Schedule 3—Savings and transitionals
Schedule 3—after Part 12 insert:
Part 13—Transitional provision related to AER
wholesale market reporting functions
26—Transitional provision related to AER wholesale
market reporting functions
(1) Despite section 18C(3)—
(a) the first report prepared under section 18C(2)(a) must relate to the
period of 2 years after the relevant day; and
(b) the second report prepared under section 18C(2)(a) must relate to the
period of 4 years after the relevant day.
(2) In this clause—
relevant day means the day on which this clause comes into
operation.