[Index] [Search] [Download] [Help]
This is a Bill, not an Act. For current law, see the Acts databases.
House of
Assembly—No 76
As laid on the
table and read a first time, 9 February 2005
South Australia
National Electricity (South Australia)
(New National Electricity Law) Amendment Bill 2005
A Bill For
An Act to amend the National
Electricity (South Australia) Act 1996.
Contents
Part 1—Preliminary
1 Short
title
2 Commencement
3 Exercise
of rule-making power under new National Electricity Law following assent
4 Amendment
provisions
Part 2—Amendment of National Electricity (South Australia) Act 1996
5 Repeal
of Preamble
6 Amendment
of section 8—Interpretation of some expressions in National Electricity (South
Australia) Law and National Electricity (South Australia) Regulations
7 Repeal
of Part 3
8 Amendment
of heading to Part 4
9 Amendment
of section 11—General regulation-making power for National Electricity Law
10 Substitution
of sections 12 and 13
12 Specific
regulation-making power
13 Making
of rules
11 Amendment
of section 14—Freedom of information
12 Substitution
of Schedule
Schedule—National Electricity Law
Part
1—Preliminary
1 Citation
2 Definitions
3 Interpretation
generally
4 Savings
and transitionals
5 Participating
jurisdictions
6 Ministers
of participating jurisdictions
7 National
electricity market objective
8 MCE
statements of policy principles
9 National
Electricity Rules to have force of law
10 Application
of this Law and Regulations to coastal waters of this jurisdiction
Part
2—Participation in the National Electricity Market
11 Registration
required to undertake certain activities in the national electricity market
12 Registration
or exemption of persons participating in the national electricity market
13 Exemptions
for transmission system or distribution system owners, controllers and
operators
14 Evidence
as to Registered participants and exemptions
Part
3—Functions and powers of the Australian Energy Regulator
Division 1—General
15 Functions
and powers of the AER
16 Manner
in which AER must perform or exercise AER economic regulatory functions or
powers
17 Delegations
18 Confidentiality
Division 2—Investigation powers
19 Definitions
20 Authorised
person
21 Search
warrant
22 Announcement
before entry
23 Details
of warrant to be given to occupier
24 Copies
of seized documents
25 Retention
and return of seized documents or things
26 Period
for retention of documents or things seized may be extended
27 Obstruction
of persons authorised to enter
28 Power
to obtain information and documents in relation to performance and exercise of
functions and powers
Part
4—Functions and powers of the Australian Energy Market Commission
Division 1—General
29 Functions
and powers of the AEMC
30 Delegations
31 Confidentiality
32 AEMC
must have regard to national electricity market objective
33 AEMC
must have regard to MCE statements of policy principles in relation to Rule
making and reviews
Division 2—Rule making functions and powers of the AEMC
34 Subject
matter for National Electricity Rules
35 Rules
in relation to economic regulation of transmission systems
36 National
Electricity Rules to always provide for certain matters relating to transmission
systems
37 Documents
etc applied, adopted and incorporated by Rules to be publicly available
Division 3—Committees, panels and working groups of the AEMC
38 The
Reliability Panel
39 Establishment
of committees and panels (other than the Reliability Panel) and working groups
Division 4—MCE directed reviews
40 Definition
41 MCE
directions
42 Terms
of reference
43 Notice
of MCE directed review
44 Conduct
of MCE directed review
Division 5—Other reviews
45 Reviews
by the AEMC
Division 6—Miscellaneous
46 AEMC
must publish and make available up to date versions of the National Electricity
Rules
47 Fees
for services provided
48 Confidentiality
of information received for the purposes of a review
Part 5—Role
of NEMMCO under the National Electricity Law
Division 1—Conferral of certain functions
49 Functions
of NEMMCO in respect of national electricity market
50 Operation
and administration of national electricity market
51 NEMMCO
not to be taken to be engaged in the activity of controlling or operating a generating,
transmission or distribution system
52 Delegation
Division 2—Statutory funds of NEMMCO
53 Definitions
54 Rule
funds of NEMMCO
55 Payments
into Rule funds
56 Investment
57 NEMMCO
not trustee
Part
6—Proceedings under the National Electricity Law
Division 1—General
58 Definitions
59 Instituting
civil proceedings under this Law
Division 2—Proceedings by the AER in respect of this Law, the
Regulations and the Rules
60 Time
limit within which AER may institute proceedings
61 Proceedings
for breaches of a provision of this Law, the Regulations or the Rules that are
not offences
62 Additional
Court orders for Registered participants in breach
63 Orders
for disconnection in certain circumstances where there is no breach
64 Matters
for which there must be regard in determining amount of civil penalty
65 Breach
of a civil penalty provision is not an offence
66 Breaches
of civil penalty provisions involving continuing failure
67 Conduct
in breach of more than one civil penalty provision
68 Persons
involved in breach of civil penalty provision
69 Civil
penalties payable to the Commonwealth
Division 3—Judicial review of decisions and determinations under this
Law, the Regulations and the Rules
70 Applications
for judicial review
71 Appeals
on questions of law from decisions or determinations of Dispute resolution
panels
Division 4—Other civil proceedings
72 Obligations
under Rules to make payments
Division 5—Infringement notices
73 Definition
74 Power
to serve a notice
75 Form
of notice
76 Infringement
penalty
77 AER
cannot institute proceedings while infringement notice on foot
78 Late
payment of penalty
79 Withdrawal
of notice
80 Refund
of infringement penalty
81 Payment
expiates breach of relevant civil penalty provision
82 Payment
not to have certain consequences
83 Conduct
in breach of more than one civil penalty provision
Division 6—Miscellaneous
84 AER
to inform certain persons of decisions not to investigate breaches, institute
proceedings or serve infringement notices
85 Offences
and breaches by corporations
86 Proceedings
for breaches of certain provisions in relation to actions of officers and
employees of relevant participants
Part 7—The
making of the National Electricity Rules
Division 1—General
87 Definitions
88 Rule
making test to be applied by AEMC
89 AEMC
must have regard to certain matters in relation to the making of jurisdictional
derogations
Division 2—Initial National Electricity Rules
90 South
Australian Minister to make initial National Electricity Rules
Division 3—Procedure for the making of a Rule by the AEMC
91 Initiation
of making of a Rule
92 Content
of requests for a Rule
93 More
than one request in relation to same or related subject matter
94 Initial
consideration of request for Rule
95 Notice
of proposed Rule
96 Non-controversial
and urgent Rules
97 Right
to make written submissions and comments
98 AEMC
may hold public hearings before draft Rule determination
99 Draft
Rule determination
100 Right
to make written submissions and comments in relation to draft Rule
determination
101 Pre-final
Rule determination hearing may be held
102 Final
Rule determination as to whether to make a Rule
103 Making
of Rule
104 Operation
and commencement of Rule
105 Rule
that is made to be published on website and made available to the public
106 Evidence
of the National Electricity Rules
Division 4—Miscellaneous provisions relating to Rule making by the AEMC
107 AEMC
may extend certain periods of time specified in Division 3
108 AEMC
may publish written submissions and comments unless confidential
Part
8—Safety and security of the National Electricity System
109 Definitions
110 Appointment
of jurisdictional system security coordinator
111 Jurisdictional
system security coordinator to prepare jurisdictional load shedding guidelines
112 NEMMCO
to develop load shedding procedures for each participating jurisdiction
113 NEMMCO
and jurisdictional system security coordinator to exchange load shedding
information in certain circumstances
114 NEMMCO
to ensure that the national electricity system is operated in manner that
maintains the supply to sensitive loads
115 Shedding
and restoring of loads
116 Actions
that may be taken to ensure safety and security of national electricity system
117 NEMMCO
to liaise with Minister of this jurisdiction and others during an emergency
118 Obstruction
of persons exercising certain powers in relation to the safety and security of
the national electricity system.
Part
9—Immunities
119 Immunity
of NEMMCO and network service providers
120 Immunity
in relation to failure to supply electricity
121 Immunity from personal liability of
AEMC officials
Schedule
1—Subject matter for the National Electricity Rules
Schedule 2—Miscellaneous
provisions relating to interpretation
Schedule 3—Savings and
transitionals
The
Parliament of South Australia enacts as follows:
This Act may be
cited as the National Electricity (South Australia) (New National
Electricity Law) Amendment Act 2005.
(1) This Act (other than this Part) will come
into operation on a day to be fixed by proclamation.
(2) This Part will come into operation on the
day on which this Act is assented to by the Governor.
(3) Section 7(5) of the Acts Interpretation
Act 1915 does not apply to this Act or a provision of this Act.
3—Exercise of rule-making power under new National Electricity Law following assent
(1) The Minister may exercise the power to make
Rules under section 90 of the new National Electricity Law before the
commencement of section 12 of this Act, but Rules so made will not take
effect until that commencement or a later day specified in the notice published
under that section.
(2) In
this section—
new National
Electricity Law means the National Electricity Law
comprised in the Schedule as set out in section 12 of this Act and under
that section to be substituted for the Schedule to the National Electricity
(South Australia) Act 1996.
In this Act, a
provision under a heading referring to the amendment of a specified Act amends
the Act so specified.
Part 2—Amendment
of National Electricity (South Australia) Act 1996
Preamble—delete
the Preamble
6—Amendment of section 8—Interpretation of some expressions in National Electricity (South Australia) Law and National Electricity (South Australia) Regulations
Section
8—after its present contents (now to be designated as subsection (1)) insert:
(2) The Acts Interpretation Act 1915
does not apply to the National Electricity (South Australia) Law or the
National Electricity (South Australia) Regulations.
Part 3—delete the
Part
8—Amendment of heading to Part 4
Heading
to Part 4—delete "Power to make regulations" and substitute:
Making of
regulations and rules
9—Amendment of section 11—General regulation-making power for National Electricity Law
Section
11(1), (2), (3) and (4)—delete subsections (1), (2), (3) and (4) and
substitute:
(1) The Governor may make such regulations as
are contemplated by, or necessary or expedient for the purposes of, the
National Electricity Law.
(2) Regulations
under this Part may—
(a) be of general or limited application;
(b) vary according to the persons, times,
places or circumstances to which they are expressed to apply.
(3) Regulations under this Part may be made
only on the unanimous recommendation of the Ministers of the participating
jurisdictions.
10—Substitution of sections 12 and 13
Sections
12 and 13—delete the sections and substitute:
12—Specific regulation-making power
(1) Without limiting the generality of section
11, the regulations may deal with matters of a transitional nature relating to
the transition from the application of provisions of the old National
Electricity Law to the application of provisions of the new National
Electricity Law.
(2) Any provision of the regulations that deals
with a matter of a transitional nature under subsection (1) may be
expressed to take effect from a time that is earlier than the beginning of the
day on which the regulations containing the provision are made, not being a
time earlier than the commencement of this subsection.
(3) If
a provision of a regulation is expressed to take effect from a time that is earlier
than the beginning of the day on which the regulations containing the provision
are made, the provision must also provide that the provision does not operate
so as—
(a) to prejudicially affect the rights of a
person (other than a participating jurisdiction or NECA, NEMMCO, the AEMC or
the AER) existing before the date of making of those regulations; or
(b) to impose liabilities on any person (other
than a participating jurisdiction or NECA, NEMMCO, the AEMC or the AER) in
respect of anything done or omitted to be done before the date of making of
those regulations.
(4) In
this section—
matters of a
transitional nature includes matters of an application or
savings nature;
NECA means
National Electricity Code Administrator Limited ACN 073 942 775;
new National
Electricity Law means the National Electricity Law set
out in the Schedule to this Act as in force from time to time after the
commencement of this subsection, or the Rules as in force from time to time
after the commencement of this subsection;
old National
Electricity Law means the National Electricity Law set
out in the Schedule to this Act as in force from time to time before the
commencement of this subsection, or the Code as defined by that Law and in
force from time to time before the commencement of this subsection.
13—Making of rules
The Subordinate
Legislation Act 1978 does not apply to Rules made under the National
Electricity Law.
11—Amendment of section 14—Freedom of information
(1) Section 14(a)—delete paragraph (a)
(2) Section
14(c)—delete paragraph (c) and substitute:
(c) an agent of NEMMCO with respect to
functions performed under the Rules.
Schedule—delete
the Schedule and substitute:
Schedule—National Electricity Law
Part 1—Preliminary
1—Citation
This Law may be
referred to as the National Electricity Law.
2—Definitions
In this
Law—
AEMC initiated
Rule means a Rule of the kind referred to in
section 91(2);
AER economic
regulatory function or power means a function or power
performed or exercised by the AER under this Law or the Rules that relates to
the economic regulation of services provided by a regulated transmission system
operator by means of, or in connection with, a transmission system and includes
a function or power performed or exercised by the AER under the Rules that
relates to the making of a transmission determination;
Australian Energy
Market Commission or AEMC means the
Australian Energy Market Commission established by section 5 of the Australian
Energy Market Commission Establishment Act 2004 of South Australia;
Australian Energy
Regulator or AER means the Australian Energy
Regulator established by section 44AE of the Trade Practices Act 1974 of
the Commonwealth;
Court means—
(a) where this Law applies as a law of the
Commonwealth, the Federal Court;
(b) where this Law applies as a law of a
participating jurisdiction that is a State or a Territory, the Supreme Court of
that jurisdiction;
derogation means
a jurisdictional derogation or participant derogation;
draft Rule
determination means a determination of the AEMC under
section 99;
electricity
services means services that are necessary or incidental to
the supply of electricity to consumers of electricity, including—
(a) the generation of electricity;
(b) services provided by means of, or in
connection with, a transmission system or distribution system;
(c) the sale of electricity;
Federal Court means
the Federal Court of Australia;
final Rule
determination means a determination of the AEMC under
section 102;
initial National
Electricity Rules means the National Electricity Rules made
under section 90;
jurisdictional
derogation means a Rule made at the request of a Minister of a
participating jurisdiction that—
(a) exempts, in a specified case or class of
cases, a person or a body performing or exercising a function or power, or
conferred a right, or on whom an obligation is imposed, under the Rules
(including a Registered participant), or a class of such a person or body, or
NEMMCO, from complying with a provision, or a part of a provision, of the Rules
in the participating jurisdiction to which the derogation relates; or
(b) modifies or varies the application of a
provision of the Rules (with or without substitution of a provision of the
Rules or a part of a provision of the Rules) to a person or a body performing
or exercising a function or power, or conferred a right, or on whom an
obligation is imposed, under the Rules (including a Registered participant), or
a class of such a person or body, or NEMMCO, in the participating jurisdiction
to which the derogation relates;
jurisdictional
electricity legislation means any legislation of a participating
jurisdiction (other than national electricity legislation), or any instrument
made or issued under or for the purposes of that legislation, that regulates
the electricity industry operating in that jurisdiction;
jurisdictional
regulator means—
(a) if this Law is applied as a law of the
State of New South Wales, the Independent Pricing and Regulatory Tribunal of
New South Wales established by section 5(1) of the Independent Pricing and
Regulatory Tribunal Act 1992 of New South Wales;
(b) if this Law is applied as a law of the
State of Victoria, the Essential Services Commission established by section
7(1) of the Essential Services Commission Act 2001 of Victoria;
(c) if this Law is applied as a law of the
State of Queensland, the Queensland Competition Authority established by
section 7 of the Queensland Competition Authority Act 1997 of
Queensland;
(d) if this Law is applied as a law of the
State of South Australia, the Essential Services Commission established by
section 4(1) of the Essential Services Commission Act 2002 of South
Australia;
(e) if this Law is applied as a law of the
Australian Capital Territory, the Independent Competition and Regulatory
Commission for the Australian Capital Territory established by section 5(1) of
the Independent Competition and Regulatory Commission Act 1997 of the
Australian Capital Territory;
(f) if a person or body referred to in
paragraphs (a) to (e) is abolished under an Act of a participating jurisdiction
and another person or body is established under an Act of that participating
jurisdiction with functions and powers that correspond to the functions and
powers of the person or body referred to in paragraphs (a) to (e), that other
person or body;
(g) if the functions and powers of a person or
body referred to in paragraphs (a) to (e) are transferred to another person or
body established under an Act of the relevant participating jurisdiction, that
other person or body;
(h) any other person or body established under
an Act of a participating jurisdiction that is prescribed by the Regulations as
a jurisdictional regulator of that jurisdiction;
jurisdictional
system security coordinator means a person appointed under
section 110;
MCE means
the Ministerial Council on Energy established on 8 June 2001, being the Council
of Ministers with primary carriage of energy matters at national level
comprising the Ministers representing the Commonwealth, the States, the
Australian Capital Territory and the Northern Territory, acting in accordance
with its own procedures;
MCE statement of
policy principles means a statement of policy principles
issued by the MCE under section 8;
Minister of a
participating jurisdiction means a Minister who is a Minister
of a participating jurisdiction within the meaning of section 6;
National
Electricity Code means the code of conduct called the
National Electricity Code approved, in accordance with section 6(1) of the old
National Electricity Law, as the initial Code for the purposes of that Law, and
as amended from time to time in accordance with its terms and the old National
Electricity Law;
national
electricity legislation means—
(a) the National Electricity (South
Australia) Act 1996 of South Australia and Regulations in force under
that Act; and
(b) the National Electricity (South
Australia) Law; and
(c) an Act of a participating jurisdiction
(other than South Australia) that applies, as a law of that jurisdiction, any
part of—
(i) the Regulations referred to in paragraph
(a); or
(ii) the National Electricity Law set out in the
Schedule to the Act referred to in paragraph (a); and
(d) the National Electricity Law set out in the
Schedule to the Act referred to in paragraph (a) as applied as a law of a
participating jurisdiction (other than South Australia); and
(e) the Regulations referred to in paragraph
(a) as applied as a law of a participating jurisdiction (other than South
Australia);
national
electricity market means—
(a) the wholesale exchange operated and
administered by NEMMCO under this Law and the Rules; and
(b) the national electricity system;
national
electricity market objective means the objective set out in
section 7;
National
Electricity Rules or Rules means—
(a) the initial National Electricity Rules; and
(b) Rules made by the AEMC under this Law,
including Rules that amend or revoke—
(i) the initial National Electricity Rules; or
(ii) Rules made by it;
national
electricity system means—
(a) the generating systems and other facilities
owned, controlled or operated in the participating jurisdictions connected to
the interconnected transmission and distribution system referred to in
paragraph (b); and
(b) the interconnected transmission and
distribution system in the participating jurisdictions used to convey and
control the conveyance of electricity to which are connected—
(i) generating systems and other facilities;
and
(ii) loads settled through the wholesale exchange
operated and administered by NEMMCO under this Law and the Rules;
NEMMCO means
National Electricity Market Management Company Limited ACN 072 010 327;
offence provision means
a provision of this Law the breach or contravention of which exposes a person
to a criminal penalty;
old National
Electricity Law means the National Electricity Law set
out in the Schedule to the National Electricity (South Australia)
Act 1996 of South Australia as in force from time to time before the
commencement of section 12 of the National Electricity (South Australia)
(New National Electricity Law) Amendment Act 2005 of South Australia;
participant
derogation means a Rule made at the request of a person who is
conferred a right, or on whom an obligation is imposed, under the Rules
(including a Registered participant), or NEMMCO, that—
(a) exempts, in a specified case or class of
cases, that person or a class of person of which that person is a member, or
NEMMCO, from complying with a provision, or a part of a provision, of the
Rules, including a jurisdictional derogation; or
(b) modifies or varies the application of a
provision of the Rules, including a jurisdictional derogation, (with or without
substitution of a provision of the Rules or a part of a provision of the Rules)
to that person or class of person of which that person is a member, or NEMMCO;
participating
jurisdiction means a jurisdiction that is a participating
jurisdiction within the meaning of section 5;
power system
security means the safe scheduling and dispatch, and operation
and control, of the national electricity system;
Registered
participant means a person who is registered as such by NEMMCO
under this Law and the Rules or is registered as such by NEMMCO otherwise in accordance
with the Rules;
regulated
transmission system operator means an owner, controller or
operator of a transmission system—
(a) who is a Registered participant; and
(b) whose revenue or prices are regulated under
a transmission determination;
Regulations means
the regulations made under Part 4 of the National Electricity (South
Australia) Act 1996 of South Australia that apply as a law of this
jurisdiction;
regulatory
obligation means, in relation to the provision by a regulated
transmission system operator of services that are the subject of a transmission
determination—
(a) a transmission reliability standard;
(b) a transmission service standard;
(c) legislation of a participating jurisdiction
or any instrument made or issued under or for the purposes of that legislation
that levies or imposes a tax that is payable by a regulated transmission system
operator;
(d) legislation of a participating jurisdiction
or any instrument made or issued under or for the purposes of that legislation
that regulates the use of land in a participating jurisdiction by a regulated
transmission system operator;
(e) legislation of a participating jurisdiction
or any instrument made or issued under or for the purposes of that legislation
that relates to the protection of the environment;
(f) legislation of a participating jurisdiction
or any instrument made or issued under or for the purposes of that legislation
(other than national electricity legislation or legislation or an instrument
referred to in paragraphs (c) to (e)) that materially affects the provision, by
a regulated transmission system operator, of services that are the subject of a
transmission determination,
but does not
include a penalty paid or to be paid under legislation or an instrument
referred to in paragraphs (c) to (f);
relevant court means
any court of this jurisdiction;
relevant
participant means—
(a) a Registered participant; or
(b) NEMMCO; or
(c) a person engaging in an activity in breach
of section 11(1), (2), (3) or (4); or
(d) a person prescribed by the Regulations to
be a relevant participant,
but does not
include a Registered participant that is prescribed by the Regulations not to
be a relevant participant;
Reliability Panel means
the panel of persons established by the AEMC under section 38;
transmission
determination means a determination of the AER under
the Rules that regulates—
(a) the revenue an owner, controller or
operator of a transmission system earns or may earn from the provision by that
owner, controller or operator of services that are the subject of economic
regulation under the Rules; or
(b) the prices an owner, controller or operator
of a transmission system charges, or may charge for services provided by that
owner, controller or operator that are the subject of economic regulation under
the Rules;
transmission
reliability standard means a standard imposed by or under the
Rules or jurisdictional electricity legislation relating to the reliability or
performance of a transmission system;
transmission
service standard means a standard relating to the standard
of services provided by a regulated transmission system operator by means of,
or in connection with, a transmission system imposed—
(a) by or under jurisdictional electricity
legislation; or
(b) by the AER in accordance with the Rules.
3—Interpretation generally
Schedule 2 to this
Law applies to this Law, the Regulations and the Rules and any other statutory
instrument made under this Law.
4—Savings and transitionals
Schedule 3 to this
Law has effect.
5—Participating jurisdictions
(1) The
following jurisdictions are participating jurisdictions for the purposes of
this Law—
(a) the State of South Australia; and
(b) the Commonwealth, a Territory or a State
(other than South Australia) if there is in force, as part of the law of that
jurisdiction, a law that corresponds to Part 2 of the National Electricity
(South Australia) Act 1996 of South Australia.
(2) If a law of a participating jurisdiction
referred to in subsection (1)(b) that corresponds to Part 2 of the National
Electricity (South Australia) Act 1996 of South Australia ceases to be
in force, the jurisdiction ceases to be a participating jurisdiction.
(3) If, at any time, all participating
jurisdictions agree that a specified jurisdiction will cease to be a
participating jurisdiction on a specified date, the jurisdiction ceases to be a
participating jurisdiction on that date.
(4) A notice must be published in the South
Australian Government Gazette of the date on which a jurisdiction ceases to be
a participating jurisdiction under subsection (2) or (3).
(5) If the legislature of a participating
jurisdiction enacts a law that, in the unanimous opinion of the Ministers of
the other participating jurisdictions, is inconsistent with this Law, those
other participating jurisdictions may give notice to the Minister of the
first-mentioned participating jurisdiction to the effect that, if the
inconsistent law remains in force as an inconsistent law for more than 6 months
after the notice is given, the other participating jurisdictions may declare
that the jurisdiction has ceased to be a participating jurisdiction.
(6) A jurisdiction ceases to be a participating
jurisdiction on publication in the South Australian Government Gazette of a
declaration made by the Ministers of the other participating jurisdictions in
accordance with subsection (5).
6—Ministers of participating jurisdictions
(1) The
Ministers of the participating jurisdictions are—
(a) the Minister of the Crown in right of South
Australia administering Part 2 of the National Electricity (South Australia)
Act 1996 of South Australia; and
(b) the Ministers of the Crown in right of the
other participating jurisdictions administering the laws of those jurisdictions
that correspond to Part 2 of the National Electricity (South Australia)
Act 1996 of South Australia.
(2) The
State of Tasmania may nominate a Minister of the Crown in right of that State
to be a Minister of a participating jurisdiction and the nominated Minister is
to be treated as such until—
(a) there is in force in Tasmania a law that
corresponds to Part 2 of the National Electricity (South Australia)
Act 1996 of South Australia; or
(b) a date fixed by all participating
jurisdictions by agreement,
whichever first
occurs.
(3) A notice of an agreement under
subsection (2) must be published in the South Australian Government
Gazette.
7—National electricity market objective
The national
electricity market objective is to promote efficient investment in, and
efficient use of, electricity services for the long term interests of consumers
of electricity with respect to price, quality, reliability and security of
supply of electricity and the reliability, safety and security of the national
electricity system.
8—MCE statements of policy principles
(1) Subject to this section, the MCE may issue
a statement of policy principles in relation to any matters that are relevant
to the exercise and performance by the AEMC of its functions and powers.
(2) Before issuing a statement of policy
principles, the MCE must be satisfied that the statement is consistent with the
national electricity market objective.
(3) As soon as practicable after issuing a
statement of policy principles, the MCE must give a copy of the statement to
the AEMC.
(4) The AEMC must publish the statement in the South
Australian Government Gazette and on its website as soon as practicable
after it is given a copy of the statement.
9—National Electricity Rules to have force of law
The National
Electricity Rules have the force of law in this jurisdiction.
10—Application of this Law and Regulations to coastal
waters of this jurisdiction
(1) This
Law and the Regulations apply in the coastal waters of this jurisdiction.
Note—
The Rules apply in
this jurisdiction by operation of this Law.
(2) In
this section—
adjacent area has
the same meaning as in the Petroleum (Submerged Lands) Act 1967 of the
Commonwealth;
coastal waters of
this jurisdiction means any sea that is on the landward
side of the adjacent area of this jurisdiction but is not within the limits of
this jurisdiction.
Part 2—Participation in the National Electricity
Market
11—Registration required to undertake certain
activities in the national electricity market
(1) A
person must not engage in the activity of owning, controlling or operating a
generating system connected to the interconnected transmission and distribution
system unless—
(a) the person is a Registered participant in
relation to that activity; or
(b) the person is the subject of a derogation
that exempts the person, or is otherwise exempted by NEMMCO, from the
requirement to be a Registered participant in relation to that activity under
this Law and the Rules.
Note—
Subsection (1) is
a civil penalty provision: See the definition of "civil penalty
provision" in section 58.
(2) A
person must not engage in the activity of owning, controlling or operating a
transmission system or distribution system that forms part of the
interconnected transmission and distribution system unless—
(a) the person is a Registered participant in
relation to that activity; or
(b) the person is the subject of a derogation
that exempts the person, or is otherwise exempted by the AER, from the
requirement to be a Registered participant in relation to that activity under
this Law and the Rules.
Note—
Subsection (2) is
a civil penalty provision: See the definition of "civil penalty
provision" in section 58.
(3) A person, other than NEMMCO, must not
engage in the activity of operating or administering a wholesale exchange for
electricity.
Note—
Subsection (3) is
a civil penalty provision: See the definition of "civil penalty
provision" in section 58.
(4) A
person must not engage in the activity of purchasing electricity directly
through a wholesale exchange unless—
(a) the person is a Registered participant in
relation to that activity; or
(b) the person is the subject of a derogation
that exempts the person, or is otherwise exempted by NEMMCO, from the
requirement to be a Registered participant in relation to that activity under
this Law and the Rules.
Note—
Subsection (4) is
a civil penalty provision: See the definition of "civil penalty
provision" in section 58.
12—Registration or exemption of persons participating
in the national electricity market
(1) A person engaged or proposing to engage in
an activity referred to in section 11(1), (2) or (4) may request NEMMCO to
register that person as a Registered participant in relation to that activity
for the purposes of this Law and the Rules.
(2) A person engaged or proposing to engage in
an activity referred to in section 11(1) or (4) may request NEMMCO to exempt
that person from registering as a Registered participant in relation to that
activity for the purposes of this Law and the Rules.
(3) A request under subsection (1) or (2)
must be in accordance with the Rules.
(4) On receipt of a request under subsection (1)
to be registered as a Registered participant, NEMMCO may, subject to the Rules,
register the person in such categories of registration as are specified in the
Rules.
(5) On receipt of a request under
subsection (2) to be exempted from being registered as a Registered
participant, NEMMCO may, subject to the Rules, grant the person the exemption.
(6) Registration as a Registered participant
under subsection (4) or an exemption granted under subsection (5) may
be subject to such terms and conditions as NEMMCO considers appropriate in
accordance with the Rules.
13—Exemptions for transmission system or distribution
system owners, controllers and operators
(1) A person engaged or proposing to engage in
the activity referred to in section 11(2) may request the AER to exempt
that person from registering as a Registered participant in relation to that
activity for the purposes of this Law and the Rules.
(2) A request under subsection (1) must be
in accordance with the Rules.
(3) On receipt of a request under
subsection (1), the AER may, subject to the Rules, grant the person the
exemption.
(4) An exemption granted under
subsection (3) may be subject to such terms and conditions as the AER
considers appropriate in accordance with the Rules.
14—Evidence as to Registered participants and
exemptions
(1) A
certificate signed by a member of the board of directors of NEMMCO certifying
that a person—
(a) is a Registered participant is evidence
that the person is a Registered participant;
(b) has been granted an exemption under
section 12 is evidence that the person has been granted the exemption.
Note—
A certificate may
be in respect of a Registered participant registered by NEMMCO in accordance
with section 12 and the Rules, or in accordance with the Rules alone.
(2) A certificate signed by a member of the AER
certifying that a person has been granted an exemption under section 13 is
evidence that the person has been granted the exemption.
Part 3—Functions and powers of the Australian Energy Regulator
Division 1—General
15—Functions and powers of the AER
The AER
has the following functions and powers—
(a) to monitor compliance by Registered
participants and other persons with this Law, the Regulations and the Rules;
and
(b) to investigate breaches or possible
breaches of provisions of this Law, the Regulations or the Rules that are not
offence provisions; and
(c) to institute and conduct proceedings—
(i) against relevant participants under
section 61 of this Law or section 44AAG of the Trade Practices Act 1974
of the Commonwealth; or
(ii) in respect of Registered participants under
section 63 of this Law; or
(iii) against persons under section 68 of this
Law; and
(d) to institute and conduct appeals from
decisions in proceedings referred to in paragraph (c); and
(e) to exempt persons proposing to engage, or
engaged, in the activity of owning, controlling or operating a transmission
system or distribution system forming part of the interconnected transmission
and distribution system from being registered as Registered participants; and
(f) AER economic regulatory functions or
powers; and
(g) any other functions and powers conferred on
it under this Law and the Rules.
16—Manner in which AER must perform or exercise AER
economic regulatory functions or powers
(1) The
AER must, in performing or exercising an AER economic regulatory function or
power—
(a) perform or exercise that function or power
in a manner that will or is likely to contribute to the achievement of the
national electricity market objective; and
(b) if the function or power performed or
exercised by the AER relates to the making of a transmission determination,
ensure that the regulated transmission system operator to whom the
determination will apply, and any affected Registered participant, are, in
accordance with the Rules—
(i) informed of material issues under
consideration by the AER; and
(ii) given a reasonable opportunity to make
submissions in respect of that determination before it is made.
(2) Without
limiting subsection (1)(a), the AER, in making a transmission
determination, must in accordance with the Rules—
(a) provide a reasonable opportunity for the
regulated transmission system operator to recover the efficient costs of
complying with a regulatory obligation; and
(b) provide effective incentives to the
regulated transmission system operator to promote economic efficiency in the
provision by it of services that are the subject of the transmission
determination, including—
(i) the making of efficient investments in the
transmission system owned, controlled or operated by it and used to provide
services that are the subject of the transmission determination; and
(ii) the efficient provision by it of services
that are the subject of the transmission determination; and
(c) make allowance for the value of assets
forming part of the transmission system owned, controlled or operated by the
regulated transmission system operator, and the value of proposed new assets to
form part of that transmission system, that are, or are to be, used to provide
services that are the subject of the transmission determination; and
(d) have regard to any valuation of assets
forming part of the transmission system owned, controlled or operated by the
regulated transmission system operator applied in any relevant determination or
decision.
(3) In
this section—
affected
Registered participant means a Registered participant (other
than the regulated transmission system operator to whom the determination will
apply) whose interests are affected by the transmission determination;
relevant
determination or decision means—
(a) any previous transmission determination; or
(b) a determination or decision under the
National Electricity Code or jurisdictional electricity legislation regulating
the revenue earned, or prices charged, by the regulated transmission system operator
in respect of services provided by it that were regulated under the Code or
that legislation.
17—Delegations
Any delegation by
the AER under section 44AAH of the Trade Practices Act 1974 of the
Commonwealth extends to, and has effect for the purposes of, this Law, the
Regulations and the Rules.
18—Confidentiality
Section 44AAF of
the Trade Practices Act 1974 of the Commonwealth extends to, and has
effect for the purposes of, this Law, the Regulations and the Rules.
Division 2—Investigation powers
19—Definitions
In this
Division—
authorised person means
a person authorised under section 20;
relevant
provision means—
(a) a provision of this Law that is not an
offence provision; or
(b) a provision of the Rules.
20—Authorised person
The AER may, in
writing, authorise a person to be an authorised person for the purposes of this
Division.
21—Search warrant
(1) An
authorised person may apply to a magistrate for the issue of a search warrant
in relation to a particular place if the person believes on reasonable grounds
that—
(a) there is or has been or will be a breach,
or a possible breach, of a relevant provision; and
(b) there is or may be a thing or things of a
particular kind connected with the breach or possible breach on or in that
place.
(2) If
a magistrate is satisfied by the evidence, on oath or by affidavit, of an
authorised person that there are reasonable grounds for suspecting that there
is, or may be within the next 7 days, a thing or things of a particular kind
connected with a breach or possible breach of a relevant provision on or in a
place, the magistrate may issue a search warrant authorising a person named in
the warrant—
(a) to enter the place specified in the
warrant, with such assistance and by the use of such force as is necessary and
reasonable;
(b) to search the place or any part of the
place;
(c) to search for and seize a thing named or
described in the warrant and which the person believes on reasonable grounds to
be connected with the breach or possible breach of the relevant provision;
(d) to inspect, examine or photograph anything
in the place;
(e) to take extracts from, and make copies of,
any documents in the place;
(f) to take into the place such equipment and
materials as the person requires for exercising the powers.
(3) A
search warrant issued under this section must state—
(a) the purpose for which the search is
required and the nature of the suspected breach of the relevant provision; and
(b) any conditions to which the warrant is
subject; and
(c) whether entry is authorised to be made at
any time of the day or night or during stated hours of the day or night; and
(d) a day, not later than 7 days after the
issue of the warrant, on which the warrant ceases to have effect.
(4) Except as provided by this Law, the rules
to be observed with respect to search warrants mentioned in any relevant laws
of this jurisdiction extend and apply to warrants under this section.
22—Announcement before entry
(1) On executing a search warrant, the person
executing the warrant must announce that he or she is authorised by the warrant
to enter the place and, if the person has been unable to obtain unforced entry,
must give any person at the place an opportunity to allow entry to the place.
(2) A person need not comply with
subsection (1) if he or she believes on reasonable grounds that immediate
entry to the place is required to ensure the safety of any person or that the
effective execution of the search warrant is not frustrated.
23—Details of warrant to be given to occupier
(1) If
the occupier or another person who apparently represents the occupier is
present at premises when a search warrant is being executed, the person
executing the warrant must—
(a) identify himself or herself to that person;
and
(b) give the person a copy of the warrant.
(2) A
person executing the warrant is not entitled to exercise any powers under that
warrant in relation to premises if the person does not—
(a) identify himself or herself to the
occupier, or any other person who apparently represents the occupier and who is
present at the premises, before the warrant is executed; and
(b) give the occupier, or any other person who
apparently represents the occupier and who is present at the premises, a copy
of the warrant.
24—Copies of seized documents
(1) If a person executing a warrant retains
possession of a document seized from a person in accordance with the warrant,
the person must give that other person, within 21 days of the seizure, a copy
of the document certified as correct by the person executing the warrant.
(2) A copy of a document certified under
subsection (1) shall be received in all relevant courts and all tribunals
as evidence of equal validity to the original.
25—Retention and return of seized documents or things
(1) If a person executing a warrant seizes a
document or other thing in accordance with the warrant, the person 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.
(2) If
the document or thing seized has not been returned within 3 months after it was
seized, the person executing the warrant must take reasonable steps to return
it unless—
(a) proceedings for the purpose for which the
document or thing was retained have commenced within that 3 month period and
those proceedings (including any appeal) have not been completed; or
(b) a magistrate makes an order under
section 26 extending the period during which the document or thing may be
retained.
26—Period for retention of documents or things seized
may be extended
(1) An
authorised person may apply to a magistrate—
(a) within 3 months after a document or other
thing was seized in accordance with a warrant; or
(b) if an extension has been granted under this
section, before the end of the period of the extension,
for an extension
of the period for which the AER may retain the document or thing but so that
the total period of retention does not exceed 12 months.
(2) An application must be made before
proceedings for the purpose for which the document or thing was retained have
been commenced.
(3) A
magistrate may order such an extension if he or she is satisfied that—
(a) it is in the interests of justice; and
(b) the total period of retention does not
exceed 12 months; and
(c) retention of the document or other thing is
necessary—
(i) for the purposes of an investigation into
whether a breach of a relevant provision has occurred; or
(ii) to enable evidence of a breach of a
relevant provision to be obtained for the purposes of a proceeding under this
Law.
(4) If proceedings are commenced for the
purpose for which the document or thing was retained at any time before the
expiry of the period specified in an order under this section, the document or
thing may be retained until those proceedings (including any appeal) have been
completed despite those proceedings being completed after the period specified
in the order.
(5) At least 7 days prior to the hearing of an
application under this section by a magistrate, notice of the application must
be sent to the owner of the document or thing described in the application.
27—Obstruction of persons authorised to enter
A
person must not, without reasonable excuse, obstruct or hinder a person in the
exercise of a power under a search warrant under this Division.
Penalty:
(a) in the case of natural person—$2 000;
(b) in the case of a body
corporate—$10 000.
28—Power to obtain information and documents in relation
to performance and exercise of functions and powers
(1) If the AER has reason to believe that a
person is capable of furnishing information or producing a document that the
AER requires for the performance or exercise of a function or power conferred
on it under this Law or the Rules, the AER may, by notice in writing, serve on
that person a relevant notice.
(2) A
relevant notice may require the person to—
(a) furnish to the AER, by writing signed by
that person or, in the case of a body corporate, by a competent officer of the
body corporate, within the time and in the manner specified in the notice, any
information of the kind referred to in subsection (1); or
(b) produce to the AER, or to a person
specified in the notice acting on its behalf, in accordance with the notice,
any documents of the kind referred to in subsection (1).
(3) A
person must not—
(a) without reasonable excuse, refuse or fail
to comply with a relevant notice; or
(b) in
purported compliance with a relevant notice, knowingly furnish information that
is false or misleading.
Penalty:
(a) in the case of a natural
person—$2 000;
(b) in the case of a body
corporate—$10 000.
(4) To avoid doubt, it is a reasonable excuse for
the purposes of subsection (3)(a) if a person is not capable of complying
with a relevant notice.
(5) It
is also a reasonable excuse for a natural person to—
(a) fail to furnish information of the kind
referred to in subsection (1) to the AER; or
(b) fail to produce a document of the kind
referred to in subsection (1) to the AER, or to a person specified in a
relevant notice acting on behalf of the AER,
if to do so might
tend to incriminate the person or make the person liable to a criminal penalty.
(6) This
section does not require a person to—
(a) furnish information that is the subject of
legal professional privilege; or
(b) produce a document the production of which
would disclose information that is the subject of legal professional privilege.
(7) This
section does not require a person to—
(a) give information that would disclose the
contents of a document prepared for the purposes of a meeting of the Cabinet of
the Commonwealth or of a State or a Territory; or
(b) produce a document prepared for the
purposes of a meeting of the Cabinet of the Commonwealth or of a State or a
Territory; or
(c) give information, or produce a document,
that would disclose the deliberations of the Cabinet of the Commonwealth or of
a State or a Territory.
(8) In
this section—
relevant notice means
a notice served under subsection (1).
Part 4—Functions and powers of the Australian Energy
Market Commission
Division 1—General
29—Functions and powers of the AEMC
(1) The
AEMC has the following functions and powers—
(a) the Rule making functions and powers
conferred on it under this Law and the Regulations; and
(b) the market development functions conferred
on it under this Law and the Rules; and
(c) any other functions and powers conferred on
it under this Law and the Rules.
(2) The AEMC has power to do all things
necessary or convenient to be done for or in connection with the performance of
its functions.
30—Delegations
Any delegation by
the AEMC under section 20 of the Australian Energy Market Commission
Establishment Act 2004 of South Australia extends to, and has effect
for the purposes of, this Law, the Regulations and the Rules.
31—Confidentiality
Section 24 of the Australian
Energy Market Commission Establishment Act 2004 of South Australia
extends to, and has effect for the purposes of, this Law, the Regulations and
the Rules.
32—AEMC must have regard to national electricity
market objective
In performing or
exercising any function or power under this Law, the Regulations or the Rules,
the AEMC must have regard to the national electricity market objective.
33—AEMC must have regard to MCE statements of policy
principles in relation to Rule making and reviews
The
AEMC must have regard to any relevant MCE statement of policy principles—
(a) in making a Rule; or
(b) in conducting a review under
section 45.
Division 2—Rule making functions and powers of the
AEMC
34—Subject matter for National Electricity Rules
(1) Subject
to this Division, the AEMC, in accordance with this Law and the Regulations,
may make Rules, to be known, collectively, as the "National Electricity
Rules", for or with respect to regulating—
(a) the operation of the national electricity
market; and
(b) the operation of the national electricity
system for the purposes of the safety, security and reliability of that system;
and
(c) the activities of persons (including
Registered participants) participating in the national electricity market or
involved in the operation of the national electricity system.
Note—
The procedure for
the making of a Rule by the AEMC is set out in Division 3 of Part 7.
(2) Without limiting subsection (1), the
AEMC, in accordance with this Law and the Regulations, may make Rules for or
with respect to any matter or thing specified in Schedule 1 to this Law.
(3) Rules
made by the AEMC in accordance with this Law and the Regulations may—
(a) be of general or limited application;
(b) vary according to the persons, times,
places or circumstances to which they are expressed to apply;
(c) confer functions or powers on, or leave any
matter or thing to be decided or determined by—
(i) the AER, the AEMC, NEMMCO or a jurisdictional
regulator; or
(ii) the Reliability Panel or any other panel or
committee established by the AEMC; or
(iii) any other body established, or person
appointed, in accordance with the Rules;
(d) confer rights or impose obligations on any
person or a class of person (other than the AER, the AEMC or a jurisdictional
regulator);
(e) confer a function on the AER, the AEMC,
NEMMCO, or a jurisdictional regulator, to make or issue guidelines, tests,
standards, procedures or any other document (however described) in accordance
with the Rules;
(f) empower or require any person (other than a
person referred to in paragraph (e)) or body to make or issue guidelines,
tests, standards, procedures or any other document (however described) in
accordance with the Rules;
(g) apply, adopt or incorporate wholly or
partially, or as amended by the Rules, the provisions of any standard, rule,
specification, method or document (however described) formulated, issued,
prescribed or published by any person, authority or body whether—
(i) as formulated, issued, prescribed or
published at the time the Rules are made or at any time before the Rules are
made; or
(ii) as amended from time to time;
(h) confer a power of direction on the AER, the
AEMC, NEMMCO or a jurisdictional regulator to require a person conferred a
right or on whom an obligation is imposed under the Rules (including a
Registered participant) to comply with—
(i) a guideline, test, standard, procedure or
other document (however described) referred to in paragraph (e) or (f); or
(ii) a standard, rule, specification, method or
document (however described) referred to in paragraph (g);
(i) if this section authorises or requires
Rules that regulate any matter or thing, prohibit that matter or thing or any
aspect of that matter of thing;
(j) provide for the review of, or a right of
appeal against, a decision or determination made under the Rules and for that
purpose, confer jurisdiction on the Court;
(k) require a form prescribed by or under the
Rules, or information or documents included in, attached to or given with the
form, to be verified by statutory declaration;
(l) in a specified case or class of case,
exempt—
(i) NEMMCO; or
(ii) a Registered participant or class of
Registered participant; or
(iii) any other person or body performing or
exercising a function or power, or conferred a right, or on whom an obligation
is imposed, under the Rules or a class of any such person or body,
from complying
with a provision, or a part of a provision, of the Rules;
(m) provide for the modification or variation of
a provision of the Rules (with or without substitution of a provision of the
Rules or a part of a provision of the Rules) as it applies to—
(i) NEMMCO; or
(ii) a Registered participant or class of
Registered participant; or
(iii) any other person or body performing or
exercising a function or power, or conferred a right, or on whom an obligation
is imposed, under the Rules or a class of any such person or body;
(n) confer an immunity on, or limit the
liability of, any person or body performing or exercising a function or power,
or conferred a right, or on whom an obligation is imposed, under the Rules;
(o) require a person or body performing or
exercising a function or power, or conferred a right, or on whom an obligation
is imposed, under the Rules to indemnify another such person or body;
(p) contain provisions of a savings or
transitional nature consequent on the amendment or revocation of a Rule.
35—Rules in relation to economic regulation of
transmission systems
(1) Subject to this section, the AEMC must make
Rules for or with respect to the matters or things specified in items 15 to 24
of Schedule 1 to this Law on or before 1 July 2006 or any later date that is
prescribed by the Regulations.
(2) In making Rules as required by this
section, the AEMC must treat the Rules as AEMC initiated Rules.
(3) Rules
made as required by this section must—
(a) provide a reasonable opportunity for a
regulated transmission system operator to recover the efficient costs of
complying with a regulatory obligation; and
(b) provide effective incentives to a regulated
transmission system operator to promote economic efficiency in the provision by
it of services that are the subject of a transmission determination, including—
(i) the making of efficient investments in the
transmission system owned, controlled or operated by it and used to provide
services that are the subject of a transmission determination; and
(ii) the efficient provision by it of services
that are the subject of a transmission determination; and
(c) require the AER, in making a transmission
determination, to make allowance for the value of assets forming part of a
transmission system owned, controlled or operated by a regulated transmission
system operator, and the value of proposed new assets to form part of that
transmission system, that are, or are to be, used to provide services that are
the subject of a transmission determination; and
(d) require the AER to have regard to any
valuation of assets forming part of a transmission system owned, controlled or
operated by a regulated transmission system operator applied in any relevant
determination or decision.
(4) In
this section—
relevant
determination or decision means—
(a) any previous transmission determination; or
(b) a determination or decision under the
National Electricity Code or jurisdictional electricity legislation regulating
the revenue earned, or prices charged, by a regulated transmission system
operator in respect of services provided by it that were regulated under the
Code or that legislation.
36—National Electricity Rules to always provide for
certain matters relating to transmission systems
On and from the
date Rules are first made as required by section 35, the National
Electricity Rules must at all times provide for the matters or things specified
in items 15 to 24 of Schedule 1 to this Law and the matters or things specified
in section 35(3).
37—Documents etc applied, adopted and incorporated by
Rules to be publicly available
(1) The
AEMC must make publicly available—
(a) every standard, rule, specification, method
or document (however described) formulated, issued, prescribed or published by
any person, authority or body that is applied, adopted or incorporated by a
Rule; and
(b) if a standard, rule, specification, method
or document (however described) formulated, issued, prescribed or published by
any person, authority or body is applied, adopted or incorporated by a Rule as
amended from time to time—any amendment to that standard, rule, specification,
method or document.
(2) In
this section—
publicly
available, in relation to a standard, rule, specification,
method or document (however described) formulated, issued, prescribed or
published by any person, authority or body applied, adopted or incorporated by
any Rule, means—
(a) publishing the standard, rule,
specification, method or document on the AEMC's website; or
(b) specifying a place from which the standard,
rule, specification, method or document may be obtained or purchased (as the
case requires).
Division 3—Committees, panels and working groups of
the AEMC
38—The Reliability Panel
(1) The AEMC must establish a panel of persons
to be known as the Reliability Panel, the composition of which must be in
accordance with the Rules.
(2) The
functions and powers of the Reliability Panel are—
(a) to monitor, review and report on, in
accordance with the Rules, the safety, security and reliability of the national
electricity system; and
(b) at the request of the AEMC, to provide
advice in relation to the safety, security and reliability of the national
electricity system; and
(c) any other functions and powers conferred on
it under this Law and the Rules.
(3) At the completion of a review, the
Reliability Panel must give a report to the AEMC.
(4) If requested to do so by the AEMC, the
Reliability Panel must provide advice to the AEMC in relation to the safety,
security and reliability of the national electricity system.
39—Establishment of committees and panels (other than
the Reliability Panel) and working groups
The
AEMC may establish committees and panels (other than the Reliability Panel) and
working groups to—
(a) provide advice on specified aspects of the
AEMC's functions; or
(b) undertake any other activity in relation to
the AEMC's functions as is specified by the AEMC.
Division 4—MCE directed reviews
40—Definition
In this
Division—
MCE directed
review means a review conducted in accordance with this
Division.
41—MCE directions
(1) The
MCE may give a written direction to the AEMC that the AEMC conduct a review
into—
(a) any matter relating to the national
electricity market; or
(b) the operation and effectiveness of the
Rules; or
(c) any matter relating to the Rules.
(2) A direction given to the AEMC under this
section is binding on the AEMC and must be complied with despite anything to
the contrary in the Rules.
(3) A direction given under this section must
be published in the South Australian Government Gazette.
(4) The AEMC must cause a direction given under
this section to be published on its website.
42—Terms of reference
(1) The terms of reference of a MCE directed
review will be as specified in the direction given by the MCE.
(2) The
MCE may in its direction to the AEMC do one or more of the following—
(a) require the AEMC to give a report on a MCE
directed review to the MCE within a specified period;
(b) require the AEMC to make the report on a
MCE directed review publicly available or available to specified persons or
bodies;
(c) require the AEMC to make a draft report
publicly available or available to specified persons or bodies during a MCE
directed review;
(d) require the AEMC to consider specified
matters in the conduct of a MCE directed review;
(e) require the AEMC to have specified
objectives in the conduct of a MCE directed review which need not be limited by
the national electricity market objective;
(f) give the AEMC other specific directions in
respect of the conduct of a MCE directed review.
43—Notice of MCE directed review
(1) The AEMC must publish notice of a MCE
directed review on its website and in a newspaper circulating generally
throughout Australia.
(2) The AEMC must publish a further such notice
if a term of reference or a requirement or direction relating to the MCE
directed review is varied.
44—Conduct of MCE directed review
Subject
to any requirement or direction of the MCE, a MCE directed review—
(a) may be conducted in such manner as the AEMC
considers appropriate; and
(b) may (but need not) involve public hearings.
Division 5—Other reviews
45—Reviews by the AEMC
(1) The
AEMC may conduct a review into—
(a) the operation and effectiveness of the
Rules; or
(b) any matter relating to the Rules.
(2) A
review—
(a) may be conducted in such manner as the AEMC
considers appropriate; and
(b) may (but need not) involve public hearings.
(3) During
the course of a review, the AEMC may—
(a) consult with any person or body that it
considers appropriate;
(b) establish working groups to assist it in
relation to any aspect, or any matter or thing that is the subject, of the
review;
(c) commission reports by other persons on its
behalf on any aspect, or matter or thing that is the subject, of the review;
(d) publish discussion papers or draft reports.
(4) At
the completion of a review, the AEMC must—
(a) publish a report; and
(b) give a copy of the report to the MCE.
Division 6—Miscellaneous
46—AEMC must publish and make available up to date
versions of the National Electricity Rules
The
AEMC must, at all times—
(a) publish on its website, the National
Electricity Rules, as in force from time to time; and
(b) make copies of the National Electricity
Rules, as in force from time to time, available to the public for inspection at
its offices during normal business hours.
47—Fees for services provided
(1) The AEMC may charge a fee specified in the
Regulations for services provided by it in performing or exercising any of its
functions or powers under this Law or the Rules.
(2) The fee must not be such as to amount to
taxation.
48—Confidentiality of information received for the
purposes of a review
(1) Information
provided to the AEMC for the purposes of a MCE directed review or a review
conducted by the AEMC under section 45 is confidential information for the
purposes of Division 4 or 5 if—
(a) the person who provides it claims, when
providing it to the AEMC, that it is confidential information; and
(b) the AEMC decides that the information is confidential
information.
(2) Nothing prevents the disclosure of
confidential information in a report to the MCE or a Minister of a
participating jurisdiction under Division 4 or 5, but the AEMC must ensure that
the information is identified as such in the report.
(3) If the AEMC decides that information
provided to it for the purposes of a MCE directed review, or a review conducted
by the AEMC under section 45, is confidential information, the AEMC, the
MCE or a Minister of a participating jurisdiction may only make public a
version of the report from which the information has been omitted.
(4) If information is omitted from a published
version of a report as being confidential information, a note to that effect
must be included in the report at the place in the report from which the
information is omitted.
(5) In
this section—
MCE directed
review has the same meaning as in section 40.
Note—
Section 48 of this
Law permits the disclosure of confidential information for the purposes of
section 24(2) of the Australian Energy Market Commission Establishment
Act 2004 of South Australia.
Part 5—Role of NEMMCO under the National Electricity
Law
Division 1—Conferral of certain functions
49—Functions of NEMMCO in respect of national
electricity market
(1) NEMMCO
has the following functions in respect of the national electricity market—
(a) to operate and administer, in accordance
with this Law and the Rules, the wholesale exchange; and
(b) to promote the development and improve the
effectiveness of the operation and administration of the wholesale exchange;
and
(c) to register persons as Registered
participants in accordance with this Law and the Rules or otherwise in
accordance with the Rules; and
(d) to exempt certain persons from being
registered as Registered participants; and
(e) to maintain and improve power system
security; and
(f) to undertake the coordination of the
planning of augmentations to the national electricity system; and
(g) any other functions conferred on it under
this Law or the Rules.
(2) NEMMCO must exercise the functions referred
to in this section in accordance with this Law and the Rules.
50—Operation and administration of national
electricity market
NEMMCO must
perform a function referred to in section 49 efficiently and on a full cost
recovery but not for profit basis.
51—NEMMCO not to be taken to be engaged in the
activity of controlling or operating a generating, transmission or distribution
system
NEMMCO is not to
be taken to be engaged in the activity of controlling or operating a generating
system, transmission system or distribution system by reason only of it
performing the functions conferred on it under this Law or the Rules.
52—Delegation
NEMMCO, in
accordance with the Rules, may, in writing, delegate to any person a function
or power conferred on it under this Law or the Rules other than this power of
delegation.
Division 2—Statutory funds of NEMMCO
53—Definitions
In this
Division—
Code fund has
the same meaning as in section 65 of the old National Electricity Law;
existing Rule fund means
a Code fund established by NEMMCO under section 67 of the old National
Electricity Law;
new Rule fund means
a fund that NEMMCO is required to establish in accordance with this Law;
Rule fund means
an existing Rule fund or new Rule fund.
54—Rule funds of NEMMCO
(1) Subject to the Rules, NEMMCO must continue
to have, in the books of the corporation, the existing Rule funds.
(2) NEMMCO must, if required to do so by the
Rules, establish, in accordance with the Rules, in the books of the
corporation, a new Rule fund.
55—Payments into Rule funds
(1) NEMMCO
must ensure that there is paid into each Rule fund—
(a) all amounts received by NEMMCO that, under
the Rules, are required to be paid into the fund; and
(b) income from investment of money in the
fund.
(2) Money
of a Rule fund may be applied only in payment of—
(a) amounts that, under the Rules, are required
or permitted to be paid from the fund;
(b) liabilities or expenses of the fund.
56—Investment
(1) NEMMCO may invest money standing to the
credit of a Rule fund.
(2) NEMMCO must, in exercising a power of
investment under subsection (1), exercise the care, diligence and skill
that a prudent person would exercise in managing the affairs of other persons.
57—NEMMCO not trustee
To avoid doubt, it
is declared that nothing in this Law or the Rules is to be taken as
constituting NEMMCO, or a director of NEMMCO, as a trustee of the money of a
Rule fund.
Part 6—Proceedings under the National Electricity Law
Division 1—General
58—Definitions
In this
Part—
civil
penalty means—
(a) in the case of a breach of a civil penalty
provision that is not a rebidding civil penalty provision by—
(i) a natural person—
(A) an amount not exceeding $20 000; and
(B) an amount not exceeding $2 000 for
every day during which the breach continues;
(ii) a body corporate—
(A) an amount not exceeding $100 000; and
(B) an amount not exceeding $10 000 for
every day during which the breach continues;
(b) in the case of a breach of a rebidding
civil penalty provision by any person—
(i) an amount not exceeding
$1 000 000; and
(ii) an amount not exceeding $50 000 for
every day during which the breach continues;
civil
penalty provision means—
(a) section 11(1), (2), (3) or (4); or
(b) a rebidding civil penalty provision; or
(c) any other provision of this Law or a
provision of the Rules prescribed by the Regulations to be a civil penalty
provision;
Dispute resolution
panel means a person or a panel of persons appointed in
accordance with the Rules to hear and determine a Rule dispute;
rebidding civil
penalty provision means a provision of the Rules that is
prescribed by the Regulations to be a rebidding civil penalty provision;
Rule dispute means
a dispute between persons in relation to a matter or thing arising under the
Rules in respect of which the Rules provide that the dispute must be resolved
in accordance with the Rules.
59—Instituting civil proceedings under this Law
(1) Proceedings may not be instituted in a
relevant court in respect of a breach of a provision of this Law, the
Regulations or the Rules that is not an offence provision by any person (other
than the AER) except as provided for in this Part.
(2) Despite subsection (1), a person may
institute a proceeding in the Court in respect of any matter or thing arising
out of or that is the subject of a Rule dispute if the Rules provide that a
proceeding may be instituted in the Court in respect of that matter or thing.
(3) To avoid doubt, nothing in this Part
prevents the use of this Law, the Regulations or the Rules as evidence in any
proceedings.
Division 2—Proceedings by the AER in respect of this
Law, the Regulations and the Rules
60—Time limit within which AER may institute proceedings
A proceeding for a
breach of a provision of this Law, the Regulations or the Rules by a relevant
participant that is not an offence provision may only be instituted by the AER
within 6 years of the date on which the breach occurred.
61—Proceedings for breaches of a provision of this
Law, the Regulations or the Rules that are not offences
(1) The
Court may make an order, on application by the AER on behalf of the
Commonwealth, declaring that a relevant participant is in breach of a provision
of this Law, the Regulations or the Rules that is not an offence provision.
Note—
A Supreme Court of
a participating jurisdiction that is a State may hear an application by the AER
under subsection (1) by operation of subsection 39(2) of the Judiciary Act
1903 of the Commonwealth.
(2) If
the order declares the relevant participant to be in breach of a provision of
this Law, the Regulations or the Rules that is not an offence provision, the
order may include one or more of the following—
(a) an order that the relevant participant pay
a civil penalty determined in accordance with this Law, the Regulations and the
Rules;
(b) an order that the relevant participant
cease, within a specified period, the act, activity or practice constituting
the breach;
(c) an order that the relevant participant take
such action, or adopt such practice, as the Court requires for remedying the
breach or preventing a recurrence of the breach;
(d) an order that the relevant participant
implement a specified program for compliance with this Law, the Regulations and
the Rules;
(e) an order of a kind prescribed by the
Regulations.
(3) If
a relevant participant has engaged, is engaging or is proposing to engage in
any conduct in breach of a provision of this Law, the Regulations or the Rules
that is not an offence provision, the Court may, on application by the AER,
grant an injunction—
(a) restraining the relevant participant from
engaging in the conduct; and
(b) if, in the Court's opinion, it is desirable
to do so—requiring the relevant participant to do something.
(4) The
power of the Court under subsection (3) to grant an injunction restraining
a relevant participant from engaging in conduct of a particular kind may be
exercised—
(a) if the Court is satisfied that the relevant
participant has engaged in conduct of that kind—whether or not it appears to
the Court that the relevant participant intends to engage again, or to continue
to engage, in conduct of that kind; or
(b) if it appears to the Court that, if an
injunction is not granted, it is likely that the relevant participant will
engage in conduct of that kind—whether or not the relevant participant has
previously engaged in conduct of that kind and whether or not there is an
imminent danger of substantial damage to any person if the relevant participant
engages in conduct of that kind.
62—Additional Court orders for Registered participants
in breach
An
order under section 61 by the Court may, in relation to a Registered
participant that has been declared in that order to be in breach of a provision
of this Law, the Regulations or the Rules that is not an offence provision,
also include either or both of the following—
(a) a direction that the Registered
participant's loads be disconnected in accordance with the Rules;
(b) a direction that the Registered participant
be suspended from, as the case requires, purchasing or supplying electricity
through the wholesale exchange operated and administered by NEMMCO.
Note—
There is power
under paragraph 44AAG(2)(e) of the Trade Practices Act 1974 of the
Commonwealth to prescribe, by regulation, an order that may be included in an
order of the Federal Court declaring a person to be in breach of a law referred
to in subsection 44AAG(1) of the Trade Practices Act 1974 of the
Commonwealth. An order of the kind referred to section 62 of this Law may be
prescribed under that paragraph.
63—Orders for disconnection in certain circumstances
where there is no breach
(1) The Court, on application by the AER on
behalf of the Commonwealth, may make an order that directs that a Registered
participant's loads be disconnected if a relevant disconnection event occurs.
(2) In
this section—
relevant
disconnection event means an event specified in the Rules as
being an event for which a Registered participant's loads may be disconnected,
being an event that does not constitute a breach of the Rules.
64—Matters for which there must be regard in
determining amount of civil penalty
Every
civil penalty ordered to be paid by a relevant participant declared to be in
breach of a provision of this Law, the Regulations or the Rules must be
determined having regard to all relevant matters, including—
(a) the nature and extent of the breach; and
(b) the nature and extent of any loss or damage
suffered as a result of the breach; and
(c) the circumstances in which the breach took
place; and
(d) whether the relevant participant has
engaged in any similar conduct and been found to be in breach of a provision of
this Law, the Rules or the Regulations in respect of that conduct.
65—Breach of a civil penalty provision is not an
offence
A breach of a
civil penalty provision is not an offence.
66—Breaches of civil penalty provisions involving
continuing failure
For the purpose of
determining the civil penalty for a breach of a civil penalty provision if the
breach consists of a failure to do something that is required to be done, the
breach is to be regarded as continuing until the act is done despite the fact
that any period within which, or time before which, the act is required to be
done has expired or passed.
67—Conduct in breach of more than one civil penalty
provision
(1) If the conduct of a relevant participant
constitutes a breach of 2 or more civil penalty provisions, proceedings may be
instituted under this Law against the relevant participant in relation to the
breach of any one or more of those provisions.
(2) However,
the relevant participant is not liable to more than one civil penalty under
this Law in respect of the same conduct.
Note—
Clause 39 of
Schedule 2 to this Law sets out further provisions in relation to double
jeopardy.
68—Persons involved in breach of civil penalty
provision
(1) A
person must not—
(a) aid, abet, counsel or procure a breach of a
civil penalty provision by a relevant participant; or
(b) be in any way directly or indirectly
knowingly concerned in, or party to, a breach of a civil penalty provision by a
relevant participant.
(2) A relevant participant who attempts to
commit a breach of a civil penalty provision commits a breach of that
provision.
(3) This Law applies to a person who breaches
subsection (1) in relation to a civil penalty provision as if the person
were a relevant participant who has breached the civil penalty provision.
69—Civil penalties payable to the Commonwealth
If a relevant
participant is ordered to pay a civil penalty, the penalty is payable to the
Commonwealth.
Division 3—Judicial review of decisions and
determinations under this Law, the Regulations and the Rules
70—Applications for judicial review
(1) A
person aggrieved by—
(a) a decision or determination of the AEMC or
NEMMCO under this Law, the Regulations or the Rules; or
(b) a failure by the AEMC or NEMMCO to make a
decision or determination under this Law, the Regulations or the Rules; or
(c) conduct engaged in, or proposed to be
engaged in, by the AEMC or NEMMCO for the purpose of making a decision or
determination under this Law, the Regulations or the Rules,
may apply to the
Court for judicial review of the decision or determination, failure or conduct
or proposed conduct.
Note—
The AER is subject
to judicial review under the Administrative Decisions (Judicial Review) Act
1977 of the Commonwealth.
(2) Unless the Court otherwise orders, the
making of an application to the Court under subsection (1) does not affect
the operation of the decision or determination referred to in that subsection
or prevent the taking of action to implement the decision or determination.
(3) In
this section—
person aggrieved
includes a person whose interests are adversely affected.
71—Appeals on questions of law from decisions or
determinations of Dispute resolution panels
(1) A person who is a party to a Rule dispute
may appeal to the Court, on a question of law, against a decision or
determination of a Dispute resolution panel.
(2) The
relevant Parts of the Commercial Arbitration Act of this jurisdiction apply to
a decision or determination of a Dispute resolution panel as if—
(a) the Rules providing for a Rule dispute were
an arbitration agreement within the meaning of that Act; and
(b) a decision or determination of a Dispute
resolution panel were an award of an arbitrator.
(3) In
this section—
relevant
Parts of the Commercial Arbitration Act of this jurisdiction means—
(a) if this Law is applied as a law of the
State of New South Wales and a Rule dispute is heard and determined in that
State, Parts III, IV and V of the Commercial Arbitration Act 1984 of New
South Wales;
(b) if this Law is applied as a law of the State
of Victoria and a Rule dispute is heard and determined in that State, Parts
III, IV and V of the Commercial Arbitration Act 1984 of Victoria;
(c) if this Law is applied as a law of the
State of Queensland and a Rule dispute is heard and determined in that State,
Parts 3, 4 and 5 of the Commercial Arbitration Act 1990 of Queensland;
(d) if this Law is applied as a law of the
State of South Australia and a Rule dispute is heard and determined in that
State, Parts III, IV and V of the Commercial Arbitration Act 1986
of South Australia;
(e) if this Law is applied as a law of the
Australian Capital Territory and a Rule dispute is heard and determined in that
Territory, Parts 3, 4 and 5 of the Commercial Arbitration Act 1986 of
the Australian Capital Territory;
(f) if this Law is applied as a law of another
participating jurisdiction and a Rule dispute is heard and determined in that
other participating jurisdiction, the Parts of an Act of that jurisdiction or
an Act of another participating jurisdiction (as the case requires) prescribed
by the Regulations as corresponding to Parts III, IV and V of the Commercial
Arbitration Act 1986 of South Australia.
Division 4—Other civil proceedings
72—Obligations under Rules to make payments
(1) If,
under the Rules—
(a) a Registered participant is required to pay
an amount to NEMMCO or another Registered participant; or
(b) NEMMCO is required to pay an amount to a
Registered participant,
and that amount is
not paid within 28 days after it is due in accordance with the Rules, the
Registered participant to whom the amount is due, or NEMMCO (as the case
requires), may recover that amount in a relevant court of competent
jurisdiction as a civil debt payable to them.
(2) If,
under the Rules, a Registered participant is required to pay an amount to
NEMMCO or another Registered participant, or NEMMCO is required to pay an
amount to a Registered participant, and the Rules do not specify a date for
payment of that amount—
(a) that amount must be paid within the period
of time specified in any notice to pay issued by the Registered participant or
NEMMCO (as the case requires) that specifies that amount; and
(b) the Registered participant that issued the
notice to pay, or NEMMCO (as the case requires), may, if that amount is not
paid within 28 days after it is due in accordance with that notice, recover
that amount in a relevant court of competent jurisdiction as a civil debt
payable to them.
(3) Subsection (1)
and (2) apply despite a Registered participant or NEMMCO disputing, in
accordance with the Rules, an amount to be paid under the Rules, or specified
in a notice to pay, unless—
(a) the Rules otherwise provide; or
(b) the parties to the dispute agree otherwise;
or
(c) a relevant Dispute resolution panel, in a
civil claim Rule dispute in respect of the payment of an amount referred to in
subsection (1) or (2), determines that the relevant subsection does not
apply; or
(d) a relevant court of competent jurisdiction
determines that subsection (1) or (2) does not apply.
(4) In
this section—
civil claim Rule
dispute means a dispute between Registered participants, or
between NEMMCO and a Registered participant, in relation to the payment of an
amount under the Rules in respect of which the Rules provide that the dispute
must be resolved in accordance with the Rules;
relevant Dispute
resolution panel means a Dispute resolution panel
appointed to hear and determine a civil claim Rule dispute;
notice to pay
includes a statement of payment, settlement statement, bill or invoice.
Division 5—Infringement notices
73—Definition
In this
Division—
relevant civil
penalty provision means a civil penalty provision that is
not a rebidding civil penalty provision.
74—Power to serve a notice
(1) The AER may serve an infringement notice on
a relevant participant that it has reason to believe has breached a relevant
civil penalty provision.
(2) An
infringement notice may be served on a relevant participant—
(a) if the relevant participant is a natural
person—
(i) by delivering it personally to the person;
or
(ii) by sending it by post addressed to the
person to their usual or last known place of residence or business; or
(b) if the relevant participant is a body
corporate—
(i) by delivering it personally to the
registered office or usual or last known place of business of the body
corporate; or
(ii) by sending it by post addressed to the body
corporate to its registered office or usual or last known place of business.
75—Form of notice
An infringement
notice must state—
(a) the date of the notice;
(b) that the alleged breach is a breach of the
relevant civil penalty provision;
(c) the nature, and a brief description, of the
alleged breach;
(d) the date, time and place of the alleged
breach;
(e) the infringement penalty for the alleged
breach;
(f) the manner in which the infringement
penalty may be paid;
(g) the time (being not less than 28 days after
the date on which the notice is served) within which the infringement penalty
must be paid;
(h) that, if the amount of the infringement
penalty is paid before the end of the time specified in the notice, proceedings
will not be instituted in respect of the alleged breach by the AER unless the
notice is withdrawn before the end of that time in accordance with
section 79;
(i) that the relevant participant is entitled
to disregard the notice and defend any proceedings in respect of the relevant
civil penalty provision;
(j) any other particulars prescribed by the
Regulations.
76—Infringement penalty
The
infringement penalty for a breach of a relevant civil penalty provision is—
(a) if the breach is alleged to have been
committed by a natural person—$4 000 or any lesser amount that is
prescribed by the Regulations in relation to the relevant civil penalty
provision;
(b) if the breach is alleged to have been
committed by a body corporate—$20 000 or any lesser amount that is
prescribed by the Regulations in relation to the relevant civil penalty
provision.
77—AER cannot institute proceedings while infringement
notice on foot
On
serving an infringement notice under this Division, the AER must not institute
a proceeding in respect of the breach for which the infringement notice was
served if—
(a) the time for payment stated in the
infringement notice has not expired; and
(b) the infringement notice has not been
withdrawn by the AER in accordance with section 79.
78—Late payment of penalty
The AER
may accept payment of the infringement penalty even after the expiration of the
time for payment stated in the infringement notice if—
(a) a proceeding has not been instituted in
respect of the breach to which the infringement penalty relates; and
(b) the infringement notice has not been
withdrawn by the AER in accordance with section 79.
79—Withdrawal of notice
(1) The AER may withdraw an infringement notice
at any time before the end of the time for payment specified in the notice by
serving a withdrawal notice on the relevant participant served with the
infringement notice.
(2) A
withdrawal notice may be served on a relevant participant—
(a) if the relevant participant is a natural
person—
(i) by delivering it personally to the person;
or
(ii) by sending it by post addressed to the
person to their usual or last known place of residence or business; or
(b) if the relevant participant is a body
corporate—
(i) by delivering it personally to the
registered office or usual or last known place of business of the body
corporate; or
(ii) by sending it by post addressed to the body
corporate to its registered office or usual or last known place of business.
(3) An infringement notice may be withdrawn
even if the infringement penalty has been paid.
80—Refund of infringement penalty
If an infringement
notice is withdrawn in accordance with section 79, the amount of any
infringement penalty paid must be refunded by the AER.
81—Payment expiates breach of relevant civil penalty
provision
No
proceedings may be taken by the AER against a relevant participant on whom an
infringement notice was served in respect of an alleged breach of a relevant
civil penalty provision if—
(a) the infringement penalty is—
(i) paid within the time for payment stated in
the notice; or
(ii) accepted in accordance with
section 78; and
(b) the infringement notice is not withdrawn by
the AER within the time for payment stated in the notice in accordance with
section 79.
82—Payment not to have certain consequences
The payment of an
infringement penalty under this Division is not and must not be taken to be an
admission of a breach of a relevant civil penalty provision or an admission of
liability for the purpose of any proceeding instituted in respect of the
breach.
83—Conduct in breach of more than one civil penalty
provision
(1) If the conduct of a relevant participant
constitutes a breach of 2 or more relevant civil penalty provisions, an
infringement notice may be served on the relevant participant under this
Division in relation to the breach of any one or more of those provisions.
(2) However, the relevant participant is not
liable to pay more than one infringement penalty in respect of the same
conduct.
Note—
Clause 39 of
Schedule 2 to this Law sets out further provisions in relation to double
jeopardy.
Division 6—Miscellaneous
84—AER to inform certain persons of decisions not to
investigate breaches, institute proceedings or serve infringement notices
(1) If
the AER is given information by any person in relation to a breach or a
possible breach of this Law, the Regulations or the Rules by a relevant
participant but—
(a) decides not to investigate that breach or
possible breach; or
(b) following an investigation, decides not to—
(i) institute any proceedings in respect of
that breach or possible breach; or
(ii) serve an infringement notice in accordance
with Division 5 in respect of that breach or possible breach,
the AER must
notify that person of that decision in writing.
(2) This section does not apply if the person
gave the information to the AER anonymously.
85—Offences and breaches by corporations
(1) If a corporation contravenes an offence
provision or is in breach of a civil penalty provision, each officer of the
corporation is to be taken to have contravened the offence provision or to have
been in breach of the civil penalty provision if the officer knowingly
authorised or permitted the contravention or breach.
(2) An officer of a corporation may be
proceeded against under an offence provision or civil penalty provision
pursuant to this section whether or not the corporation has been proceeded
against under the provision.
(3) Nothing in this section affects the
liability of a corporation for a contravention of an offence provision or for a
breach of a civil penalty provision.
(4) In
this section—
officer means
a director of the corporation or a person who is otherwise concerned in its
management.
86—Proceedings for breaches of certain provisions in
relation to actions of officers and employees of relevant participants
(1) If an officer or employee of a relevant
participant commits an act in their capacity as officer or employee of the
relevant participant that would, if that act were committed by the relevant
participant, constitute a breach of a provision of this Law, the Regulations or
the Rules that is not an offence provision, that relevant participant is to be
taken to have contravened that provision.
(2) In
this section—
officer means
a director of the relevant participant or a person who is otherwise concerned
in the management of the relevant participant.
Part 7—The making of the National Electricity Rules
Division 1—General
87—Definitions
In this
Part—
interested person
or body means a person or body that has made a written
submission or comment under section 97 or 100;
non-controversial
Rule means a Rule that is unlikely to have a significant
effect on the national electricity market;
publish means—
(a) in relation to a notice required to be
published under this Part (except section 90 or 103)—publish in the South
Australian Government Gazette, on the AEMC's website and in a newspaper
circulating generally throughout Australia;
(b) in relation to a proposed Rule referred to
in section 95 and any other documents prescribed by the Regulations in relation
to a proposed Rule referred to in section 95—publish on the AEMC's website
and make available at the offices of the AEMC;
(c) in relation to a draft Rule determination
or final Rule determination—publish on the AEMC's website and make available at
the offices of the AEMC;
(d) in relation to any submissions or comments
received by the AEMC under this Part—subject to section 108, publish on the
AEMC's website and make available at the offices of the AEMC;
urgent
Rule means a Rule relating to any matter or thing that, if
not made as a matter of urgency, will result in that matter or thing imminently
prejudicing or threatening—
(a) the effective operation or administration
of the wholesale exchange operated and administered by NEMMCO; or
(b) the safety, security or reliability of the
national electricity system.
88—Rule making test to be applied by AEMC
(1) The AEMC may only make a Rule if it is
satisfied that the Rule will or is likely to contribute to the achievement of
the national electricity market objective.
(2) For the purposes of subsection (1),
the AEMC may give such weight to any aspect of the national electricity market
objective as it considers appropriate in all the circumstances, having regard
to any relevant MCE statement of policy principles.
89—AEMC must have regard to certain matters in
relation to the making of jurisdictional derogations
In
making a jurisdictional derogation, the AEMC must have regard to whether—
(a) the derogation provides for the orderly
transfer of the regulation of the electricity industry in a participating jurisdiction
under jurisdictional electricity legislation to the regulation of that industry
under the national electricity legislation; or
(b) the derogation continues existing
regulatory arrangements applying to the electricity industry in a participating
jurisdiction and the Minister of the participating jurisdiction requesting the
derogation has notified, in writing, the AEMC that he or she considers it
necessary and appropriate that the existing regulatory arrangements continue;
or
(c) the derogation is necessary to exempt, on
an ongoing basis, generating, transmission or distribution systems or other
facilities owned, controlled or operated in the participating jurisdiction to
which the derogation relates from complying with technical standards relating
to connection to the national electricity system set out in the Rules because
those systems or facilities, by reason of their design or construction, are
unable to comply with those standards.
Division 2—Initial National Electricity Rules
90—South Australian Minister to make initial National
Electricity Rules
(1) The Minister in right of the Crown of South
Australia administering Part 2 of the National Electricity (South Australia)
Act 1996 of South Australia may make Rules for or with respect to any
matter or thing referred to in section 34 and Schedule 1 to this Law.
(2) As
soon as practicable after making Rules under subsection (1), the Minister
referred to in that subsection must—
(a) publish notice of the making of the Rules
in the South Australian Government Gazette; and
(b) make the Rules publicly available.
(3) The notice referred to in
subsection (2)(a) must state the date on which the Rules commence
operation.
(4) The Rules made under subsection (1)
may only be made on the recommendation of the MCE.
(5) If the Minister referred to in
subsection (1) makes Rules under that subsection, the Minister cannot make
another Rule under that subsection.
Division 3—Procedure for the making of a Rule by the
AEMC
91—Initiation of making of a Rule
(1) The
AEMC may make a Rule at the request of any person, the MCE or the Reliability
Panel.
Note—
Section 34
and Schedule 1 to this Law specify the subject matter for Rules.
(2) Subject
to section 35, the AEMC must not make a Rule on its own initiative unless
it considers the Rule—
(a) corrects a minor error in the Rules; or
(b) involves a non-material change to the
Rules; or
(c) is in respect of any matter that is
prescribed by the Regulations as a matter on which it may make a Rule on its
own initiative.
(3) A Minister of a participating jurisdiction,
after consulting with the Ministers of the other participating jurisdictions,
may request the AEMC to make a jurisdictional derogation in respect of the
jurisdiction of which he or she is a Minister.
(4) The
Reliability Panel may only request the AEMC to make a Rule that relates to its
functions.
Note—
Section 38(2)
describes the functions of the Reliability Panel.
(5) A
person conferred a right, or on whom an obligation is imposed, under the Rules
(including a Registered participant) may request the AEMC to make a participant
derogation that relates to, as the case requires—
(a) that person; or
(b) a class of person of which that person is a
member.
(6) NEMMCO
may itself, or on behalf of itself and a Registered participant or a class of
Registered participant, request the AEMC to make a participant derogation that
relates to (as the case requires)—
(a) it; or
(b) it and the Registered participant; or
(c) it and the class of Registered participant
92—Content of requests for a Rule
(1) A
request for the making of a Rule—
(a) must contain the information prescribed by
the Regulations; and
(b) may be accompanied by a draft of the Rule
to be made.
(2) A request for the making of a participant
derogation must specify a date on which the participant derogation, if made,
will expire.
(3) A request for the making of a
jurisdictional derogation may specify a date on which the jurisdictional
derogation, if made, will expire.
93—More than one request in relation to same or
related subject matter
If the AEMC
receives more than one request for the making of a Rule in respect of the same
subject matter or subject matters that are related subject matters, the AEMC
may treat those requests as one request for the purposes of this Division.
94—Initial consideration of request for Rule
(1) As
soon as practicable after receiving a request for the making of a Rule, the
AEMC must consider whether—
(a) the request for the Rule appears to—
(i) contain the information prescribed by the
Regulations; and
(ii) not be misconceived or lacking in
substance; and
(b) the subject matter of the request appears
to be for or with respect to a matter in respect of which the AEMC may make a
Rule under this Law.
Note—
Section 34 and
Schedule 1 to this Law specify the subject matter for Rules.
(2) If the AEMC considers that, having regard
to the matters set out in subsection (1)(a) and (b), it should not take
any action under this Division in respect of the request for the making of the
Rule, the AEMC must make a decision to that effect and inform the person or
body, in writing, that requested the Rule of that decision.
(3) A
decision under subsection (2) must—
(a) set out the reasons for the decision; and
(b) be given to the person or body that made
the request without delay.
(4) If the AEMC considers that, having regard
to the matters set out in subsection (1)(a) and (b), it should take action
under this Division in respect of the request for the making of the Rule, the
AEMC must give notice of the request for the making of a Rule in accordance
with section 95.
95—Notice of proposed Rule
(1) As
soon as practicable after forming an intention to make an AEMC initiated Rule
or considering that it should take action under this Division in respect of a
request for the making of a Rule, the AEMC must publish—
(a) notice of the intention or request (as the
case requires); and
(b) a draft of the proposed Rule; and
(c) any other documents prescribed by the
Regulations.
(2) A
notice published under this section must—
(a) invite written submissions and comments
from any person or body in relation to the proposed Rule by the date specified
in the notice by the AEMC, being a date that is not less than 4 weeks after the
date the notice is published; and
(b) contain any other information prescribed by
the Regulations.
96—Non-controversial and urgent Rules
(1) Subject
to this section, if the AEMC considers that—
(a) an AEMC initiated Rule is a
non-controversial Rule; or
(b) a request for a Rule is a request for a
non-controversial Rule; or
(c) a request for a Rule is a request for an
urgent Rule,
the AEMC may make
the relevant Rule in accordance with this Division (except sections 98 to
101) and as if the period of time within which the final Rule determination in
respect of the relevant Rule must be published were 4 weeks from the date of
publication of the notice under section 95.
(2) Before making a Rule as set out in
subsection (1), the AEMC must include in a notice under section 95 a
statement to the effect that the AEMC may make the relevant Rule if the AEMC
does not receive a written request, and reasons, not to do so from any person
or body within 2 weeks of publication of that notice.
(3) The
AEMC must not make a Rule in accordance with this section if, following
publication of a notice under section 95 containing a statement to the
effect set out in subsection (2)—
(a) the AEMC receives a written request not to
do so; and
(b) the reasons set out in that request are
not, in its opinion, misconceived or lacking in substance.
(4) If
the AEMC is of the opinion that the reasons given by a person or body in a
written request for it not to make the non-controversial Rule or urgent Rule
are misconceived or lacking in substance, the AEMC must—
(a) make a decision to that effect; and
(b) give the person or body its reasons, in
writing, for that decision without delay.
(5) If the AEMC is of the opinion that the
reasons given by a person or body in a written request for it not to make the
non-controversial Rule or urgent Rule, are not misconceived or lacking in
substance, the AEMC must publish a notice to the effect that it will make the
relevant Rule in accordance with this Division (other than this section).
97—Right to make written submissions and comments
Any person or
body, within the period specified in a notice under section 95, may make a
written submission or comment in relation to the proposed Rule to which the
notice relates.
98—AEMC may hold public hearings before draft Rule
determination
(1) The AEMC may (but need not), at any time
after publication of a notice under section 95 and before making a draft
Rule determination, hold a hearing in relation to any proposed Rule.
(2) Notice
of a hearing held under this section must—
(a) be published; and
(b) contain the information prescribed by the
Regulations (if any).
99—Draft Rule determination
(1) Before
making a final Rule determination, but within 8 weeks after the date specified
in a notice under section 95, the AEMC must publish—
(a) a draft Rule determination in relation to
the proposed Rule; and
(b) notice of the draft Rule determination.
(2) A
draft Rule determination must contain—
(a) the reasons of the AEMC as to whether or
not it should make the proposed Rule or another Rule, including—
(i) the reasons of the AEMC as to whether it is
satisfied the proposed Rule or the other Rule (if any) will or is likely to
contribute to the achievement of the national electricity market objective; and
(ii) the reasons of the AEMC having regard to
any relevant MCE statement of policy principles; and
(iii) if the proposed Rule or the other Rule (if any)
is a proposed jurisdictional derogation, the reasons of the AEMC having regard
to the matters specified in section 89; and
(b) if the AEMC determines to make a Rule, a
draft of the Rule to be made; and
(c) any other matters that are prescribed by
the Regulations.
(3) The draft of the Rule to be made need not
be the same as the draft of the proposed Rule to which the notice under
section 95 relates.
(4) A
notice of the draft Rule determination must—
(a) invite written submissions and comments
from any person or body in relation to the determination within a period
specified by the AEMC, being a period not less than 6 weeks from the date of
publication of the notice; and
(b) include a statement to the effect that any
interested person or body may request, in writing within one week after the
publication of the notice, the AEMC to hold a hearing in accordance with
section 101; and
(c) contain any other information prescribed by
the Regulations.
100—Right to make written submissions and comments in
relation to draft Rule determination
Any person or
body, within the period specified in a notice under section 99(1), may
make a written submission or comment in relation to a draft Rule determination
to which the notice relates.
101—Pre-final Rule determination hearing may be held
(1) An interested person or body may request,
in writing, within one week after the publication of a notice under
section 99(1), the AEMC to hold a hearing in relation to a draft Rule
determination.
(2) Despite subsection (1), the AEMC may
decide not to a hold a hearing in relation to a draft Rule determination.
(3) If the AEMC decides not to hold a hearing
under this section, it must give the interested person or body that requested
the hearing its reasons, in writing, for declining that person's or body's
request.
(4) If
the AEMC agrees to the request to hold a hearing under this section, the AEMC
must—
(a) appoint a date (being not later than 3
weeks after the date of publication of the notice under section 99), time
and place for the holding of the hearing; and
(b) publish a notice of that date, time and
place.
102—Final Rule determination as to whether to make a
Rule
(1) The AEMC must publish a final Rule
determination as to whether to make a proposed Rule and notice of the final
Rule determination within 4 weeks after the close of the period for written
submissions or comments in relation to the draft Rule determination.
(2) A
final Rule determination must contain—
(a) the reasons of the AEMC as to whether or
not it should make a Rule, including—
(i) the reasons of the AEMC as to whether it is
satisfied the Rule will or is likely to contribute to the achievement of the
national electricity market objective; and
(ii) the reasons of the AEMC having regard to
any relevant MCE statement of policy principles; and
(iii) if the Rule is a jurisdictional derogation,
the reasons of the AEMC having regard to the matters specified in
section 89; and
(b) any other matters that are prescribed by
the Regulations.
(3) A notice of the final Rule determination
must contain the information prescribed by the Regulations.
103—Making of Rule
(1) Subject to this section, if the AEMC, in
its final Rule determination, determines to make a Rule, the AEMC must make the
relevant Rule as soon as practicable after the publication of the final Rule
determination.
(2) Notice of the making of the Rule must be
published in the South Australian Government Gazette as soon as
practicable after the making of the Rule.
(3) The Rule that is made in accordance with
subsection (1) need not be the same as the draft of the proposed Rule to
which a notice under section 95 relates or the draft of a Rule contained
in a draft Rule determination.
(4) In
the case of—
(a) a participant derogation; or
(b) a jurisdictional derogation where the
request for the derogation specified a date on which the derogation will
expire,
the AEMC must not
make the derogation unless that derogation specifies a date on which it will
expire.
104—Operation and commencement of Rule
A Rule made under
section 103 commences operation on the day the relevant notice is
published in the South Australian Government Gazette or on any day after
that day that is provided for in the relevant notice or the Rule.
105—Rule that is made to be published on website and
made available to the public
On
publication of a notice in accordance with section 103(2), the AEMC must,
without delay—
(a) publish the Rule on its website; and
(b) make copies of the Rule available to the
public at its offices.
106—Evidence of the National Electricity Rules
A
document purporting to be a copy of—
(a) the National Electricity Rules; or
(b) the initial National Electricity Rules; or
(c) an amendment to the initial National
Electricity Rules or the National Electricity Rules,
endorsed with a
certificate to which the seal of the AEMC has been duly affixed certifying the
document is such a copy, is evidence that the document is such a copy.
Division 4—Miscellaneous provisions relating to Rule
making by the AEMC
107—AEMC may extend certain periods of time specified
in Division 3
(1) Despite anything to the contrary in this
Part, the AEMC may, by notice, extend a period of time specified in Division 3
if the AEMC considers that a request for a Rule raises issues of sufficient
complexity or difficulty or there is a material change in circumstances such
that it is in the public interest that the relevant period of time specified in
Division 3 be extended.
(2) A
notice under subsection (1) must—
(a) be published; and
(b) set out the period of time specified in
Division 3 to be extended; and
(c) specify a new period of time to apply in
the place of the period of time specified in Division 3.
(3) The AEMC may only extend a period of time
under this section before the expiry of that time.
108—AEMC may publish written submissions and comments
unless confidential
(1) Subject
to this section, the AEMC may publish any information in any written submission
or comment given to it under this Part unless—
(a) the person or body who gave the
information, claims, when giving it to the AEMC, that it contains confidential
information; and
(b) the AEMC decides that the written
submission or comment contains confidential information.
(2) A written submission or comment given to
the AEMC under this Part that has been claimed under this section to contain
confidential information, and that the AEMC has decided contains confidential
information, may be published if that information is omitted.
(3) If information is omitted from a published
written submission or comment given to the AEMC under this Part as being
confidential information, a note to that effect must be included in the
submission or comment at the place in the submission or comment from which the
information is omitted.
Note—
Section 108 of
this Law permits the disclosure of confidential information for the purposes of
section 24(2) of the Australian Energy Market Commission Establishment
Act 2004 of South Australia.
Part 8—Safety and security of the National Electricity
System
109—Definitions
In this
Part—
jurisdictional
load shedding guidelines means guidelines prepared under
section 111;
NEMMCO load
shedding procedures means procedures developed under
section 112;
sensitive loads means
the loads or classes of loads specified as such in jurisdictional load shedding
guidelines.
110—Appointment of jurisdictional system security
coordinator
(1) A Minister of this jurisdiction may, for
the purposes of this Law and the Rules, appoint a person to be the
jurisdictional system security coordinator for this jurisdiction.
(2) An appointment under subsection (1)
must be in writing.
111—Jurisdictional system security coordinator to
prepare jurisdictional load shedding guidelines
(1) The
jurisdictional system security coordinator must, subject to the Rules, prepare,
maintain, and if necessary, update guidelines in relation to the shedding, and
restoration, of loads in this jurisdiction for—
(a) the purpose of enabling NEMMCO to maintain
power system security; or
(b) reasons of public safety.
(2) The
guidelines must specify—
(a) loads or classes of loads as sensitive
loads; and
(b) requirements in relation to the shedding
and restoration of loads that NEMMCO must comply with, in accordance with the
Rules, in the event that it is necessary to do so for NEMMCO to maintain power
system security, or for reasons of public safety.
(3) The
guidelines must also specify the following lists—
(a) a list of sensitive loads or classes of
sensitive loads in this jurisdiction—
(i) to be shed and restored and the order in
which those loads are to be shed or restored in the event that it is necessary
to do so for NEMMCO to maintain power system security, or for reasons of public
safety; and
(ii) which must not be shed, or the restoration
of which must not be prevented, without the prior approval of the
jurisdictional system security coordinator; and
(b) a list of loads or classes of loads (other
than sensitive loads) to be shed and restored in this jurisdiction and the
order in which those loads are to be shed or restored in the event that it is
necessary to do so for NEMMCO to maintain power system security, or for reasons
of public safety.
(4) The jurisdictional system security
coordinator must give a copy of the jurisdictional load shedding guidelines and
any updated guidelines to NEMMCO.
112—NEMMCO to develop load shedding procedures for
each participating jurisdiction
(1) NEMMCO
must, in accordance with the Rules, develop, maintain, and if necessary, update
procedures in relation to the manner in which loads or classes of loads
(including sensitive loads) will be shed or restored—
(a) in this jurisdiction in accordance with the
jurisdictional load shedding guidelines; and
(b) as between participating jurisdictions.
(2) NEMMCO must give to the jurisdictional
system security coordinator a copy of the NEMMCO load shedding procedures, and
any updated procedures, applicable to this jurisdiction.
(3) The procedures must be consistent with the
relevant jurisdictional load shedding guidelines.
113—NEMMCO and jurisdictional system security
coordinator to exchange load shedding information in certain circumstances
(1) For
the purpose of enabling NEMMCO to maintain power system security, or for
reasons of public safety, NEMMCO, and the jurisdictional system security
coordinator, may, between themselves, and with each of the jurisdictional
system security coordinators of the other participating jurisdictions, exchange
information relating to loads and classes of loads to be shed and restored in
this jurisdiction and the other participating jurisdictions in accordance with—
(a) the Rules; and
(b) jurisdictional load shedding guidelines;
and
(c) NEMMCO load shedding procedures.
(2) Information
exchanged under this section may also be given by NEMMCO, or the jurisdictional
system security coordinator, to a Minister of this jurisdiction—
(a) to enable the Minister to, if necessary—
(i) manage the safety and security of those
parts of the national electricity system in this jurisdiction; or
(ii) manage the safety and security of a gas
system in this jurisdiction; or
(b) for reasons of public safety.
(3) In
this section—
information
includes confidential information relating to loads or classes of loads given
to NEMMCO by a Registered participant in accordance with the Rules.
114—NEMMCO to ensure that the national electricity
system is operated in manner that maintains the supply to sensitive loads
NEMMCO must use
its reasonable endeavours to ensure that the national electricity system is
operated in a manner that maintains the supply to sensitive loads.
115—Shedding and restoring of loads
(1) Subject to subsection (2), if NEMMCO
considers that it is necessary for loads to be shed in this jurisdiction to
maintain power system security, or for reasons of public safety, NEMMCO may
direct the shedding or restoration of loads (including sensitive loads) in this
jurisdiction in accordance with the NEMMCO load shedding procedures developed
for this jurisdiction.
(2) NEMMCO
must use reasonable endeavours to obtain the approval of the jurisdictional system
security coordinator before directing the shedding, or preventing the
restoration of, sensitive loads or a class of sensitive loads that the
jurisdictional system security coordinator has listed in the jurisdictional
load shedding guidelines as requiring the coordinator's approval before—
(a) those loads or classes of loads may be
shed; or
(b) the restoration of those loads or classes
of loads may be prevented.
(3) The jurisdictional system security
coordinator must not unreasonably withhold the approval referred to in
subsection (2).
116—Actions that may be taken to ensure safety and
security of national electricity system
(1) NEMMCO
may, if it considers that it is necessary—
(a) to maintain power system security; or
(b) for reasons of public safety,
direct a
Registered participant, or authorise a person to direct a Registered
participant, or subject to subsection (2), authorise a person, to take one
or more relevant actions in accordance with the Rules.
(2) A person authorised under subsection (1)
must not take any relevant action unless the person has directed the Registered
participant to take the action and the Registered participant has failed to
take the action within a reasonable period.
(3) NEMMCO does not incur any civil monetary
liability for any relevant action taken by a Registered participant in
accordance with a direction given by it under this section unless the direction
is given in bad faith.
(4) A person who directs a Registered
participant to take a relevant action, or who takes a relevant action in
accordance with an authorisation under subsection (1), does not incur any
civil monetary liability for the action taken by the Registered participant or
by the person unless the person gives the direction, or takes the relevant action,
in bad faith.
(5) A Registered participant does not incur any
civil monetary liability for a relevant action taken in accordance with a
direction given to it under this section unless that action is taken in bad
faith
(6) In
this section—
civil monetary
liability means liability to pay damages or compensation or any
other amount ordered in a civil proceeding, but does not include liability to
pay a civil penalty under this Law, an infringement penalty under Division 5 of
Part 6 or the costs of a proceeding;
relevant
action means—
(a) to switch off, or re-route, a generator;
(b) to call equipment into service;
(c) to take equipment out of service;
(d) to commence operation or maintain, increase
or reduce active or reactive power output;
(e) to shut down or vary operation;
(f) to, in accordance with the Rules and any
procedures made in accordance with the Rules in relation to load shedding, shed
or restore load;
(g) to do any other act or thing necessary to
be done to maintain power system security or for reasons of public safety.
117—NEMMCO to liaise with Minister of this
jurisdiction and others during an emergency
(1) NEMMCO
must, if required to do so by reason, or as a result, of an emergency
direction, liaise with—
(a) a Minister or the jurisdictional system
security coordinator of this jurisdiction; or
(b) if the Minister or jurisdictional system
security coordinator has nominated another person as the person with whom
NEMMCO must liaise, that person.
(2) In
this section—
emergency direction means
any direction given or issued, or order given, under or in accordance with any
legislation of this jurisdiction, or instrument made under or for the purposes
of that legislation, during an emergency in this jurisdiction.
118—Obstruction of persons exercising certain powers
in relation to the safety and security of the national electricity system.
A
person must not, without reasonable excuse, obstruct or hinder a person in the
exercise of a power under section 116.
Penalty:
(a) in the case of a natural
person—$20 000;
(b) in the case of a body
corporate—$100 000.
Part 9—Immunities
119—Immunity of NEMMCO and network service providers
(1) NEMMCO or an officer or employee of NEMMCO
does not incur any civil monetary liability for an act or omission in the
performance or exercise, or purported performance or exercise, of a function or
power of NEMMCO under this Law or the Rules unless the act or omission is done
or made in bad faith or through negligence.
(2) A network service provider or an officer or
employee of a network service provider does not incur any civil monetary
liability for an act or omission in the performance or exercise, or purported
performance or exercise, of a system operations function or power unless the
act or omission is done or made in bad faith or through negligence.
(3) The civil monetary liability for an act or
omission of a kind referred to in subsection (1) or (2) done or made
through negligence may not exceed the prescribed maximum amount.
(4) The
Regulations may, for the purposes of subsection (3), without limitation—
(a) prescribe a maximum amount that is limited
in its application to persons, events, circumstances, losses or periods
specified in the Regulations;
(b) prescribe maximum amounts that vary in
their application according to the persons to whom or the events,
circumstances, losses or periods to which they are expressed to apply;
(c) prescribe the manner in which a maximum
amount is to be divided amongst claimants.
(5) NEMMCO or a network service provider may
enter into an agreement with a person varying or excluding the operation of a
provision of this section and, to the extent of that agreement, that provision
does not apply.
(6) This section does not apply to any
liability of an officer or employee of a body corporate to the body corporate.
(7) In
this section—
civil monetary
liability means liability to pay damages or compensation or any
other amount ordered in a civil proceeding, but does not include liability to
pay a civil penalty under this Law, an infringement penalty under Division 5 of
Part 6 or the costs of a proceeding;
network service
provider means a person who is registered as a network service
provider under this Law and the Rules;
officer, in
relation to a body corporate, includes a person who is an officer within the
meaning of section 9 of the Corporations Act 2001 of the Commonwealth;
system operations
function or power means a function or power prescribed as a
system operations function or power.
120—Immunity in relation to failure to supply
electricity
(1) A Registered participant or NEMMCO, or an
officer or employee of a Registered participant or NEMMCO, does not incur any
civil monetary liability for any partial or total failure to supply electricity
unless the failure is due to an act or omission done or made by the Registered
participant or NEMMCO, or the officer or employee of a Registered participant
or NEMMCO, in bad faith or through negligence.
(2) A Registered participant or NEMMCO may
enter into an agreement with a person varying or excluding the operation of
subsection (1) and, to the extent of that agreement, that subsection does not
apply.
(3) This
section does not apply—
(a) to NEMMCO or an officer or employee of
NEMMCO in relation to an act or omission in the performance or exercise, or
purported performance or exercise, of a function or power of NEMMCO under this
Law or the Rules; or
(b) to a network service provider or an officer
or employee of a network service provider in relation to an act or omission in
the performance or exercise, or purported performance or exercise, of a system
operations function or power; or
(c) to any liability of an officer or employee
of a body corporate to the body corporate.
(4) In
this section—
civil monetary
liability, network service provider, officer
and system operations function or power have the same meanings as
in section 119.
121—Immunity from personal liability of AEMC officials
(1) No personal liability attaches to an AEMC official
for an act or omission in good faith in the performance or exercise, or
purported performance or exercise of a function or power under this Law, the
Regulations or the Rules.
(2) A liability that would, but for
subsection (1), lie against an AEMC official lies instead against the
AEMC.
(3) In
this section—
AEMC
official means—
(a) a member of the AEMC;
(b) the chief executive of the AEMC;
(c) a
member of staff appointed by the AEMC.
Schedule
1—Subject matter for the National Electricity Rules
(section
34)
Registration
2 The exemption of persons from the
requirement to be Registered participants.
3 Prudential requirements to be met by
a person—
(a) before
being registered as a Registered participant; and
(b) as
a Registered participant.
Participant
fees
Wholesale
exchange
8 The methodology and formulae to be
applied in setting prices referred to in item 7.
Operation
of generation, transmission and distribution systems
12 The augmentation or expansion in the
capacity of transmission systems and distribution systems.
Transmission
system revenue and pricing
19 The economic framework and
methodologies to be applied by the AER for the purposes of item 18.
(a) a depreciation allowance for a regulated
transmission system operator; and
(b) operating costs of a regulated transmission
system operator; and
(c) an allowable rate of return on assets
forming part of a transmission system owned, controlled or operated by a
regulated transmission system operator.
24 The procedure for the making of a
transmission determination by the AER, including—
(a) the publication of notices by the AER; and
(b) the making of submissions, including by the
regulated transmission system operator to whom the transmission determination
will apply and by affected Registered participants (within the meaning of
section 16(3)); and
(c) the publication of draft and final
determinations and the giving of reasons; and
(d) the holding of pre-determination
conferences.
Distribution
system revenue and pricing
Metering
27 The metering of electricity to record
the production or consumption of electricity.
28 The registration of metering
installations used to meter electricity.
29 The regulation of persons providing
metering services relating to the metering of electricity.
Disputes
in relation to the Rules
30 Disputes under or in relation to the
Rules between persons, including—
(a) the appointment of a person, in accordance
with the Rules, to manage and facilitate the resolution of such disputes;
(b) the
appointment, by a person referred to in paragraph (a), of persons (including
mediators and arbitrators) to resolve such disputes;
(c) the
procedure for the conduct of such disputes;
(d) the
provision for appeals on questions of law against decisions of persons
appointed to resolve such disputes.
Miscellaneous
31 The calculation or estimation of use
of electricity.
33 Reviews by or on behalf of—
(a) the
AER, the AEMC or NEMMCO; or
(b) the
Reliability Panel or any other panel or committee established by the AEMC; or
(c) any
other body established, or person appointed, in accordance with the Rules.
34 The payment of money (including the
payment of interest)—
(a) for
the settlement of transactions for electricity or services purchased or supplied
through the wholesale exchange operated and administered by NEMMCO;
(b) to
and from a Rule fund (within the meaning of section 53);
(c) for
any service provided under the Rules in respect of which the Rules require
payment.
37 Any matter or thing relating to
electricity prescribed by the Regulations.
Schedule
2—Miscellaneous provisions relating to interpretation
(section 3)
Part
1—Preliminary
1—Displacement of Schedule by contrary intention
(1) The application of this Schedule to this
Law, the Regulations or other statutory instrument (other than the National
Electricity Rules) may be displaced, wholly or partly, by a contrary intention
appearing in this Law or the Regulations or that statutory instrument.
(2) The application of this Schedule to the
National Electricity Rules (other than clauses 32, 33, 34, 39, 42 and 43 of
this Schedule) may be displaced, wholly or partly, by a contrary intention
appearing in the National Electricity Rules.
Part
2—General
2—Law to be construed not to exceed legislative power
of Legislature
(1) This Law is to be construed as operating to
the full extent of, but so as not to exceed, the legislative power of the
Legislature of this jurisdiction.
(2) Without
limiting subclause (1), this Law does not purport to impose any duty on
the AER to perform a function if the imposition of the duty would be in excess
of the legislative power of the Legislature of this jurisdiction.
Note—
The term
"function" is defined in clause 10 to include "duty".
(3) If
a provision of this Law, or the application of a provision of this Law to a
person, subject matter or circumstance, would, but for this clause, be
construed as being in excess of the legislative power of the Legislature of this
jurisdiction—
(a) it is a valid provision to the extent to
which it is not in excess of the power; and
(b) the remainder of this Law, and the
application of the provision to other persons, subject matters or
circumstances, is not affected.
(4) Without
limiting subclause (3), if a provision of this Law or the application of this
Law to a person, subject matter or circumstance is in excess of the legislative
power of the Legislature of this jurisdiction because it purports to impose a
duty on the AER to perform a function or exercise a power or is otherwise
ineffective to impose such a duty, the provision has effect as if its operation
were expressly confined to—
(a) acts or omissions of corporations to which
section 51(xx) of the Constitution of the Commonwealth applies; or
(b) acts or omissions taking place in the
course of, or in relation to, trade or commerce between this jurisdiction and
places outside this jurisdiction (whether within or outside Australia).
(5) This clause applies to this Law in addition
to, and without limiting the effect of, any provision of this Law.
3—Every section to be substantive enactment
Every section of
this Law has effect as a substantive enactment without introductory words.
4—Material that is, and is not, part of Law
(1) The heading to a Chapter, Part, Division or
Subdivision into which this Law is divided is part of this Law.
(2) A Schedule to this Law is part of this Law.
(3) A heading to a section or subsection of
this Law does not form part of this Law.
(4) A note at the foot of a provision of this
Law does not form part of this Law.
5—References to particular Acts and to enactments
In this
Law—
(a) an Act of this jurisdiction may be cited—
(i) by its short title; or
(ii) in another way sufficient in an Act of this
jurisdiction for the citation of such an Act; and
(b) a Commonwealth Act may be cited—
(i) by its short title; or
(ii) in another way sufficient in a Commonwealth
Act for the citation of such an Act,
together with a
reference to the Commonwealth; and
(c) an
Act of another jurisdiction may be cited—
(i) by its short title; or
(ii) in another way sufficient in an Act of the
jurisdiction for the citation of such an Act,
together with a
reference to the jurisdiction.
6—References taken to be included in Act or Law
citation etc
(1) A
reference in this Law to an Act includes a reference to—
(a) the Act as originally enacted, and as
amended from time to time since its original enactment; and
(b) if the Act has been repealed and re enacted
(with or without modification) since the enactment of the reference, the Act as
re enacted, and as amended from time to time since its re enactment.
(2) A
reference in this Law to a provision of this Law or of an Act includes a
reference to—
(a) the provision as originally enacted, and as
amended from time to time since its original enactment; and
(b) if the provision has been omitted and re
enacted (with or without modification) since the enactment of the reference,
the provision as re enacted, and as amended from time to time since its re
enactment.
(3) Subclause (1) and (2) apply to a
reference in this Law to a law of the Commonwealth or another jurisdiction as
they apply to a reference in this Law to an Act and to a provision of an Act.
7—Interpretation best achieving Law's purpose
(1) In the interpretation of a provision of
this Law, the interpretation that will best achieve the purpose or object of
this Law is to be preferred to any other interpretation.
(2) Subclause (1) applies whether or not the
purpose is expressly stated in this Law.
8—Use of extrinsic material in interpretation
(1) In
this clause—
extrinsic
material means relevant material not forming part of this Law,
including, for example—
(a) material that is set out in the document
containing the text of this Law as printed by authority of the Government
Printer of South Australia; and
(b) a relevant report of a committee of the
Legislative Council or House of Assembly of South Australia that was made to
the Legislative Council or House of Assembly of South Australia before the
provision was enacted; and
(c) an explanatory note or memorandum relating
to the Bill that contained the provision, or any relevant document, that was
laid before, or given to the members of, the Legislative Council or House of
Assembly of South Australia by the member bringing in the Bill before the
provision was enacted; and
(d) the speech made to the Legislative Council
or House of Assembly of South Australia by the member in moving a motion that
the Bill be read a second time; and
(e) material in the Votes and Proceedings of
the Legislative Council or House of Assembly of South Australia or in any
official record of debates in the Legislative Council or House of Assembly of
South Australia; and
(f) a document that is declared by the
Regulations to be a relevant document for the purposes of this clause;
ordinary meaning means
the ordinary meaning conveyed by a provision having regard to its context in
this Law and to the purpose of this Law.
(2) Subject
to subclause (3), in the interpretation of a provision of this Law,
consideration may be given to extrinsic material capable of assisting in the
interpretation—
(a) if the provision is ambiguous or obscure,
to provide an interpretation of it; or
(b) if the ordinary meaning of the provision
leads to a result that is manifestly absurd or is unreasonable, to provide an
interpretation that avoids such a result; or
(c) in any other case, to confirm the
interpretation conveyed by the ordinary meaning of the provision.
(3) In
determining whether consideration should be given to extrinsic material, and in
determining the weight to be given to extrinsic material, regard is to be had
to—
(a) the desirability of a provision being
interpreted as having its ordinary meaning; and
(b) the undesirability of prolonging
proceedings without compensating advantage; and
(c) other relevant matters.
9—Compliance with forms
(1) If a form is prescribed or approved by or
for the purpose of this Law, strict compliance with the form is not necessary
and substantial compliance is sufficient.
(2) If
a form prescribed or approved by or for the purpose of this Law requires—
(a) the form to be completed in a specified
way; or
(b) specified information or documents to be
included in, attached to or given with the form; or
(c) the form, or information or documents
included in, attached to or given with the form, to be verified in a specified
way,
the form is not
properly completed unless the requirement is complied with.
Part
3—Terms and references
10—Definitions
In this
Law—
Act means
an Act of the Legislature of this jurisdiction;
affidavit, in
relation to a person allowed by law to affirm, declare or promise, includes
affirmation, declaration and promise;
amend
includes—
(a) omit or omit and substitute; or
(b) alter or vary; or
(c) amend by implication;
appoint
includes re appoint;
breach
includes fail to comply with;
business
day means a day that is not—
(a) a Saturday or Sunday;
(b) observed as a public holiday on the same
day in each of the participating jurisdictions;
calendar
month means a period starting at the beginning of any day
of one of the 12 named months and ending—
(a) immediately before the beginning of the
corresponding day of the next named month; or
(b) if there is no such corresponding day, at
the end of the next named month;
calendar year means
a period of 12 months beginning on 1 January;
commencement, in
relation to this Law or an Act or a provision of this Law or an Act, means the
time at which this Law, the Act or provision comes into operation;
confer, in
relation to a function, includes impose;
contravene
includes fail to comply with;
definition means
a provision of this Law (however expressed) that—
(a) gives a meaning to a word or expression; or
(b) limits or extends the meaning of a word or
expression;
document
includes—
(a) any paper or other material on which there
is writing; or
(b) any paper or other material on which there
are marks, figures, symbols or perforations having a meaning for a person
qualified to interpret them; or
(c) any disc, tape or other article or any
material from which sounds, images, writings or messages are capable of being
reproduced (with or without the aid of another article or device);
estate
includes easement, charge, right, title, claim, demand, lien or encumbrance,
whether at law or in equity;
expire
includes lapse or otherwise cease to have effect;
fail
includes refuse;
financial year means
a period of 12 months beginning on 1 July;
function
includes duty;
Gazette means
the Government Gazette of this jurisdiction;
instrument
includes a statutory instrument;
interest, in
relation to land or other property, means—
(a) a legal or equitable estate in the land or
other property; or
(b) a right, power or privilege over, or in
relation to, the land or other property;
make
includes issue or grant;
minor means
an individual who is under 18;
modification
includes addition, omission or substitution;
month means
a calendar month;
named month means
one of the 12 months of the year;
number means—
(a) a number expressed in figures or words; or
(b) a letter; or
(c) a combination of a number so expressed and
a letter;
oath, in
relation to a person allowed by law to affirm, declare or promise, includes
affirmation, declaration or promise;
office
includes position;
omit , in
relation to a provision of this Law or an Act, includes repeal;
party
includes a body politic or body corporate as well as an individual;
penalty
includes a civil penalty, forfeiture or punishment;
person
includes a body politic or body corporate as well as an individual;
power
includes authority;
prescribed means
prescribed by the Regulations;
printed
includes typewritten, lithographed or reproduced by any mechanical means;
proceeding means
a legal or other action or proceeding;
property means
any legal or equitable estate or interest (whether present or future, vested or
contingent, or tangible or intangible) in real or personal property of any
description (including money), and includes things in action;
provision , in
relation to this Law or an Act, means words or other matter that form or forms
part of this Law or the Act, and includes—
(a) a Part, Division, Subdivision, section,
subsection, paragraph, subparagraph, subsubparagraph or Schedule of or to this
Law or the Act; or
(b) a section, clause, subclause, item, column,
table or form of or in a Schedule to this Law or the Act; or
(c) the long title and any preamble to the Act;
record
includes information stored or recorded by means of a computer;
repeal
includes—
(a) revoke or rescind; or
(b) repeal by implication; or
(c) abrogate or limit the effect of the law or
instrument concerned; or
(d) exclude from, or include in, the
application of the law or instrument concerned, any person, subject matter or
circumstance;
sign
includes the affixing of a seal or the making of a mark;
statutory
declaration means a declaration made under an Act, or under a
Commonwealth Act or an Act of another jurisdiction, that authorises a
declaration to be made otherwise than in the course of a judicial proceeding;
statutory
instrument means the Regulations or an instrument made or in
force under this Law;
swear , in
relation to a person allowed by law to affirm, declare or promise, includes
affirm, declare or promise;
word
includes any symbol, figure or drawing;
writing
includes any mode of representing or reproducing words in a visible form.
11—Provisions relating to defined terms and gender and
number
(1) If this Law defines a word or expression,
other parts of speech and grammatical forms of the word or expression have
corresponding meanings.
(2) Definitions in or applicable to this Law
apply except so far as the context or subject matter otherwise indicates or
requires.
(3) In this Law, words indicating a gender
include each other gender.
(4) In
this Law—
(a) words in the singular include the plural;
and
(b) words in the plural include the singular.
12—Meaning of may and must etc
(1) In this Law, the word "may", or a
similar word or expression, used in relation to a power indicates that the
power may be exercised or not exercised, at discretion.
(2) In this Law, the word "must", or
a similar word or expression, used in relation to a power indicates that the
power is required to be exercised.
(3) This clause has effect despite any rule of
construction to the contrary.
13—Words and expressions used in statutory instruments
(1) Words and expressions used in a statutory
instrument have the same meanings as they have, from time to time, in this Law,
or relevant provisions of this Law, under or for the purposes of which the instrument
is made or in force.
(2) This clause has effect in relation to an
instrument except so far as the contrary intention appears in the instrument.
14—References to Minister
(1) In
this Law—
(a) a reference to a Minister is a reference to
a Minister of the Crown of this jurisdiction; and
(b) a reference to a particular Minister by
title, or to "the Minister" without specifying a particular Minister
by title, includes a reference to another Minister, or a member of the
Executive Council of this jurisdiction, who is acting for and on behalf of the
Minister.
(2) In
a provision of this Law, a reference to "the Minister", without
specifying a particular Minister by title is a reference to—
(a) the Minister of this jurisdiction
administering the provision; or
(b) if, for the time being, different Ministers
of this jurisdiction administer the provision in relation to different matters—
(i) if only one Minister of this jurisdiction
administers the provision in relation to the relevant matter, the Minister; or
(ii) if two or more Ministers of this
jurisdiction administer the provision in relation to the relevant matter, any
one of those Ministers; or
(c) if paragraph (b) does not apply and,
for the time being, two or more Ministers administer the provision, any one of
the Ministers.
(3) For
the removal of doubt, it is declared that if—
(a) a provision of this Law is administered by
two or more Ministers of this jurisdiction; and
(b) the provision requires or permits anything
to be done in relation to any of the Ministers,
the provision does
not require or permit it to be done in a particular case by or in relation to
more than one of the Ministers.
15—Production of records kept in computers etc
If a
person who keeps a record of information by means of a mechanical, electronic
or other device is required by or under this Law—
(a) to produce the information or a document
containing the information to a court, tribunal or person; or
(b) to make a document containing the
information available for inspection by a court, tribunal or person,
then, unless the
court, tribunal or person otherwise directs—
(c) the requirement obliges the person to
produce or make available for inspection, as the case may be, a document that
reproduces the information in a form capable of being understood by the court,
tribunal or person; and
(d) the production to the court, tribunal or
person of the document in that form complies with the requirement.
16—References to this jurisdiction to be implied
In this
Law—
(a) a reference to an officer, office or
statutory body is a reference to such an officer, office or statutory body in
and for this jurisdiction; and
(b) a reference to a locality or other matter
or thing is a reference to such a locality or other matter or thing in and of
this jurisdiction.
17—References to officers and holders of offices
In this Law, a
reference to a particular officer, or to the holder of a particular office,
includes a reference to the person for the time being occupying or acting in
the office concerned.
18—Reference to certain provisions of Law
If a
provision of this Law refers—
(a) to a Chapter, Part, section or Schedule by
a number and without reference to this Law, the reference is a reference to the
Chapter, Part, section or Schedule, designated by the number, of or to this
Law; or
(b) to a Schedule without reference to it by a
number and without reference to this Law, the reference, if there is only one
Schedule to this Law, is a reference to the Schedule; or
(c) to a Division, Subdivision, subsection,
paragraph, subparagraph, subsubparagraph, clause, subclause, item, column,
table or form by a number and without reference to this Law, the reference is a
reference to—
(i) the Division, designated by the number, of
the Part in which the reference occurs; and
(ii) the Subdivision, designated by the number,
of the Division in which the reference occurs; and
(iii) the subsection, designated by the number, of
the section in which the reference occurs; and
(iv) the paragraph, designated by the number, of
the section, subsection, Schedule or other provision in which the reference
occurs; and
(v) the paragraph, designated by the number, of
the clause, subclause, item, column, table or form of or in the Schedule in
which the reference occurs; and
(vi) the subparagraph, designated by the number,
of the paragraph in which the reference occurs; and
(vii) the subsubparagraph, designated by the
number, of the subparagraph in which the reference occurs; and
(viii) the section, clause, subclause, item, column,
table or form, designated by the number, of or in the Schedule in which the
reference occurs,
as the case
requires.
Part
4—Functions and powers
19—Performance of statutory functions
(1) If this Law confers a function or power on
a person or body, the function may be performed, or the power may be exercised,
from time to time as occasion requires.
(2) If this Law confers a function or power on
a particular officer or the holder of a particular office, the function may be
performed, or the power may be exercised, by the person for the time being
occupying or acting in the office concerned.
(3) If this Law confers a function or power on
a body (whether or not incorporated), the performance of the function, or the
exercise of the power, is not affected merely because of vacancies in the
membership of the body.
20—Power to make instrument or decision includes power
to amend or repeal
If this
Law authorises or requires the making of an instrument, decision or
determination—
(a) the power includes power to amend or repeal
the instrument, decision or determination; and
(b) the power to amend or repeal the
instrument, decision or determination is exercisable in the same way, and
subject to the same conditions, as the power to make the instrument, decision
or determination.
21—Matters for which statutory instruments may make
provision
(1) If
this Law authorises or requires the making of a statutory instrument in
relation to a matter, a statutory instrument made under this Law may make
provision for the matter by applying, adopting or incorporating (with or
without modification) the provisions of—
(a) an Act or statutory instrument; or
(b) another document (whether of the same or a
different kind),
as in force at a
particular time or as in force from time to time.
(2) If a statutory instrument applies, adopts
or incorporates the provisions of a document, the statutory instrument applies,
adopts or incorporates the provisions as in force from time to time, unless the
statutory instrument otherwise expressly provides.
(3) A
statutory instrument may—
(a) be of general or limited application;
(b) vary according to the persons, times,
places or circumstances to which it is expressed to apply.
(4) A statutory instrument may authorise a
matter or thing to be from time to time determined, applied or regulated by a
specified person or body.
(5) If this Law authorises or requires a matter
to be regulated by statutory instrument, the power may be exercised by
prohibiting by statutory instrument the matter or any aspect of the matter.
(6) If this Law authorises or requires
provision to be made with respect to a matter by statutory instrument, a
statutory instrument made under this Law may make provision with respect to a
particular aspect of the matter despite the fact that provision is made by this
Law in relation to another aspect of the matter or in relation to another
matter.
(7) A statutory instrument may provide for the
review of, or a right of appeal against, a decision made under the statutory
instrument, or this Law, and may, for that purpose, confer jurisdiction on any
court, tribunal, person or body.
(8) A statutory instrument may require a form
prescribed by or under the statutory instrument, or information or documents
included in, attached to or given with the form, to be verified by statutory
declaration.
(9) In
this clause—
statutory
instrument does not include the National Electricity Rules.
22—Presumption of validity and power to make
(1) All conditions and preliminary steps
required for the making of a statutory instrument are presumed to have been
satisfied and performed in the absence of evidence to the contrary.
(2) A statutory instrument is taken to be made
under all powers under which it may be made, even though it purports to be made
under this Law or a particular provision of this Law.
23—Appointments may be made by name or office
(1) If
this Law authorises or requires a person or body—
(a) to appoint a person to an office; or
(b) to appoint a person or body to exercise a
power; or
(c) to appoint a person or body to do another
thing,
the person or body
may make the appointment by—
(d) appointing a person or body by name; or
(e) appointing a particular officer, or the
holder of a particular office, by reference to the title of the office
concerned.
(2) An appointment of a particular officer, or
the holder of a particular office, is taken to be the appointment of the person
for the time being occupying or acting in the office concerned.
24—Acting appointments
(1) If
this Law authorises a person or body to appoint a person to act in an office,
the person or body may, in accordance with this Law, appoint—
(a) a person by name; or
(b) a particular officer, or the holder of a
particular office, by reference to the title of the office concerned,
to act in the
office.
(2) The appointment may be expressed to have
effect only in the circumstances specified in the instrument of appointment.
(3) The
appointer may—
(a) determine the terms and conditions of the
appointment, including remuneration and allowances; and
(b) terminate the appointment at any time.
(4) The appointment, or the termination of the
appointment, must be in, or evidenced by, writing signed by the appointer.
(5) The appointee must not act for more than
one year during a vacancy in the office.
(6) If
the appointee is acting in the office otherwise than because of a vacancy in
the office and the office becomes vacant, then, subject to subclause (2), the
appointee may continue to act until—
(a) the appointer otherwise directs; or
(b) the vacancy is filled; or
(c) the end of a year from the day of the
vacancy,
whichever happens
first.
(7) The appointment ceases to have effect if
the appointee resigns by writing signed and delivered to the appointer.
(8) While
the appointee is acting in the office—
(a) the appointee has all the powers and
functions of the holder of the office; and
(b) this Law and other laws apply to the
appointee as if the appointee were the holder of the office.
(9) Anything
done by or in relation to a person purporting to act in the office is not
invalid merely because—
(a) the occasion for the appointment had not
arisen; or
(b) the appointment had ceased to have effect;
or
(c) the occasion for the person to act had not
arisen or had ceased.
(10) If this Law authorises the appointer to
appoint a person to act during a vacancy in the office, an appointment to act
in the office may be made by the appointer whether or not an appointment has
previously been made to the office.
25—Powers of appointment imply certain incidental
powers
(1) If
this Law authorises or requires a person or body to appoint a person to an
office—
(a) the power may be exercised from time to
time as occasion requires; and
(b) the power includes—
(i) power to remove or suspend, at any time, a
person appointed to the office; and
(ii) power to appoint another person to act in
the office if a person appointed to the office is removed or suspended; and
(iii) power to reinstate or reappoint a person
removed or suspended; and
(iv) power to appoint a person to act in the
office if it is vacant (whether or not the office has ever been filled); and
(v) power to appoint a person to act in the
office if the person appointed to the office is absent or is unable to
discharge the functions of the office (whether because of illness or
otherwise).
(2) The power to remove or suspend a person
under subclause (1)(b) may be exercised even if this Law provides that the
holder of the office to which the person was appointed is to hold office for a
specified period.
(3) The power to make an appointment under
subclause (1)(b) may be exercised from time to time as occasion requires.
(4) An appointment under subclause (1)(b)
may be expressed to have effect only in the circumstances specified in the
instrument of appointment.
26—Delegation
(1) If
this Law authorises a person to delegate a function or power, the person may,
in accordance with this Law, delegate the power to—
(a) a person by name; or
(b) a particular officer, or the holder of a
particular office, by reference to the title of the office concerned.
(2) The
delegation—
(a) may be general or limited; and
(b) may be made from time to time; and
(c) may be revoked, wholly or partly, by the
delegator.
(3) The delegation, or a revocation of the
delegation, must be in, or evidenced by, writing signed by the delegator or if
the delegator is a body corporate, by a person authorised by the body corporate
for the purpose.
(4) A delegated function or power may be
exercised only in accordance with any conditions to which the delegation is
subject.
(5) The delegate may, in the exercise of a
delegated function or power, do anything that is incidental to the delegated
function or power.
(6) A delegated function or power that purports
to have been exercised by the delegate is taken to have been duly exercised by
the delegate unless the contrary is proved.
(7) A delegated function or power that is duly
exercised by the delegate is taken to have been exercised by the delegator.
(8) If, when exercised by the delegator, a
function or power is, under this Law, dependent on the delegator's opinion,
belief or state of mind in relation to a matter, the function or power, when
exercised by the delegate, is dependent on the delegate's opinion, belief or
state of mind in relation to the matter.
(9) If
a function or power is delegated to a particular officer or the holder of a
particular office—
(a) the delegation does not cease to have effect
merely because the person who was the particular officer or the holder of the
particular office when the power was delegated ceases to be the officer or the
holder of the office; and
(b) the function or power may be exercised by
the person for the time being occupying or acting in the office concerned.
(10) A function or power that has been delegated
may, despite the delegation, be exercised by the delegator.
27—Exercise of powers between enactment and
commencement
(1) If
a provision of this Law (the "empowering provision") that does not
commence on its enactment would, had it commenced, confer a power—
(a) to make an appointment; or
(b) to make a statutory instrument of a
legislative or administrative character; or
(c) to do another thing,
then—
(d) the power may be exercised; and
(e) anything may be done for the purpose of
enabling the exercise of the power or of bringing the appointment, instrument
or other thing into effect,
before the
empowering provision commences.
(2) If
a provision of an Act of South Australia (the "empowering provision")
that does not commence on its enactment would, had it commenced, amend a
provision of this Law so that it would confer a power—
(a) to make an appointment; or
(b) to make a statutory instrument of a
legislative or administrative character; or
(c) to do another thing,
then—
(d) the power may be exercised; and
(e) anything may be done for the purpose of
enabling the exercise of the power or of bringing the appointment, instrument
or other thing into effect,
before the
empowering provision commences.
(3) If—
(a) this Law has commenced and confers a power
to make a statutory instrument (the "basic instrument making power");
and
(b) a provision of an Act of South Australia
that does not commence on its enactment would, had it commenced, amend this Law
so as to confer additional power to make a statutory instrument (the
"additional instrument making power"),
then—
(c) the basic instrument making power and the
additional instrument making power may be exercised by making a single
instrument; and
(d) any provision of the instrument that
required an exercise of the additional instrument making power is to be treated
as made under subclause (2).
(4) If
an instrument, or a provision of an instrument, is made under
subclause (1) or (2) that is necessary for the purpose of—
(a) enabling the exercise of a power mentioned
in the subclause; or
(b) bringing an appointment, instrument or
other thing made or done under such a power into effect,
the instrument or
provision takes effect—
(c) on the making of the instrument; or
(d) on such later day (if any) on which, or at
such later time (if any) at which, the instrument or provision is expressed to
take effect.
(5) If—
(a) an appointment is made under
subclause (1) or (2); or
(b) an instrument, or a provision of an
instrument, made under subclause (1) or (2) is not necessary for a purpose
mentioned in subclause (4),
the appointment,
instrument or provision takes effect—
(c) on the commencement of the relevant
empowering provision; or
(d) on such later day (if any) on which, or at
such later time (if any) at which, the appointment, instrument or provision is
expressed to take effect.
(6) Anything done under subclause (1) or
(2) does not confer a right, or impose a liability, on a person before the
relevant empowering provision commences.
(7) After the enactment of a provision
mentioned in subclause (2) but before the provision's commencement, this
clause applies as if the references in subclause (2) and (5) to the
commencement of the empowering provision were references to the commencement of
the provision mentioned in subclause (2) as amended by the empowering
provision.
(8) In the application of this clause to a
statutory instrument, a reference to the enactment of the instrument is a
reference to the making of the instrument.
Part
5—Distance and time
28—Matters relating to distance and time
(1) In the measurement of distance for the
purposes of this Law, the distance is to be measured along the shortest road
ordinarily used for travelling.
(2) If
a period beginning on a given day, act or event is provided or allowed for a
purpose by this Law, the period is to be calculated by excluding the day, or
the day of the act or event, and—
(a) if the period is expressed to be a
specified number of clear days or at least a specified number of days, by
excluding the day on which the purpose is to be fulfilled; and
(b) in any other case, by including the day on
which the purpose is to be fulfilled.
(3) If the last day of a period provided or
allowed by this Law for doing anything is not a business day in the place in
which the thing is to be or may be done, the thing may be done on the next
business day in the place.
(4) If the last day of a period provided or
allowed by this Law for the filing or registration of a document is a day on
which the office is closed where the filing or registration is to be or may be
done, the document may be filed or registered at the office on the next day
that the office is open.
(5) If no time is provided or allowed for doing
anything, the thing is to be done as soon as possible, and as often as the
prescribed occasion happens.
(6) If, in this Law, there is a reference to
time, the reference is, in relation to the doing of anything in a jurisdiction,
a reference to the legal time in the jurisdiction.
Part
6—Service of documents
29—Service of documents and meaning of service by post
etc
(1) If
this Law requires or permits a document to be served on a person (whether the
expression "deliver", "give", "notify",
"send" or "serve" or another expression is used), the
document may be served—
(a) on a natural person—
(i) by delivering it to the person personally;
or
(ii) by leaving it at, or by sending it by post,
facsimile or similar facility to the last known address of the place of
residence or usual place of business of the person; or
(iii) by sending it electronically to that person;
or
(b) on a body corporate—
(i) by leaving it at the registered office or
usual place of business of the body corporate with an officer of the body
corporate; or
(ii) by sending it by post, facsimile or similar
facility to its registered office or its usual place of business; or
(iii) by sending it electronically to that body
corporate or an officer of the body corporate.
(2) Nothing
in subclause (1)—
(a) affects the operation of another law that
authorises the service of a document otherwise than as provided in the
subclause; or
(b) affects the power of a court or tribunal to
authorise service of a document otherwise than as provided in the subclause.
30—Meaning of service by post etc
(1) If
this Law requires or permits a document to be served by post (whether the
expression "deliver", "give", "notify",
"send" or "serve" or another expression is used), service—
(a) may be effected by properly addressing,
prepaying and posting the document as a letter; and
(b) is taken to have been effected at the time
at which the letter would be delivered in the ordinary course of post, unless
the contrary is proved.
(2) If this Law requires or permits a document
to be served by a particular postal method (whether the expression
"deliver", "give", "notify", "send" or
"serve" or another expression is used), the requirement or permission
is taken to be satisfied if the document is posted by that method or, if that
method is not available, by the equivalent, or nearest equivalent, method
provided for the time being by Australia Post.
Part
7—Effect of repeal, amendment or expiration
31—Time of Law, the Regulations or Rules ceasing to
have effect
If a
provision of this Law, the Regulations or the Rules is expressed—
(a) to expire on a specified day; or
(b) to remain or continue in force, or
otherwise have effect, until a specified day,
the provision has
effect until the last moment of the specified day.
32—Repealed Law, Regulation or Rule provisions not
revived
(1) If
a provision of this Law is repealed or amended by an Act of South Australia or
a provision of an Act of South Australia, the provision is not revived merely
because the Act or the provision of the Act—
(a) is later repealed or amended; or
(b) later expires.
(2) If
a provision of the Regulations or the Rules is repealed or amended by a
Regulation or a Rule, the provision is not revived merely because the
Regulation or Rule—
(a) is later repealed or amended; or
(b) later expires.
33—Saving of operation of repealed Law, Regulation or
Rule provisions
(1) The
repeal, amendment or expiry of a provision of this Law, the Regulations or the
Rules does not—
(a) revive anything not in force or existing at
the time the repeal, amendment or expiry takes effect; or
(b) affect the previous operation of the
provision or anything suffered, done or begun under the provision; or
(c) affect a right, privilege or liability
acquired, accrued or incurred under the provision; or
(d) affect a penalty incurred in relation to an
offence arising under the provision; or
(e) affect an investigation, proceeding or
remedy in relation to such a right, privilege, liability or penalty.
(2) Any such penalty may be imposed and
enforced, and any such investigation, proceeding or remedy may be begun,
continued or enforced, as if the provision had not been repealed or amended or
had not expired.
34—Continuance of repealed provisions
(1) If an Act of South Australia repeals some
provisions of this Law and enacts new provisions in substitution for the
repealed provisions, the repealed provisions continue in force until the new
provisions commence.
(2) If a Regulation or Rule repeals some provisions
of the Regulations or Rules and enacts new provisions in substitution for the
repealed provisions, the repealed provisions continue in force until the new
provisions commence.
35—Law and amending Acts to be read as one
This Law and all
Acts of this jurisdiction amending this Law are to be read as one.
Part
8—Offences under this Law
36—Penalty at end of provision
In this
Law, a penalty specified at the end of—
(a) a section (whether or not the section is
divided into subsections); or
(b) a subsection (but not at the end of a
section); or
(c) a section or subsection and expressed in
such a way as to indicate that it applies only to part of the section or
subsection,
indicates that an
offence mentioned in the section, subsection or part is punishable on
conviction or, if no offence is mentioned, a contravention of the section,
subsection or part constitutes an offence against the provision that is
punishable, on conviction, by a penalty not more than the specified penalty.
37—Penalty other than at end of provision
(1) In this Law, a penalty specified for an
offence, or a contravention of a provision, indicates that the offence is
punishable on conviction, or the contravention constitutes an offence against
the provision that is punishable, on conviction, by a penalty not more than the
specified penalty.
(2) This clause does not apply to a penalty to
which clause 36 applies.
38—Indictable offences and summary offences
(1) An offence against this Law that is not
punishable by imprisonment is punishable summarily.
(2) An offence against this Law that is
punishable by imprisonment is, subject to subclause (3), punishable on
indictment.
(3) If—
(a) a proceeding for an offence against this
Law that is punishable by imprisonment is instituted in a court of summary
jurisdiction; and
(b) the prosecutor requests the court to hear
and determine the proceeding,
the offence is
punishable summarily and the court must hear and determine the proceeding.
(4) A
court of summary jurisdiction must not—
(a) impose, in relation to a single offence
against this Law, a period of imprisonment of more than two years; or
(b) impose, in relation to offences against the
Law, cumulative periods of imprisonment that are, in total, more than five
years.
(5) Nothing in this clause renders a person
liable to be punished more than once in relation to the same offence.
39—Double jeopardy
(1) If
an act or omission constitutes an offence—
(a) under this Law as applied as a law of this
jurisdiction; and
(b) under this Law as applied as a law of
another jurisdiction,
and the offender
has been punished in relation to the offence under the law mentioned in
paragraph (b), the offender is not liable to be punished in relation to
the offence mentioned in paragraph (a).
(2) If
an act or omission constitutes—
(a) a breach of a civil penalty provision of
this Law as applied as a law of this jurisdiction; and
(b) a breach of a civil penalty provision of
this Law as applied as a law of another jurisdiction,
and the person in
breach of the civil penalty provision mentioned in paragraph (a) has been
punished in relation to the civil penalty provision mentioned in paragraph (b),
the person is not liable in relation to the breach of the civil penalty
provision mentioned in paragraph (a).
(3) In
subclause (2)—
civil penalty
provision has the same meaning as in section 58.
40—Aiding and abetting, attempts etc
(1) A person who aids, abets, counsels or
procures, or by act or omission is in any way directly or indirectly concerned
in or a party to, the commission of an offence against this Law is taken to
have committed that offence and is liable to the penalty for the offence.
(2) A person who attempts to commit an offence
against this Law commits an offence and is punishable as if the attempted
offence had been committed.
Part
9—Instruments under this Law
41—Schedule applies to statutory instruments
(1) This Schedule applies to a statutory
instrument, and to things that may be done or are required to be done under a
statutory instrument, in the same way as it applies to this Law, and things
that may be done or are required to be done under this Law, except so far as
the context or subject matter otherwise indicates or requires.
(2) The fact that a provision of this Schedule
refers to this Law and not also to a statutory instrument does not, by itself,
indicate that the provision is intended to apply only to this Law.
42—National Electricity Rules to be construed so as
not to exceed the legislative power of the Legislature of this jurisdiction or
the powers conferred by this Law
(1) The National Electricity Rules are to be
construed as operating to the full extent of, but so as not to exceed, the
legislative power of the Legislature of this jurisdiction or the power
conferred by this Law under which they are made.
(2) Without
limiting subclause (1), the National Electricity Rules do not purport to
impose any duty on the AER to perform a function if the imposition of the duty
would be in excess of the legislative power of the Legislature of this
jurisdiction.
Note—
The term
"function" is defined in clause 10 to include "duty".
(3) If
a provision of the National Electricity Rules, or the application of a
provision of the National Electricity Rules to a person, subject matter or
circumstance, would, but for this clause, be construed as being in excess of
the legislative power of the Legislature of this jurisdiction or the power
conferred by this Law under which it is made—
(a) it is a valid provision to the extent to
which it is not in excess of that power; and
(b) the remainder of the National Electricity
Rules, and the application of the provision to other persons, subject matters,
or circumstances, is not affected.
(4) Without
limiting subclause (3), if a provision of the National Electricity Rules
or the application of the National Electricity Rules to a person, subject
matter or circumstance is in excess of the legislative power of the Legislature
of this jurisdiction because it purports to impose a duty on the AER to perform
a function or exercise a power or is otherwise ineffective to impose such a
duty, the provision has effect as if its operation were expressly confined to—
(a) acts or omissions of corporations to which
section 51(xx) of the Constitution of the Commonwealth applies; or
(b) acts or omissions taking place in the
course of, or in relation to, trade or commerce between this jurisdiction and
places outside this jurisdiction (whether within or outside Australia).
(5) This clause applies to the National
Electricity Rules in addition to, and without limiting the effect of, any
provision of the National Electricity Rules, or of this Law under which they
are made.
43—Invalid Rules
(1) If
the Court orders (by declaration or otherwise) that a Rule is invalid, the
order of the Court does not—
(a) revive anything not in force or existing at
the time of the order of the Court; or
(b) affect the previous operation of the Rule
or anything suffered, done or begun under the Rule; or
(c) affect a right, privilege or liability
acquired, accrued or incurred under the Rule; or
(d) affect a penalty arising because of a
breach of the Rule; or
(e) affect an investigation, proceeding or
remedy in relation to such a right, privilege, liability or penalty.
(2) A penalty may be imposed and enforced, and
any such investigation, proceeding or remedy may be begun, continued or
enforced as if the Rule had not been ordered by the Court as invalid.
Schedule
3—Savings and transitionals
(section
4)
Part
1—General
1—Definitions
In this
Schedule—
ACCC means
the Australian Competition and Consumer Commission established by section 6A of
the Trade Practices Act 1974 of the Commonwealth;
Code participant has
the same meaning as in section 3 of the old National Electricity Law;
commencement day means
the day on which section 12 of the South Australian amending Act comes into
operation;
NECA means
National Electricity Code Administrator Limited ACN 073 942 775;
South Australian
amending Act means the National Electricity (South Australia)
(New National Electricity Law) Amendment Act 2005 of South Australia.
Note—
The Regulations
may also contain provisions of an application, savings or transitional nature.
Part
2—General savings provision
2—Saving of operation of old National Electricity Law
(1) Subject
to this Schedule, the repeal of the old National Electricity Law does not—
(a) revive anything not in force or existing at
the time the repeal takes effect; or
(b) affect the previous operation of the old
National Electricity Law or anything suffered, done or begun under or in
accordance with the old National Electricity Law; or
(c) affect a right, privilege or liability
acquired, accrued or incurred under the old National Electricity Law; or
(d) affect a penalty incurred in relation to an
offence arising under the old National Electricity Law or penalty incurred in
relation to a breach of a provision of the National Electricity Code; or
(e) affect an investigation, proceeding or
remedy in relation to such a right, privilege, liability or penalty.
(2) Subject to this Schedule, any such penalty
may be imposed and enforced, and any such investigation, proceeding or remedy
may be begun, continued or enforced, as if the old National Electricity Law had
not been repealed.
Note—
The substitution
of a Schedule to an Act repeals the Schedule.
Part
3—National Electricity Code changes
3—Current Code change and derogation proposals to be
dealt with under this Law
(1) In
this clause—
current
Code change proposal means a proposed change to the National
Electricity Code—
(a) that is not a derogation; and
(b) that NECA has not adopted and implemented
in accordance with the National Electricity Code as at the commencement day;
current Code
derogation proposal means an application for a derogation, or
request for an extension of the period for which a derogation has been granted,
that NECA has not granted in accordance with the National Electricity Code as
at the commencement day;
derogation has
the same meaning as in Chapter 10 of the National Electricity Code;
interested
party means—
(a) a Code participant; or
(b) a person who is an interested party within
the meaning of the National Electricity Code;
relevant
Code change step means a requirement under the National
Electricity Code that must be complied with for the purpose of—
(a) making a change to the National Electricity
Code; or
(b) making a derogation or extending the period
for which a derogation has been granted;
relevant
Rule-making step means a requirement under a provision of
Part 7 of this Law that the AEMC must comply with in the making of a Rule under
that Part.
(2) Subject to this clause, on the commencement
day every current Code change proposal is to be taken to be a request for the
making of a Rule under Part 7 of this Law and may be made by the AEMC in
accordance with that Part.
(3) Subject to this clause, on the commencement
day every current Code derogation proposal is to be taken to be a request for
the making of a participant derogation under Part 7 of this Law and may be made
by the AEMC in accordance with that Part.
(4) The AEMC may decide to dispense, or not
comply, with a relevant Rule-making step in respect of a current Code change
proposal or current Code derogation proposal if it is of the opinion that the
relevant Rule-making step duplicates or is consistent with a relevant Code
change step that has already been taken under the National Electricity Code.
(5) On
making a decision under subclause (4), the AEMC must publish a notice of
that decision—
(a) in a newspaper circulating generally
throughout Australia; and
(b) on its website.
Note—
A person aggrieved
by a decision of the AEMC under subclause (4) may apply to the Court under
section 70 for judicial review of the decision.
4—Current jurisdictional derogation proposals to be
made under this Law
(1) In
this clause—
current
jurisdictional derogation change proposal means a change to
a jurisdictional derogation in respect of which NECA has not published a notice
of the change in accordance with clause 9.1.1(h) of the National Electricity
Code;
jurisdictional
derogation has the same meaning as in clause 9.1.1 of the
National Electricity Code;
relevant
jurisdictional derogation change step means a
requirement under Chapter 9 of the National Electricity Code that must be
complied with for the purpose of making a change to a jurisdictional
derogation;
relevant
Rule-making step means a requirement under a provision of
Part 7 of this Law that the AEMC must comply with in the making of a Rule under
that Part.
(2) Subject to this clause, on the commencement
day, every current jurisdictional derogation change proposal is to be taken to
be a request for the making of a jurisdictional derogation under Part 7 of this
Law and may be made by the AEMC in accordance with that Part.
(3) The AEMC may decide to dispense, or not
comply, with a relevant Rule-making step in respect of a current jurisdictional
derogation change proposal if it is of the opinion that the relevant Rule-making
step duplicates or is consistent with a relevant jurisdictional derogation
change step that has already been undertaken under Chapter 9 of the National
Electricity Code.
(4) On
making a decision under subclause (3), the AEMC must publish a notice of
that decision—
(a) in a newspaper circulating generally
throughout Australia; and
(b) on its website.
Note—
A person aggrieved
by a decision of the AEMC under subclause (3) may apply to the Court under
section 70 for judicial review of the decision.
Part
4—Registration
5—Code participants deemed to be Registered
participants
A Code
participant (other than NEMMCO) registered under the National Electricity Code
immediately before the commencement day is, on that day, deemed to be—
(a) a Registered participant; and
(b) registered under this Law and the National
Electricity Rules in the same category of registration as the category of
registration that the Code participant was registered under National
Electricity Code immediately before that day.
6—Exemptions
On the
commencement day—
(a) an exemption given by NEMMCO under clause
2.2.1(c) of the National Electricity Code in force immediately before that day
is deemed to be an exemption granted under section 12(5);
(b) an exemption granted by NECA under clause
2.5.1(d) of the National Electricity Code in force immediately before that day
is deemed to be an exemption granted under section 13(3).
Part
5—References to the National Electricity Code and specific provisions or terms
7—References to the National Electricity Code
Unless the context
otherwise requires, on and from the commencement day, every reference in a
document (however described) to the National Electricity Code is deemed to be a
reference to the National Electricity Rules.
8—References to provisions of the National Electricity
Code
Unless the context
otherwise requires, on and from the commencement day, every reference to a
provision of the National Electricity Code in a document (however described) is
deemed to be a reference to the provision of the National Electricity Rules
that corresponds to that provision of the National Electricity Code.
9—References to Code participants
(1) Unless the context otherwise requires, on
and from the commencement day, every reference in a document (however
described) to a Code participant (other than NEMMCO) within the meaning of the
old National Electricity Law is deemed to be a reference to a Registered
participant.
(2) Unless the context otherwise requires, on
and from the commencement day, every reference in a document (however
described) to a Code participant (within the meaning of the old National
Electricity Law) that is NEMMCO is deemed to be a reference to NEMMCO.
Part
6—Investigations and proceedings
10—Investigations into breaches and possible breaches
of the Code
(1) On and from the commencement day, a NECA
investigation may be conducted and completed by the AER in accordance with this
Law, the Regulations and the Rules as if that investigation were commenced by
the AER under this Law, the Regulations and the Rules.
(2) In
this clause—
NECA
investigation means an investigation into a breach or
possible breach of the National Electricity Code by NECA under the old National
Electricity Law and National Electricity Code that—
(a) has been commenced by NECA before the
commencement day; and
(b) has not been completed by NECA before the
commencement day.
Part
7—Funds
11—Civil penalties fund
(1) On the commencement day, all money standing
to the credit of the civil penalties fund immediately before that day vests in
the AEMC.
(2) In
this clause—
civil penalties
fund has the same meaning as in section 66 of the old
National Electricity Law.
Part
8—Other
12—Continuation of Reliability Panel
(1) On
the commencement day—
(a) the persons appointed under clause 8.8 of
the National Electricity Code, and comprising the Reliability Panel immediately
before that day, are deemed to be the persons appointed to comprise the
Reliability Panel established under section 38 ; and
(b) the Reliability Panel established under
section 38 is deemed to be the same body as the Reliability Panel
established under clause 8.8 of the National Electricity Code.
(2) However, despite anything to the contrary
in the National Electricity Rules, the persons deemed to be appointed to
comprise the Reliability Panel under subclause (1) must, unless they
earlier resign from the Reliability Panel, cease to comprise the Reliability
Panel on the day that is 6 months after the commencement day.
(3) To avoid doubt, each of the persons who
cease to be appointed to comprise the Reliability Panel by operation of
subclause (2), or earlier resign as contemplated by subclause (2),
are eligible to be reappointed to the Reliability Panel in accordance with
section 38 and the National Electricity Rules.
13—Jurisdictional system security coordinator
On the
commencement day, the Jurisdictional Co-ordinator appointed by the Minister of
this jurisdiction under clause 4.3.2(e) of the National Electricity Code is
deemed to be appointed as the jurisdictional system security coordinator under
section 110.
14—Rights under certain change of law provisions in
agreements or deeds not to be triggered
(1) The repeal of the old National Electricity
Law and the commencement of this Law and the initial National Electricity Rules
is not to be regarded as a change of law (however defined) under any agreement
or deed in effect on the commencement day.
Note—
The substitution
of a Schedule to an Act repeals the Schedule.
(2) Subclause (1) applies despite any provision
in any agreement or deed to the contrary.
15—Certain undertakings to cease effect on commencement
day
(1) Any deed entered into by a Code participant
for the purposes of clause 2.8.2 of the National Electricity Code and in effect
immediately before the commencement day, ceases to have effect on that day.
(2) Subclause (1) does not affect a right,
privilege or liability acquired, accrued or incurred under a deed referred to
in that subclause, or under the National Electricity Code by force of a deed
referred to in that subclause, except as otherwise provided by the Regulations.
Part
9—Tasmanian participation in the national electricity market
16—Jurisdictional derogations relating to Tasmania's
entry into national electricity market
(1) Despite
anything to the contrary in this Law, the Regulations, the Rules or the Australian
Energy Market Commission Establishment Act 2004 of South Australia,
the Minister of the Crown in right of Tasmania nominated under section 6(2)
may, in writing, direct the AEMC to make a jurisdictional derogation that is
substantially the same as the changes to the National Electricity Code—
(a) authorised by the ACCC under Part VII of
the Trade Practices Act 1974 of the Commonwealth in the determination of the
ACCC entitled "Tasmanian Derogations and Vesting Contract – Tasmania's NEM
entry", dated 14 November 2001; and
(b) in any determination of the ACCC varying
the authorisation referred to in paragraph (a).
(2) The AEMC must, despite anything to the
contrary in this Law, the Regulations, the Rules or the Australian Energy
Market Commission Establishment Act 2004 of South Australia, make the
jurisdictional derogation as soon as practicable after being given a direction
under subclause (1).
(3) In making the jurisdictional derogation
under subclause (2), the AEMC need not comply with Division 3 of Part 7 of
this Law (other than sections 103(2), 104 and 105).
17—Definition of national electricity system to permit
Tasmania to participate in national electricity market before commissioning of
Basslink
(1) Despite anything to the contrary in this
Law, the Regulations or the Rules, on and from the commencement day and until
the relevant day, every reference in this Law, the Regulations or the Rules to
the interconnected transmission and distribution system is to be read as
including a reference to the interconnected transmission and distribution
system in the State of Tasmania.
(2) The Minister in right of the Crown of South
Australia administering Part 2 of the National Electricity (South Australia)
Act 1996 of South Australia may, on being satisfied that Basslink will
connect the electricity grids of the States of Tasmania and Victoria on a
particular day, publish notice of that day in the South Australian
Government Gazette.
(3) In
this clause—
relevant day means
the day notified under subclause (2);
Basslink has the same meaning as in the Electricity Supply Industry Act 1995 of Tasmania.