Provision	Section heading
Section 20(2)	Kinds of customer retail contracts
Section 22(1) and (3)	Obligation to make offer to small customers
Section 23(1)	Standing offer prices
Section 25(1)	Adoption of form of standard retail contract
Section 27	Obligation to comply with standard retail contract
Section 38	Requirement for explicit informed consent for certain transactions
Section 43(2) and (3)(b)	Customer hardship policies
Section 50(1)	Payment plans
Section 53(2)	Energy Marketing Rules
Section 57	Contractual arrangements for use of prepayment meter systems
Section 59(1)	Persons on life support equipment
Section 63	AER information gathering powers for pricing guidelines and comparator
Section 66	Obligation to provide customer connection services
Section 69(1)	Adoption of form of deemed standard connection contract
Section 71(1)	Obligations to comply with deemed standard connection contract and to bill retailer
Section 88	Requirement for authorisation or exemption
Section 103(8)	Deciding transfer application
Section 105(9)	Surrender of retailer authorisation
Section 106	Transfer of customers following surrender
Section 108	Transfer of customers following revocation
Section 112(2)	Conditions
Section 120(11)	Revocation process—retailer authorisations and exemptions
Section 143(2)(a)	Compliance requirements following service of RoLR notice
Section 156	Compliance with RoLR regulatory information notices
Section 274(1)	Obligation of regulated entities to provide information and data about compliance
Section 276(1), (2) and (4)	Compliance audits by regulated entities
Section 282(1)	Obligation of regulated entities to provide information and data about performance

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

5—Meaning of customer and associated terms

(1) A customer is a person—

(a) to whom energy is sold for premises by a retailer; or

(b) who proposes to purchase energy for premises from a retailer.

(2) A small customer is a customer—

(a) who is a residential customer; or

(b) who is a business customer who consumes energy at business premises below the upper consumption threshold.

(3) A large customer is a business customer who consumes energy at business premises at or above the upper consumption threshold.

(4) A small market offer customer is a small customer who is a business customer who consumes energy at or above the lower consumption threshold.

6—Provisions relating to consumption thresholds for business customers

(1) This section applies for the purposes of the consumption thresholds referred to in section 5.

(2) The National Regulations may—

(a) determine or make provision for determining the upper consumption thresholds and lower consumption thresholds for business customers; and

(b) prescribe a procedure for reviewing consumption thresholds so determined.

(3) The upper consumption thresholds may apply (in relation to the provision of customer retail services to a business customer) on the basis of an aggregation of 2 or more business premises of a business customer in accordance with the Rules.

(4) Without limitation—

(a) National Regulations made for the purposes of subsection (2); and

(b) Rules made for the purposes of subsection (3),

may differ in their application to different classes of business customers or different regulatory requirements, or both.

7—Classification and reclassification of customers

The Rules may make provision for or with respect to the classification and reclassification of customers, including, for example—

(a) whether a person is a residential customer by reference to whether the person purchases energy principally for personal, household or domestic use at premises; or

(b) whether a business customer is a small customer or a large customer; or

(c) whether a business customer is a small market offer customer.

8—Interpretation generally

(1) Schedule 2 to the NGL applies to this Law, the National Regulations and the Rules and any other statutory instrument made under this Law in the same way as it applies to the NGL and the regulations, rules and any other statutory instruments made under the NGL.

(2) For that purpose—

(a) (without limiting subsection (1)) a reference in that Schedule to the NGL or NGR (however expressed) is taken to be a reference to this Law or the Rules respectively; and

(b) clauses 2, 29, 40(3) and 52, and Part 7 of that Schedule are taken to be omitted; and

(c) the definition of business day in clause 10 is taken to be omitted.

Note—

See section 320 of this Law which applies instead of clauses 2 and 52 of Schedule 2 to the NGL.

Division 2—Matters relating to participating jurisdictions

9—Participating jurisdictions

The State of South Australia, the Commonwealth, each of the States of New South Wales, Victoria, Queensland and Tasmania, and the Australian Capital Territory are participating jurisdictions for the purposes of this Law.

10—Ministers of participating jurisdictions

The Ministers of the participating jurisdictions are—

(a) the Minister of the Crown in right of South Australia administering Part 2 of the National Energy Retail Law (South Australia) Act 2010 of South Australia; and

(b) the Ministers of the Crown in right of the other participating jurisdictions administering the laws of those jurisdictions that substantially correspond to Part 2 of the National Energy Retail Law (South Australia) Act 2010 of South Australia; and

(c) the Commonwealth Minister.

11—Local area retailers

(1) The regulations under the application Act of a participating jurisdiction must nominate a retailer as a local area retailer for that jurisdiction for the purposes of this Law.

(2) One or more retailers may be nominated for a jurisdiction.

(3) A nomination of a retailer may be made for any or all of the following:

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

(b) specified premises or a specified class of premises;

(c) specified customers or a specified class of customers.

(4) A nomination of a retailer may relate to electricity or gas or both.

12—Nominated distributors

(1) The regulations under an application Act of a participating jurisdiction may nominate an entity (being an entity that is licensed or otherwise authorised under jurisdictional energy legislation of that jurisdiction) to provide customer connection services as a nominated distributor for the purposes of this Law.

(2) A nomination of an entity may be made for any or all of the following:

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

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

(3) A nomination of an entity has the effect of applying this Law and the Rules (in whole or in part as specified in the regulations and with any specified modifications) to the entity as if it were a distributor within the meaning of this Law, and references in this Law and the Rules to a distributor are accordingly taken to include references to the nominated distributor.

Division 3—National energy retail objective and policy principles

13—National energy retail objective

The objective of this Law is to promote efficient investment in, and efficient operation and use of, energy services for the long term interests of consumers of energy with respect to price, quality, safety, reliability and security of supply of energy.

14—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 performance and exercise by the AEMC of its functions and powers in—

(a) making a Rule; or

(b) conducting a review under section 232.

(2) Before issuing a statement of policy principles, the MCE must be satisfied that the statement is consistent with the national energy retail 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.

Division 4—Operation and effect of National Energy Retail Rules

15—Rules to have force of law

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

Division 5—Application of this Law and the Rules to forms of energy

16—Application of Law and Rules to energy

(1) This Law and the Rules apply to—

(a) the sale and supply of electricity or gas or both to customers; and

(b) a retailer to the extent the retailer sells electricity or gas or both; and

(c) a distributor to the extent the distributor supplies electricity or gas or both.

(2) References in this Law and the Rules to energy are to be construed accordingly.

(3) Nothing in this section affects the application of provisions of this Law or the Rules to persons who are neither retailers nor distributors.

Division 6—Miscellaneous

17—Extraterritorial operation of Law

It is the intention of the Parliament of this jurisdiction that the operation of this Law is to, as far as possible, include operation in relation to the following:

(a) things situated in or outside the territorial limits of this jurisdiction;

(b) acts, transactions and matters done, entered into or occurring in or outside the territorial limits of this jurisdiction;

(c) things, acts, transactions and matters (wherever situated, done, entered into or occurring) that would, apart from this Law, be governed or otherwise affected by the law of another jurisdiction.

18—Law binds the State

(1) This Law binds the State.

(2) In this section—

State means the Crown in right of this jurisdiction, and includes—

(a) the Government of this jurisdiction; and

(b) a Minister of the Crown in right of this jurisdiction; and

(c) a statutory corporation, or other entity, representing the Crown in right of this jurisdiction.

Part 2—Relationship between retailers and small customers

Division 1—Preliminary

19—Application of this Part

(1) This Part applies to the relationship between retailers and small customers.

(2) This Part, other than Division 12, does not apply to or affect the relationship between retailers and large customers.

(3) This Part does not apply to business customers of a retailer who aggregate 2 or more business premises in accordance with the Rules.

Division 2—Customer retail contracts generally

20—Kinds of customer retail contracts

(1) There are 2 kinds of customer retail contracts, as follows:

(a) standard retail contracts;

(b) market retail contracts.

(2) A retailer cannot provide customer retail services to small customers under any other kind of contract or arrangement.

Note—

This subsection is a civil penalty provision.

(3) This section does not affect deemed customer retail arrangements under Division 9.

(4) This section does not affect RoLR deemed small customer retail arrangements under Part 6.

Division 3—Standing offers and standard retail contracts for small customers

21—Model terms and conditions

The Rules must set out model terms and conditions for standard retail contracts (referred to in this Division as the model terms and conditions).

22—Obligation to make offer to small customers

(1) A retailer must make an offer (a standing offer) to provide customer retail services to small customers for whom it is the designated retailer—

(a) at the standing offer prices; and

(b) under the retailer’s form of standard retail contract.

Note—

This subsection is a civil penalty provision.

(2) The Rules may provide for the manner and form in which a standing offer is to be made.

(3) Without limiting the power to make Rules relating to the manner and form in which a standing offer is to be made, a designated retailer must publish the terms and conditions of the standing offer on the retailer’s website.

Note—

This subsection is a civil penalty provision.

(4) A designated retailer must comply with the terms and conditions of the retailer’s standing offer.

(5) A designated retailer is not obliged to make a standing offer to a small customer if the customer’s premises are not, or are not proposed to be, connected to a distributor’s distribution system.

Note—

Section 31 provides for the satisfaction of a designated retailer’s obligation to make a standing offer by making an offer to certain small customers to sell energy under a market retail contract.

23—Standing offer prices

(1) Publication of standing offer prices

A retailer must publish its standing offer prices on its website, and the standing offer prices so published remain in force until varied in accordance with this section.

Notes—

1 A standing offer price may be a regulated price under jurisdictional energy legislation.

2 This subsection is a civil penalty provision.

(2) Variation of standing offer prices

A retailer may vary the standing offer prices from time to time, but a variation has no effect unless—

(a) it is made in accordance with the requirements (if any) of jurisdictional energy legislation; and

(b) the variation (or the standing offer prices as varied) is published on the retailer’s website.

(3) Publication and notification of variation

A retailer must:

(a) publish the variation (or the standing offer prices as varied) on the retailer’s website; and

(b) publish a notice about the variation in a newspaper circulating in the participating jurisdictions in which the retailer has small customers, notifying customers that—

(i) there has been a variation; and

(ii) the variation (or the standing offer prices as varied) is published on the retailer’s website; and

(c) inform each affected customer of the variation when the retailer sends the next bill to the customer.

(4) Commencement of variation on specified date

Unless subsection (5) applies, a variation of the standing offer prices takes effect on and from the date specified in the variation.

(5) Limitations on commencement of variation

A variation of the standing offer prices takes effect—

(a) if the date specified in the variation is before or within the period of 6 months starting with the date the last variation took effect (or, if the standing offer prices have not previously been varied, the period of 6 months since the date of publication of the standing offer prices)—on the date that immediately follows the 6-month period; or

(b) if the date specified in the variation is before or within the period of 10 business days starting with the first business day after the date on which the variation was published—on the date that immediately follows the 10-day period.

If both paragraphs (a) and (b) are applicable and the dates mentioned in those paragraphs are different, the variation takes effect on the later of those dates.

Note—

A retailer is not subject to subsection (5) in respect of a variation of its standing offer prices as a result of a RoLR cost recovery scheme under Part 6 (see section 167(6)).

(6) Notification to AER

A retailer must, as soon as practicable, notify the AER of details of the standing offer prices and any variation of the standing offer prices in the manner and form required by the AER Retail Pricing Information Guidelines.

(7) Publication by AER

The AER must, as soon as practicable after being notified by a retailer, publish the standing offer prices or any variation of the standing offer prices on the AER’s website, but failure to do so does not affect the operation or effect of the standing offer prices or any variation.

24—Presentation of standing offer prices

(1) A retailer must—

(a) present its standing offer prices (including any variation of those prices) in accordance with the AER Retail Pricing Information Guidelines; and

(b) without limitation, present those prices in accordance with those guidelines when publishing, advertising or notifying the AER of those prices or any variation.

(2) The retailer must present its standing offer prices (including any variation of those prices) prominently on its website and in any other relevant material provided by the retailer in accordance with those guidelines.

Note—

See section 61 for the AER Retail Pricing Information Guidelines.

25—Adoption of form of standard retail contract

(1) Adoption and publication

A retailer must adopt a form of standard retail contract and publish it on the retailer’s website.

Note—

This subsection is a civil penalty provision.

(2) Rules

The Rules may make provision for or with respect to the adoption, form and contents of forms of standard retail contracts, and in particular may provide for the manner of adoption and publication of forms of standard retail contracts by retailers.

(3) Adoption without alteration except as permitted or required

A retailer’s form of standard retail contract—

(a) must adopt the relevant model terms and conditions with no alterations, other than permitted alterations or required alterations; and

(b) if there are any required alterations—must include those required alterations.

(4) Permitted alterations

Permitted alterations are—

(a) alterations specifying details relating to identity and contact details of the retailer; and

(b) minor alterations that do not change the substantive effect of the model terms and conditions; and

(c) alterations of a kind specified or referred to in the Rules.

(5) Required alterations

Required alterations are—

(a) alterations that the Rules require to be made to the retailer’s form of standard retail contract in relation to matters relating to specific jurisdictions; and

(b) alterations of a kind specified or referred to in the Rules.

(6) Definition

In this section—

alterations includes omissions and additions.

26—Formation of standard retail contract

(1) A designated retailer’s form of standard retail contract takes effect as a contract between the retailer and a small customer when the customer—

(a) requests the provision of customer retail services at premises under the retailer’s standing offer; and

(b) complies with the requirements specified in the Rules as pre-conditions to the formation of standard retail contracts.

(2) A designated retailer cannot decline to enter into a standard retail contract if the customer makes the request and complies with the requirements referred to in subsection (1).

27—Obligation to comply with standard retail contract

A designated retailer must comply with the obligations imposed on the retailer under the terms and conditions of a standard retail contract between the retailer and a small customer.

Note—

This section is a civil penalty provision.

28—Variation of standard retail contract

(1) Variation of form of standard retail contract—permitted alterations

A retailer may vary the terms and conditions of the retailer’s form of standard retail contract by making permitted alterations.

(2) Variation of form of standard retail contract—required alterations

A retailer must vary the terms and conditions of the retailer’s form of standard retail contract by making required alterations, and must do so by the date specified in the relevant Rule referred to in section 237(4).

(3) Permitted alterations

Permitted alterations are—

(a) alterations specifying details relating to identity and contact details of the retailer; and

(b) minor alterations that do not change the substantive effect of the model terms and conditions; and

(c) alterations of a kind specified or referred to in the Rules.

(4) Required alterations

Required alterations are—

(a) alterations that the Rules require to be made to the retailer’s form of standard retail contract in relation to matters relating to specific jurisdictions; and

(b) alterations to a term or condition that is already adopted by the retailer so as to make the adopted term or condition consistent with the model terms and conditions as currently required by the Rules; and

(c) alterations of a kind specified or referred to in the Rules.

(5) When variation takes effect on existing contracts

A variation of the retailer’s form of standard retail contract takes effect as a variation of an existing standard retail contract between the retailer and a customer on and from the date on which the retailer publishes the variation on the retailer’s website or a later date specified in the published variation.

(6) Definition

In this section—

alterations includes omissions and additions.

29—Standard retail contract to be consistent with model terms and conditions

(1) The terms and conditions (whether original or varied) of a standard retail contract have no effect to the extent of any inconsistency with the model terms and conditions as currently in force and any required alterations.

(2) If there is such an inconsistency, the model terms and conditions or required alterations (as the case requires) apply instead to the extent of the inconsistency.

30—Duration of standard retail contract

A standard retail contract between a designated retailer and a small customer for the provision of customer retail services to the premises of the small customer remains in force until the standard retail contract is terminated in accordance with this Law, the Rules or the contract.

31—Satisfaction of designated retailer’s obligation to make standing offer by making market offer to certain small customers

(1) A designated retailer may fulfill its obligation to make a standing offer to a small market offer customer (or any class of small market offer customers) by making an offer to provide customer retail services under a market retail contract.

(2) If—

(a) such an offer is made to a small market offer customer in accordance with the Rules; and

(b) the customer declines to enter into a market retail contract,

the designated retailer may, but is not obliged to, make a standing offer to the customer.

32—Rules

Without limiting the power to make Rules, the Rules may make provision for or with respect to standard retail contracts generally, including but not limited to the following:

(a) procedures for small customers requesting the provision of customer retail services in accordance with the standing offer;

(b) information that retailers may require of small customers requesting the provision of customer retail services in accordance with the standing offer;

(c) the responsibilities of retailers in responding to requests for the provision of customer retail services in accordance with the standing offer;

(d) the conditions to be complied with by small customers in respect of the formation of standard retail contracts.

Division 4—Market retail contracts for small customers

33—Formation of market retail contracts

A small customer and a retailer may, subject to and in accordance with this Division and section 147, negotiate and enter into a market retail contract for the provision of—

(a) customer retail services; and

(b) any other services,

as agreed between the small customer and the retailer.

34—Minimum requirements for market retail contracts

(1) The Rules may set out—

(a) minimum requirements that are to apply in relation to small customers who purchase energy under a market retail contract; and

(b) minimum requirements that are to apply in relation to the terms and conditions of market retail contracts.

(2) A retailer must ensure that the terms and conditions of a market retail contract are not inconsistent with the applicable minimum requirements set out in the Rules. However, this subsection does not prevent a higher level of service than those minimum requirements from being provided.

(3) A market retail contract may contain terms and conditions dealing with other matters, other than terms or conditions that the Rules provide must not be included in the contract.

(4) A market retail contract must contain additional terms or conditions that the Rules require to be included in the contract in relation to matters relating to specific jurisdictions.

(5) A retailer who sells energy to a small customer under a market retail contract must comply with the requirements of the Rules referred to in subsection (1).

35—Variation of market retail contract

Any variation of the terms and conditions of a market retail contract must not be inconsistent with the requirements of the Rules in relation to the variation of market retail contracts.

36—Market retail contract to be consistent with minimum requirements of the Rules

(1) The terms and conditions (whether original or varied) of a market retail contract have no effect to the extent of any inconsistency with any relevant minimum requirements of the Rules as currently in force.

(2) If there is such an inconsistency, the minimum requirements apply instead to the extent of the inconsistency (unless the terms and conditions provide for a higher level of service to the customer).

37—Presentation of market offer prices

(1) A retailer must—

(a) present its market offer prices (including any variation of those prices) in accordance with the AER Retail Pricing Information Guidelines; and

(b) without limitation, present those prices in accordance with those guidelines when publishing, advertising or notifying the AER of those prices or any variation.

(2) The retailer must present its market offer prices (including any variation of those prices) prominently on its website and in any other relevant material provided by the retailer in accordance with those guidelines.

Note—

See section 61 for the AER Retail Pricing Information Guidelines.

Division 5—Explicit informed consent

38—Requirement for explicit informed consent for certain transactions

A retailer must obtain the explicit informed consent of a small customer for the following transactions:

(a) except as provided by sections 103(7), 105(8) and under Part 6, the transfer of the customer to the retailer from another retailer;

(b) the entry by the customer into a market retail contract with the retailer;

(c) without limiting paragraph (b), the entry by the customer into a prepayment meter market retail contract with the retailer;

(d) other transactions specified in this Law or the Rules as requiring explicit informed consent.

Notes—

1 See section 41 for the consequences of not obtaining explicit informed consent as required.

2 This section is a civil penalty provision.

39—Nature of explicit informed consent

(1) Explicit informed consent to a transaction is consent given by a small customer to a retailer where—

(a) the retailer, or a person acting on behalf of the retailer, has clearly, fully and adequately disclosed all matters relevant to the consent of the customer, including each specific purpose or use of the consent; and

(b) the customer gives the consent to the transaction in accordance with subsection (2); and

(c) any requirements prescribed by the Rules for the purposes of this subsection have been complied with.

(2) Explicit informed consent requires the consent to be given by the small customer—

(a) in writing signed by the customer; or

(b) verbally, so long as the verbal consent is evidenced in such a way that it can be verified and made the subject of a record under section 40; or

(c) by electronic communication generated by the customer.

40—Record of explicit informed consent

(1) A retailer must—

(a) create a record of each explicit informed consent required by this Division and provided by a small customer; and

(b) retain the record for at least 2 years.

(2) The record must be in such a format and include such information as will enable—

(a) the AER to verify the retailer’s compliance with the relevant requirements of this Part and the Rules relating to explicit informed consent; and

(b) the retailer to answer enquiries from a small customer relating to the customer’s explicit informed consent.

(3) A retailer must, on request by a small customer and at no charge, provide the customer with access to a copy of the record of any explicit informed consent given by the customer and then retained by the retailer.

41—No or defective explicit informed consent

(1) A transaction referred to in section 38 between a retailer and small customer is void if it is established, in accordance with subsection (2) and any applicable provisions of the Rules, that explicit informed consent as required by this Division was not obtained.

(2) It is established that the required explicit informed consent was not obtained if—

(a) the customer raises the issue with the retailer either by asserting that the consent was not obtained or by requesting production of a record of the consent; and

(b) the issue is so raised within 12 months after the date of the transaction; and

(c) the retailer—

(i) admits that the consent was not obtained; or

(ii) does not produce a satisfactory record of the informed consent as soon as practicable, but within 10 business days, after the issue is so raised.

(3) Subject to subsections (4) and (5), the retailer cannot recover any amount for any energy supplied as a result of the void transaction.

(4) If the void transaction did not involve the transfer of the customer to the retailer from another retailer, the customer is only liable to pay the retailer any charges that would have been payable for the sale and supply of energy if the void transaction had not occurred.

(5) If the void transaction did involve the transfer of the customer to the retailer (the new retailer) from another retailer (the original retailer)—

(a) the customer is (subject to paragraph (b)) liable to pay the original retailer all charges for the sale and supply of energy as if the void transaction had not occurred and the sale and supply had occurred with the original retailer being the customer’s retailer; and

(b) to the extent that the customer has paid the new retailer charges for the sale and supply of energy as a consequence of the void transaction—

(i) the customer is entitled to set off the amount of those payments against any amounts payable under paragraph (a); and

(ii) the new retailer must pay the set off amounts to the original retailer; and

(iii) the original retailer is entitled to recover those set off amounts from the new retailer in a court of competent jurisdiction; and

(c) nothing in this section prevents the original retailer from proceeding by action for loss or damage suffered because of the void transaction; and

(d) the customer is not liable to the new retailer for any loss or damage arising because the transaction is void or arising from payments the new retailer has to pay the original retailer because the transaction is void.

42—Rules

The Rules may make provision for or with respect to explicit informed consent in relation to small customers, including but not limited to procedures for establishing that explicit informed consent as required was not obtained and the consequences of not obtaining explicit informed consent as required.

Division 6—Customer hardship

43—Customer hardship policies

(1) The purpose of a retailer’s customer hardship policy is to identify residential customers experiencing payment difficulties due to hardship and to assist those customers to better manage their energy bills on an ongoing basis.

(2) A retailer must—

(a) within 3 months of being granted a retailer authorisation—

(i) develop a customer hardship policy in respect of residential customers of the retailer; and

(ii) submit it to the AER for approval under this Division; and

(b) publish the policy, as approved by the AER, on the retailer’s website as soon as practicable after it has been approved; and

(c) maintain and implement the policy.

Note—

This subsection is a civil penalty provision.

(3) If, as a result of the exercise of the AER’s functions and powers under section 204, the AER forms the view that a retailer’s customer hardship policy requires review—

(a) the AER may direct the retailer to review the policy and make variations in accordance with any requirements set out by the AER; and

(b) the retailer must—

(i) vary the policy in accordance with the AER’s requirements; and

(ii) submit it to the AER for approval under this Division; and

(iii) publish the policy, as approved by the AER, on the retailer’s website as soon as practicable after it has been approved; and

(iv) maintain and implement the policy.

Note—

Subsection (3)(b) is a civil penalty provision.

(4) A retailer may vary its customer hardship policy independently of a direction referred to in subsection (3) but only if the variation has been approved by the AER under this Division and the varied policy has been published on the retailer’s website after the AER has approved the variation under this Division.

(5) A reference in this Division to varying a customer hardship policy extends to replacing a policy with another customer hardship policy.

44—Minimum requirements for customer hardship policy

The minimum requirements for a customer hardship policy of a retailer are that it must contain—

(a) processes to identify residential customers experiencing payment difficulties due to hardship, including identification by the retailer and self-identification by a residential customer; and

(b) processes for the early response by the retailer in the case of residential customers identified as experiencing payment difficulties due to hardship; and

(c) flexible payment options (including a payment plan and Centrepay) for the payment of energy bills by hardship customers; and

(d) processes to identify appropriate government concession programs and appropriate financial counselling services and to notify hardship customers of those programs and services; and

(e) an outline of a range of programs that the retailer may use to assist hardship customers; and

(f) processes to review the appropriateness of a hardship customer’s market retail contract in accordance with the purpose of the customer hardship policy; and

(g) processes or programs to assist customers with strategies to improve their energy efficiency, where such processes or programs are required by a local instrument; and

(h) any variations specified or of a kind specified by the AER; and

(i) any other matters required by the Rules.

45—Approval of customer hardship policy or variation

(1) The AER must approve a customer hardship policy (or variation) submitted to the AER for approval if the AER is satisfied that the policy (or the policy as varied)—

(a) contains the minimum requirements for a customer hardship policy set out in section 44; and

(b) will or is likely to contribute to the achievement of the purpose referred to in section 43(1).

(2) If it is not so satisfied, the AER may—

(a) indicate to the retailer in what respects it considers the customer hardship policy (or variation) as submitted is deficient and request the retailer to submit another customer hardship policy (or variation); or

(b) approve the customer hardship policy (or variation) with alterations agreed to by the retailer so that the AER is satisfied as to the matters referred to in subsection (1)(a) and (b).

(3) The AER must, in considering whether to approve a customer hardship policy under subsection (1), have regard to the following principles:

(a) that the supply of energy is an essential service for residential customers;

(b) that retailers should assist hardship customers by means of programs and strategies to avoid de-energisation (or disconnection) solely due to an inability to pay energy bills;

(c) that de-energisation (or disconnection) of premises of a hardship customer due to inability to pay energy bills should be a last resort option;

(d) that residential customers should have equitable access to hardship policies, and that those policies should be transparent and applied consistently.

46—Obligation of retailer to communicate customer hardship policy

A retailer must, in accordance with the Rules, inform a residential customer of the retailer’s customer hardship policy where it appears to the retailer that non-payment of an energy bill is due to the customer experiencing payment difficulties due to hardship.

47—General principle regarding de-energisation (or disconnection) of premises of hardship customers

A retailer must give effect to the general principle that de-energisation (or disconnection) of premises of a hardship customer due to inability to pay energy bills should be a last resort option.

48—Consistency of market retail contract with hardship policy

(1) This section applies if a residential customer who is on a market retail contract is or becomes a hardship customer.

(2) The terms and conditions of the market retail contract have no effect to the extent of any inconsistency with the application of the retailer’s customer hardship policy to that customer.

(3) The retailer must ensure that the customer may continue to be provided with customer retail services under a customer retail contract in accordance with the Rules.

49—Rules

(1) The Rules may make provision for or with respect to—

(a) hardship customers; and

(b) the development, submission, approval, publication, maintenance and implementation of customer hardship policies and variations of customer hardship policies.

(2) The AEMC must, in addition to section 236, have regard to the purpose set out in section 43(1) when making Rules as referred to in subsection (1)(b).

Division 7—Payment plans

50—Payment plans

(1) A retailer must offer and apply payment plans for—

(a) hardship customers; and

(b) other residential customers experiencing payment difficulties if the customer informs the retailer in writing or by telephone that the customer is experiencing payment difficulties or the retailer otherwise believes the customer is experiencing repeated difficulties in paying the customer’s bill or requires payment assistance.

Note—

This subsection is a civil penalty provision.

(2) A retailer must comply with applicable requirements of the Rules relating to payment plans including how they are offered, but need not provide a payment plan in circumstances specified in the Rules.

51—Debt recovery

A retailer must not commence proceedings for the recovery of a debt relating to the sale and supply of energy from a residential customer if—

(a) the customer continues to adhere to the terms of a payment plan or other agreed payment arrangement; or

(b) the retailer has failed to comply with the requirements of—

(i) its customer hardship policy in relation to that customer; or

(ii) this Law and the Rules relating to non-payment of bills, payment plans and assistance to hardship customers or residential customers experiencing payment difficulties.

52—Rules

The Rules may make provision for or with respect to payment plans for small customers.

Division 8—Energy marketing

Note—

The Telecommunications Act 1997, the Do Not Call Register Act 2006 and the Australian Consumer Law set out in Schedule 2 to the Competition and Consumer Act 2010 of the Commonwealth may also apply to persons carrying out energy marketing activities.

53—Energy Marketing Rules

(1) The Rules may make provision for or with respect to the carrying out of energy marketing activities. Any such rules are referred to as the Energy Marketing Rules.

(2) A person who carries out energy marketing activities must comply with the Energy Marketing Rules.

Note—

This subsection is a civil penalty provision.

(3) Without limiting subsection (2), a failure of a person who is an associate of a retailer or distributor to comply with the Energy Marketing Rules is taken to be a failure of the retailer or distributor (as the case may be) to comply with the Energy Marketing Rules.

Division 9—Deemed customer retail arrangements

54—Deemed customer retail arrangement for new or continuing customer without customer retail contract

(1) An arrangement (a deemed customer retail arrangement) is taken to apply between the financially responsible retailer for energised premises and—

(a) a move-in customer; or

(b) a carry-over customer.

(2) The deemed customer retail arrangement comes into operation when—

(a) in the case of a move-in customer—the customer starts consuming energy at the premises; or

(b) in the case of a carry-over customer—the customer’s previously current retail contract terminates.

(3) The deemed customer retail arrangement ceases to be in operation if a customer retail contract is formed in relation to the premises, but this subsection does not affect any rights or obligations that have already accrued under the deemed customer retail arrangement.

(4) Subsection (1) does not apply where the customer consumes energy at the premises by fraudulent or illegal means.

(5) If the customer consumes energy at the premises by fraudulent or illegal means—

(a) the customer is nevertheless liable to pay the standing offer prices of the financially responsible retailer for the premises in respect of the energy so consumed; and

(b) the financially responsible retailer may estimate and issue a bill for the charges payable and recover those charges in accordance with those standing offer prices as a debt in a court of competent jurisdiction; and

(c) payment or recovery of any such charges is not a defence to an offence relating to obtaining energy by fraudulent or illegal means.

(6) A move-in customer or carry-over customer is required to contact a retailer and take appropriate steps to enter into a customer retail contract as soon as practicable.

55—Terms and conditions of deemed customer retail arrangements

(1) The terms and conditions of a deemed customer retail arrangement are the terms and conditions of the retailer’s standard retail contract.

(2) The prices applicable to a deemed customer retail arrangement are the retailer’s standing offer prices.

(3) The Rules may make provision for or with respect to deemed customer retail arrangements, and in particular may supplement or modify the terms and conditions of deemed customer retail arrangements.

Division 10—Prepayment meter systems

56—Use of prepayment meter systems only in jurisdictions where permitted

(1) A person may sell energy using a prepayment meter system only within jurisdictions where its use is permitted under subsection (2).

(2) A local instrument of a participating jurisdiction may permit the sale of energy to small customers using a prepayment meter system within that jurisdiction.

57—Contractual arrangements for use of prepayment meter systems

(1) A retailer may only provide customer retail services to small customers using a prepayment meter system under a market retail contract.

(2) Accordingly, a retailer must not provide customer retail services to small customers using a prepayment meter system under a standard retail contract.

Note—

This section is a civil penalty provision.

58—Use of prepayment meter systems to comply with energy laws

(1) A retailer who provides customer retail services to a small customer using a prepayment meter system must comply with the provisions of the energy laws relating to the use of prepayment meter systems.

(2) Without limiting subsection (1), a retailer who provides customer retail services to a small customer using a prepayment meter system must ensure that the prepayment meter market retail contract complies with the requirements for both—

(a) market retail contracts set out in the Rules, except to the extent a contrary intention is expressed in the Rules; and

(b) prepayment meter market retail contracts set out in the Rules.

59—Persons on life support equipment

(1) A retailer must not enter into a prepayment meter market retail contract with a small customer in relation to premises where one or more persons require life support equipment.

Note—

This subsection is a civil penalty provision.

(2) If a small customer with a prepayment meter market retail contract in relation to premises notifies the retailer that one or more persons at the premises require life support equipment, the retailer must make immediate arrangements for—

(a) the removal of the prepayment meter system at no cost to the small customer; and

(b) the installation of a standard meter at no cost to the small customer; and

(c) the provision of information to the small customer about, and a general description of, the customer retail contracts available to the customer.

(3) In this section—

installation of a standard meter to replace a prepayment meter system includes the conversion of the prepayment meter system to a standard operating mode so that the prepayment meter system operates as a standard meter;

removal of a prepayment meter system includes rendering the system non-operational;

standard meter, in relation to a particular small customer, means a metering installation of the type that would ordinarily be installed at the premises of the customer.

60—Rules

The Rules may make provision for or with respect to the provision of customer retail services involving the use of a prepayment meter system.

Division 11—AER Retail Pricing Information Guidelines and price comparator

61—AER Retail Pricing Information Guidelines for presentation of standing and market offer prices

(1) The AER may, in accordance with the retail consultation procedure, make and amend guidelines (AER Retail Pricing Information Guidelines).

(2) The purpose of the AER Retail Pricing Information Guidelines is to provide guidance to retailers in the presentation of standing offer prices and market offer prices, and thereby assist small customers to consider and compare standing offer prices and market offer prices offered by retailers.

(3) Without limitation, the AER Retail Pricing Information Guidelines may specify any or all of the following:

(a) the manner and form in which details of standing offer prices and market offer prices are to be presented when publishing, advertising or notifying the AER of those prices or any variation;

(b) the types of market offers to be provided for the purposes of the price comparator, including without limitation, by reference to areas, classes of small customers or tariff classes;

(c) any additional matters that the AER considers necessary or convenient to assist customers to consider and compare standing offer prices and market offer prices offered by retailers.

62—Price comparator

(1) This section applies in relation to this jurisdiction only if and to the extent a local instrument of this jurisdiction declares that this section applies in relation to this jurisdiction.

(2) The AER must develop and make available on a website a price comparator.

(3) The purpose of a price comparator is to assist a small customer to compare—

(a) the standing offer price available to that customer; and

(b) market offer prices that are generally available to classes of small customers in this jurisdiction,

in accordance with the AER Retail Pricing Information Guidelines.

(4) A price comparator must make clear to small customers that it only provides a guide.

(5) A price comparator may, in addition to the information about the price of the standing offers and market offers listed in the comparator, include such other information as the AER considers will achieve the purpose of a price comparator.

(6) Nothing in this Law prevents the AER developing and making available a single price comparator for a jurisdiction that compares prices for the provision of both electricity and gas.

(7) The AER must update the price comparator information as soon as practicable after a retailer informs the AER of any variations to the retailer’s standing offer price or relevant market offer price.

(8) In the development and updating of a price comparator, the AER must undertake such consultation as it considers appropriate.

(9) A difference between information made available under a price comparator and a retailer’s standing offer price, market offer prices or any variation to those prices does not affect the operation of that retailer’s prices or variations to those prices.

Note—

For example, there may be a delay in updating information on the price comparator service.

63—AER information gathering powers for pricing guidelines and comparator

A retailer must submit to the AER, in the manner and form (including by the date or dates) required by the AER Retail Pricing Information Guidelines, information and data relating to—

(a) the presentation of standing offer prices and market offer prices that are generally available to classes of small customers in a jurisdiction (including any variation of the prices); and

(b) if and to the extent a local instrument of this jurisdiction so declares—the purposes of a price comparator for this jurisdiction.

Notes—

1 This section is a civil penalty provision.

2 The AER is subject to Division 3 of Part 8 of this Law and section 44AAF of the Competition and Consumer Act 2010 of the Commonwealth in respect of the disclosure of confidential information it receives.

Division 12—Large customers—responsibility for energy consumed

64—Large customer consuming energy at premises

If a large customer consumes energy at premises without an appropriate arrangement between the customer and a retailer for payment of charges for the energy—

(a) the financially responsible retailer is entitled to charge the customer an amount for the energy at the rate the retailer considers would have been charged had such an appropriate arrangement been in place; and

(b) that amount, to the extent it is not paid to the retailer, is a debt owing by the customer to the retailer and may be recovered in a court of competent jurisdiction.

Part 3—Relationship between distributors and customers

Division 1—Preliminary

65—Application of this Part

This Part applies to the relationship between distributors and customers.

Note—

The term “customer” covers both small customers and large customers.

Division 2—Obligation to provide customer connection services

66—Obligation to provide customer connection services

(1) A distributor must, subject to and in accordance with the energy laws, provide customer connection services for the premises of a customer—

(a) who requests those services; and

(b) whose premises are connected, or who is seeking to have those premises connected, to the distributor’s distribution system.

Note—

The Rules may provide that a retailer may arrange customer connection services.

(2) The customer connection services must be provided to a customer in accordance with the relevant customer connection contract.

Note—

This section is a civil penalty provision.

Division 3—Customer connection contracts generally

67—Kinds of customer connection contracts

There are 3 kinds of customer connection contracts, as follows:

(a) deemed standard connection contracts, which are for—

(i) small customers; and

(ii) large customers for whom there is no applicable deemed AER approved standard connection contract;

(b) deemed AER approved standard connection contracts, which are for large customers;

(c) negotiated connection contracts, which are for small and large customers.

Note—

Where a new connection or connection alteration is required, the connection contract requirements are contained—

(a) for electricity—in Chapter 5A of the NER; or

(b) for gas—in Part 12A of the NGR.

Division 4—Deemed standard connection contracts

68—Model terms and conditions

The Rules must set out model terms and conditions for deemed standard connection contracts (referred to in this Division as the model terms and conditions).

69—Adoption of form of deemed standard connection contract

(1) Adoption and publication

A distributor must adopt a form of deemed standard connection contract and publish it on the distributor’s website.

Note—

This subsection is a civil penalty provision.

(2) Rules

The Rules may make provision for or with respect to the adoption, form and contents of forms of deemed standard connection contracts, and in particular may provide for the manner of adoption and publication of forms of deemed standard connection contracts by distributors.

(3) Adoption without alteration except as permitted or required

A distributor’s form of deemed standard connection contract—

(a) must adopt the relevant model terms and conditions with no alterations, other than permitted alterations or required alterations; and

(b) if there are any required alterations—must include those required alterations.

(4) Permitted alterations

Permitted alterations are—

(a) alterations specifying details relating to identity and contact details of the distributor; and

(b) minor alterations that do not change the substantive effect of the model terms and conditions; and

(c) alterations of a kind specified or referred to in the Rules.

(5) Required alterations

Required alterations are—

(a) alterations that the Rules require to be made to the distributor’s form of deemed standard connection contract in relation to matters relating to specific jurisdictions; and

(b) alterations to a term or condition that is already adopted by the distributor so as to make the adopted term or condition consistent with the model terms or conditions as currently required by the Rules; and

(c) alterations of a kind specified or referred to in the Rules.

(6) Definition

In this section—

alterations includes omissions and additions.

70—Formation of deemed standard connection contract

(1) A contract in the form of a distributor’s deemed standard connection contract under section 69 is taken to be entered into, by the distributor and a customer, as set out in this section.

(2) In the case of a new connection or a connection alteration, a distributor’s form of deemed standard connection contract (including any additional terms and conditions relating to the new connection or connection alteration) takes effect as a contract between the distributor and the customer on acceptance by the customer of the distributor’s connection offer in accordance with the requirements under—

(a) in the case of electricity—Chapter 5A of the NER; or

(b) in the case of gas—Part 12A of the NGR.

(3) In the case of an existing connection that is not the subject of a connection alteration, a distributor’s form of deemed standard connection contract takes effect as a contract between the distributor and the customer when—

(a) in the case of an existing connection at premises that are not energised—the customer’s premises become re-energised (or reconnected); or

(b) in the case of an existing connection at premises that are energised—the customer commences to take supply of energy at those premises.

(4) In the case of an existing connection where—

(a) a customer has been reclassified as a small customer for particular premises; and

(b) a deemed AER approved standard connection contract applied in relation to the customer and the same premises immediately before the reclassification,

the deemed AER approved standard connection contract terminates and the distributor’s form of deemed standard connection contract takes effect between the customer and the distributor when the customer receives notice of the reclassification.

(5) Subsections (2), (3) and (4) do not apply if a negotiated connection contract already exists between the distributor and the customer in relation to the premises concerned.

(6) Subsections (2) and (3) do not apply if the customer is a large customer and there is a deemed AER approved standard connection contract between the distributor and the customer in relation to the premises concerned.

71—Obligations to comply with deemed standard connection contract and to bill retailer

(1) A distributor must comply with the obligations imposed on the distributor under the terms and conditions of a deemed standard connection contract between the distributor and a customer.

Note—

This subsection is a civil penalty provision.

(2) Except in relation to a new connection or a connection alteration, a distributor must not bill a small customer on a deemed standard connection contract, but must render a statement of charges to the customer’s retailer in accordance with the energy laws.

72—Variation of deemed standard connection contract

(1) Variation of form of deemed standard connection contract—permitted alterations

A distributor may vary the terms and conditions of the distributor’s form of deemed standard connection contract by making permitted alterations.

(2) Variation of form of deemed standard connection contract—required alterations

A distributor must vary the terms and conditions of the distributor’s form of deemed standard connection contract by making required alterations, and must do so by the date specified in the relevant Rule referred to in section 237(4).

(3) Permitted alterations

Permitted alterations are—

(a) alterations specifying details relating to identity and contact details of the distributor; and

(b) minor alterations that do not change the substantive effect of the model terms and conditions; and

(c) alterations of a kind specified or referred to in the Rules.

(4) Required alterations

Required alterations are—

(a) alterations that the Rules require to be made to the distributor’s form of deemed standard connection contract in relation to matters relating to specific jurisdictions; and

(b) alterations to a term or condition that is already adopted by the distributor so as to make the adopted term or condition consistent with the model terms or conditions as currently required by the Rules; and

(c) alterations of a kind specified or referred to in the Rules.

(5) When variation takes effect on existing contracts

A variation of the distributor’s form of deemed standard connection contract takes effect as a variation of an existing standard connection contract between the distributor and a customer on and from the date on which the distributor publishes the variation on the distributor’s website.

(6) Definition

In this section—

alterations includes omissions and additions.

73—Deemed standard connection contract to be consistent with model terms and conditions

(1) The terms and conditions (whether original or varied) of a deemed standard connection contract have no effect to the extent of any inconsistency with the model terms and conditions as currently in force or any required alterations.

(2) If there is such an inconsistency, the model terms and conditions or required alterations (as the case requires) apply instead to the extent of the inconsistency.

74—Duration of deemed standard connection contract

A deemed standard connection contract between a distributor and a customer remains in force until—

(a) a deemed AER approved standard connection contract or a negotiated connection contract in respect of the premises comes into force; or

(b) the deemed standard connection contract is terminated in accordance with the terms and conditions of the contract.

Division 5—Deemed AER approved standard connection contracts

75—Submission and approval of form of standard connection contracts for large customers

(1) A distributor may prepare and submit to the AER for approval one or more proposed forms of standard connection contracts applicable to one or more classes of large customers.

(2) The AER must determine to approve a proposed form of standard connection contract submitted to it if it is satisfied that the terms and conditions of the contract are fair and reasonable and comply with any applicable requirements of the energy laws.

(3) The AER may determine not to approve a proposed form of standard connection contract submitted to it if it is not so satisfied, but must inform the distributor of the reasons for its dissatisfaction and may indicate the kinds of changes that should be made before the contract is resubmitted to it.

(4) On approval, the proposed form of standard connection contract becomes the deemed AER approved standard connection contract for the relevant class of large customers of the distributor for the purposes of this Law.

(5) The AER must deal expeditiously with a proposed form of standard connection contract submitted to it.

(6) A deemed AER approved standard connection contract must be published on the distributor’s website and is not operative until so published.

(7) Without limitation, all large customers may constitute a class of large customers.

76—Formation of deemed AER approved standard connection contract

(1) A customer connection contract in the form of a distributor’s deemed AER approved standard connection contract under section 75 is taken to be entered into, by the distributor and a large customer of a class to which the approved form applies, as set out in this section.

(2) In the case of a new connection or a connection alteration, a contract in the form of a distributor’s deemed AER approved standard connection contract takes effect as a contract between the distributor and a large customer of a class to which the approved form applies, on acceptance by the customer of the distributor’s connection offer in accordance with the requirements under—

(a) in the case of electricity—Chapter 5A of the NER; or

(b) in the case of gas—Part 12A of the NGR.

(3) In the case of an existing connection that is not the subject of a connection alteration, a distributor’s form of deemed AER approved standard connection contract takes effect as a contract between the distributor and a large customer when—

(a) in the case of an existing connection at premises that are not energised—the customer’s premises become re-energised (or reconnected); or

(b) in the case of an existing connection at premises that are energised—the customer commences to take supply of energy at those premises.

(4) In the case of an existing connection where—

(a) a customer has been reclassified as a large customer for particular premises; and

(b) a deemed standard connection contract applied in relation to the customer and the same premises immediately before the reclassification,

the deemed AER approved standard connection contract for that class of large customer takes effect between the customer and the distributor when the customer receives notice of the reclassification.

(5) Subsections (1)— (4) do not apply if a negotiated customer connection contract already exists between the distributor and the large customer in relation to the premises concerned.

(6) Notice of the formation of the deemed AER approved standard connection contract must be given to the large customer.

77—Amendment and replacement of form of deemed AER approved standard connection contract

(1) A deemed AER approved standard connection contract may be replaced by another deemed AER approved standard connection contract.

(2) A deemed AER approved standard connection contract may be amended from time to time and the provisions of this Division apply to any such amendment and associated matters in the same way, with any necessary modifications, as they apply to the preparation, submission and approval of a deemed AER approved standard connection contract and associated matters.

(3) Notice of a replacement or amended deemed AER approved standard connection contract must be given to each affected large customer.

(4) A replacement or amended deemed AER approved standard connection contract takes effect for a large customer when the customer is given notice under subsection (3).

Division 6—Negotiated connection contracts

78—Negotiated connection contracts

(1) This section applies where a distributor and a small customer negotiate and enter into a customer connection contract (a negotiated connection contract) in accordance with the relevant requirements of—

(a) in the case of electricity—Chapter 5A of the NER; or

(b) in the case of gas—Part 12A of the NGR,

including the requirements of the relevant negotiating framework.

(2) The distributor must provide—

(a) information relating to the small customer’s right to have a deemed standard connection contract under Division 4; and

(b) an explanation of—

(i) the differences between the terms and conditions of the proposed negotiated connection contract and the terms and conditions of a deemed standard connection contract; and

(ii) the implications of those differences.

(3) A negotiated connection contract operates to the exclusion of provisions of a deemed standard connection contract dealing with the same matters.

Note—

A retail customer may negotiate customer connection services for electricity (under Chapter 5A of the NER) and for gas (under Part 12A of the NGR).

Part 4—Small customer complaints and dispute resolution

79—Definitions

(1) In this Part—

energy ombudsman constitution provisions means the provisions of—

(a) legislation of a participating jurisdiction (other than national energy legislation) or any instrument made or issued under or for the purposes of that legislation; or

(b) a constitution, charter or other arrangements,

under which an energy ombudsman is established or constituted and performs or exercises functions and powers in a participating jurisdiction;

relevant matter means a matter arising between a small customer and a retailer or distributor—

(a) under or in connection with this Law, the National Regulations or the Rules, including but not limited to a matter concerning any of the following:

(i) the carrying out of an energy marketing activity by a person;

(ii) a retailer’s obligations before a customer retail contract is formed (whether or not the contract is eventually formed);

(iii) a customer retail contract between a small customer and a retailer;

(iv) a deemed standard connection contract between a small customer and a distributor;

(v) a negotiated connection contract between a small customer and a distributor;

(vi) a decision of a distributor under Division 3 of Part 7 in relation to a customer’s claim for compensation; or

(b) under or in connection with the NER or NGR concerning a new connection or a connection alteration,

but does not include matters concerning the setting of tariffs and charges of distributors or retailers.

Note—

Nothing in this Part prevents an energy ombudsman from dealing with other disputes under the applicable energy ombudsman constitution provisions.

(2) A reference in this Part to—

(a) a small customer complaint is a reference to a complaint referred to in section 82 or 83; and

(b) a small customer dispute is a reference to a dispute referred to in section 83.

80—Role of energy ombudsman

(1) The relevant energy ombudsman for this jurisdiction may, as authorised by the energy ombudsman constitution provisions of this jurisdiction, perform and exercise, in relation to this jurisdiction, the functions and powers conferred on the energy ombudsman by this Part and the Rules.

(2) This Part does not affect any other functions or powers that an energy ombudsman has apart from this Law and the Rules.

81—Standard complaints and dispute resolution procedures

(1) Every retailer and every distributor must develop, make and publish on its website a set of procedures detailing the retailer’s or distributor’s procedures for handling small customer complaints and disputes, to be known as its standard complaints and dispute resolution procedures.

(2) The procedures must be regularly reviewed and kept up to date.

(3) The procedures must be substantially consistent with the Australian Standard AS ISO 10002-2006 (Customer satisfaction—Guidelines for complaints handling in organizations) as amended and updated from time to time.

82—Complaints made to retailer or distributor for internal resolution

(1) A small customer may make a complaint to a retailer or distributor about a relevant matter, or any aspect of a relevant matter, concerning the customer and the retailer or distributor.

(2) The retailer or distributor must deal with the complaint if it is made in accordance with the retailer’s or distributor’s standard complaints and dispute resolution procedures, including any time limits applicable under those procedures for making a complaint.

(3) The complaint must be handled in accordance with the retailer’s or distributor’s standard complaints and dispute resolution procedures, including any time limits applicable under those procedures for handling a complaint.

(4) The retailer or distributor must inform the small customer of the outcome of the complaint process, and of the retailer’s or distributor’s reasons for the decision regarding the outcome, as soon as reasonably possible but, in any event, within any time limits applicable under the retailer’s or distributor’s standard complaints and dispute resolution procedures.

(5) A retailer or distributor must inform a small customer—

(a) that, if the customer is not satisfied with the outcome, the customer may make a complaint or take a dispute to the energy ombudsman; and

(b) of the telephone number and other contact details of the energy ombudsman.

83—Complaints made or disputes referred to energy ombudsman

A small customer may—

(a) make a complaint to the energy ombudsman about a relevant matter, or any aspect of a relevant matter, concerning the customer and a retailer or distributor; or

(b) refer a dispute to the energy ombudsman about a relevant matter, or any aspect of a relevant matter, concerning the customer and a retailer or distributor.

84—Functions and powers of energy ombudsman

(1) The energy ombudsman has the following functions and powers:

(a) to receive small customer complaints and disputes;

(b) to investigate those complaints and disputes;

(c) to facilitate the resolution of those complaints and disputes;

(d) to resolve those complaints and disputes;

(e) to identify and advise on systemic issues as a means of preventing complaints and disputes.

(2) Those functions and powers are to be performed and exercised in accordance with—

(a) this Law and the Rules; and

(b) the energy ombudsman constitution provisions, including (but not limited to)—

(i) procedures for receiving, investigating and facilitating the resolution of small customer complaints and disputes; and

(ii) any relevant monetary limit.

(3) The energy ombudsman may decline to investigate a small customer complaint or dispute where the small customer concerned has not provided the retailer or distributor with a reasonable opportunity to address the complaint or dispute in accordance with the retailer’s or distributor’s standard complaints and dispute resolution procedures.

(4) Subsections (1) and (3) do not affect any functions or powers the energy ombudsman has under the energy ombudsman constitution provisions of this jurisdiction.

85—Information and assistance requirements

(1) A retailer or distributor must provide information and assistance relating to a small customer complaint or dispute to the energy ombudsman on request by the ombudsman.

(2) If there is a dispute as to the nature or scope of the information or assistance to be provided, the retailer or distributor is to abide by the decision of the ombudsman.

(3) The AER must share information with the energy ombudsman in relation to small customer complaints and disputes.

86—Retailers and distributors to be members of scheme

(1) A retailer must—

(a) be a member of, or subject to, an energy ombudsman scheme for each jurisdiction where it sells energy to small customers or engages in an energy marketing activity; and

(b) comply with the requirements of that scheme.

(2) A distributor must—

(a) be a member of, or subject to, an energy ombudsman scheme for each jurisdiction where it has small customers connected to its distribution system; and

(b) comply with the requirements of that scheme.

(3) A retailer must not, in this jurisdiction, engage in the activity of selling energy unless the retailer meets the requirements of subsection (1) in relation to this jurisdiction.

(4) A distributor must not, in this jurisdiction, engage in the activity of providing customer connection services unless the distributor meets the requirements of subsection (2) in relation to this jurisdiction.

(5) In this section—

energy ombudsman scheme means a scheme under which an energy ombudsman operates.

87—Rules

(1) The Rules may make provision for or with respect to small customer complaints and disputes.

(2) Without limiting subsection (1), the Rules may make provision for or with respect to a retailer’s or distributor’s standard complaints and dispute resolution procedures, including their development, making, publication, review, amendment and replacement.

Part 5—Authorisation of retailers and exempt seller regime

Division 1—Prohibition on unauthorised selling of energy

88—Requirement for authorisation or exemption

A person (the seller) must not, in this jurisdiction, engage in the activity of selling energy to a person for premises unless—

(a) the seller is the holder of a current retailer authorisation and—

(i) in the case of the sale of electricity, the seller is a Registered participant in relation to the purchase of electricity directly through a wholesale exchange, as required by section 11(4) of the NEL; or

(ii) in the case of the sale of gas, the seller—

(A) is a user or non-scheme pipeline user (within the meaning of the NGL) registered (or exempted from registration) to participate in a regulated retail gas market in this jurisdiction, as required by section 91LB of the NGL, in a registrable capacity specified in the NGR relating to this jurisdiction for a user or non-scheme pipeline user; and

(B) where there is a declared wholesale gas market, is a Registered participant in relation to that declared wholesale gas market, as required by section 91BJ of the NGL, in the registrable capacity specified in the NGR for a person who sells natural gas to customers that has been transported through the declared transmission system; and

(C) where there is a short term trading market, is a Registered participant in relation to that market, as required by section 91BRD of the NGL, in the registrable capacity specified in the NGR; or

(b) the seller is an exempt seller.

Note—

This section is a civil penalty provision.

Division 2—Application for and issue of retailer authorisation

89—Applications

A person may apply to the AER for a retailer authorisation.

90—Entry criteria

(1) The entry criteria in relation to an application are as follows:

(a) the organisational and technical capacity criterion—the applicant must have the necessary organisational and technical capacity to meet the obligations of a retailer;

(b) the financial resources criterion—the applicant must have resources or access to resources so that it will have the financial viability and financial capacity to meet the obligations of a retailer;

(c) the suitability criterion—the applicant must be a suitable person to hold a retailer authorisation.

(2) The applicant must, in accordance with the AER Retailer Authorisation Guidelines, provide such information to the AER as will demonstrate to the AER that the applicant satisfies the entry criteria.

(3) The information must be provided in or with the application or, at the request of or with the concurrence of the AER, by way of supplementary advice.

(4) In considering the suitability criterion in relation to the application, the AER may take into consideration such matters as it thinks relevant, including, for example—

(a) previous commercial dealings of the applicant and its associates; and

(b) the standard of honesty and integrity shown in previous commercial dealings of the applicant and its associates.

(5) In this section—

associate, in relation to a person, has the same meaning it would have under Division 2 of Part 1.2 of the Corporations Act 2001 of the Commonwealth if sections 13, 16(2) and 17 did not form part of that Act.

91—Public notice and submissions

Before deciding an application, the AER must—

(a) publish on the AER’s website a notice—

(i) setting out a copy of the application or giving details in relation to the application; and

(ii) stating that written submissions about the application may be made to the AER within a period of at least 20 business days that is specified in the notice; and

(iii) containing such other information as the AER considers appropriate; and

(b) consider all written submissions received by it within that period before deciding whether to grant or refuse the application.

92—Deciding application

(1) The AER must decide whether to grant or refuse an application.

(2) Subject to section 170, the AER must grant the application if the AER is satisfied—

(a) that the applicant satisfies the entry criteria; or

(b) in a case where the AER imposes conditions relating to the satisfaction of the entry criteria—that the applicant will satisfy the entry criteria once those conditions are satisfied.

93—Conditions

(1) If the AER grants an application, the AER may impose conditions on the retailer authorisation relating to the satisfaction of the entry criteria.

(2) A condition imposed under this section may provide that the retailer authorisation only authorises the selling of energy to customers on or after the condition is satisfied.

(3) The AER may amend or revoke any condition imposed under this section.

Note—

See section 170 where the applicant is a failed retailer or an associate of a failed retailer.

94—Notice of decision to grant application

If the AER decides to grant an application, the AER must, as soon as practicable, give the applicant a notice—

(a) stating the decision; and

(b) stating that the applicant is authorised to sell electricity or gas, as the case requires, when the retailer authorisation is issued under section 96; and

(c) specifying the conditions (if any) that the AER has decided to impose on the retailer authorisation under section 93(1) or 170(1)(b); and

(d) stating any other matter relevant to the grant of the retailer authorisation.

95—Deemed refusal

(1) This section applies if the AER specifies conditions in a notice under section 94.

(2) The AER is taken to have decided to refuse an application if, within—

(a) the period of 20 business days after the day the notice is given by the AER; or

(b) that period as extended by the AER,

the applicant has not given the AER a notice of acceptance of the conditions specified by the AER or those conditions with changes to which the AER has agreed.

(3) The AER is taken to have decided to refuse an application if, within—

(a) the period of 3 months after the day the notice is given by the AER; or

(b) that period as extended by the AER,

the applicant does not satisfy the AER that the conditions specified in the notice have been met.

96—Issue and public notice of retailer authorisation

(1) This section applies if—

(a) the AER decides to grant an application without conditions relating to entry criteria; or

(b) the AER decides to grant an application with conditions relating to entry criteria and, within—

(i) the period of 3 months after the day the notice of the AER’s decision is given by the AER; or

(ii) that period as extended by the AER,

the applicant satisfies the AER that the conditions specified in the notice have been met.

(2) The AER must, as soon as practicable—

(a) issue the retailer authorisation to the applicant; and

(b) publish a notice about the retailer authorisation on the AER’s website.

97—Notice of refusal

(1) If the AER decides or is taken to have decided to refuse an application, the AER must, as soon as practicable, give the applicant a notice stating the decision and the reasons for the decision and indicating whether, and (if so), how the entry criteria were not satisfied or will not be satisfied.

(2) If the AER decides or is taken to have decided to refuse an application, the AER must, as soon as practicable, publish a notice on its website stating—

(a) that the application for a retailer authorisation was refused; and

(b) the name of the applicant; and

(c) any details relating to the application that the AER considers appropriate.

98—Duration of retailer authorisation

A retailer authorisation continues in force until it is surrendered or revoked.

99—Variation of retailer authorisation

(1) The AER may amend a retailer authorisation to make any alterations requested by the retailer.

(2) In this section—

alterations includes omissions and additions.

100—Form of energy authorised to be sold

(1) A retailer authorisation may authorise the sale of electricity or gas.

(2) A retailer authorisation cannot be varied to change or add to the form of energy that the applicant is authorised to sell to customers, as specified in the notice under section 94.

(3) This section does not prevent an application for or the grant of another retailer authorisation.

Division 3—Transfer of retailer authorisation

101—Transfer only by application

(1) A retailer authorisation may be transferred only under this Division.

(2) A purported transfer of a retailer authorisation not made under this Division is of no effect.

102—Applying for transfer

(1) A retailer may apply to the AER to transfer the retailer’s authorisation.

(2) The application must—

(a) be made by the retailer and the proposed transferee; and

(b) include the information specified in the AER Retailer Authorisation Guidelines as being required to be included in or with an application for transfer of a retailer authorisation.

103—Deciding transfer application

(1) The AER must decide whether to grant or refuse the application.

(2) The application must not be granted unless the AER is satisfied that—

(a) the proposed transferee satisfies the entry criteria; and

(b) arrangements relating to the transfer will appropriately manage any issues concerning customers of the proposed transferor.

(3) The AER—

(a) may impose conditions on granting the application; and

(b) must fix a time, no later than 6 months after deciding the application, for the transfer to take effect.

(4) If the AER decides to refuse the application or impose a condition on the transfer, the AER must, as soon as practicable, give the applicants notice of the decision and the reasons for the decision.

(5) Without limitation, a condition may require the transferor or transferee to comply with specified requirements of energy laws, with any modifications specified in the condition. Any such requirement may continue, to the necessary extent, to apply to the transferor after the transfer of the authorisation.

(6) The AER must advise AEMO and the distributors concerned where a retailer authorisation is transferred.

(7) Despite section 38, the explicit informed consent of a small customer is not required in relation to the transfer of a retailer’s authorisation under this Division.

(8) A transferor or transferee must comply with any conditions imposed on the transferor or transferee under this section.

Note—

This subsection is a civil penalty provision.

104—Application of application process to transfers

The AER may determine that specified provisions of Division 2 are to apply in relation to the proposed transferee in the same way as they apply in relation to an application for a retailer authorisation, and those provisions apply accordingly with any necessary modifications.

Division 4—Surrender of retailer authorisation

105—Surrender of retailer authorisation

(1) A retailer may surrender its retailer authorisation only if the AER has, on the retailer’s application, decided to approve the surrender.

(2) The application must provide the information required by the AER Retailer Authorisation Guidelines.

(3) The AER may decide to approve the surrender if the AER is satisfied that arrangements relating to the surrender will appropriately manage the transfer of any retail customers.

(4) In deciding to approve the surrender of a retailer authorisation, the AER—

(a) may, after consulting AEMO, impose conditions for the transfer of customers to another retailer; and

(b) must fix a time, no later than 6 months after deciding the application, for the surrender to take effect.

(5) Without limitation, a condition may require the surrendering retailer (or former retailer) to abide by specified requirements of energy laws, with any modifications specified in the condition. Any such requirement may continue, to the extent necessary, to apply to the retailer after the surrender of the retailer authorisation.

(6) The AER must publish on its website a copy of its decision to approve the surrender of the retailer authorisation, including the reasons and any conditions that are imposed.

(7) The AER must advise AEMO and the distributors concerned where a retailer authorisation is surrendered.

(8) Despite section 38, the explicit informed consent of a small customer is not required in relation to the surrender of a retailer authorisation under this Division.

(9) A surrendering retailer (or former retailer) must comply with any conditions imposed on the surrendering retailer (or former retailer) under this section.

Note—

This subsection is a civil penalty provision.

106—Transfer of customers following surrender

A person whose retailer authorisation is surrendered must comply with the requirements of conditions imposed for the transfer of the person’s former customers to another retailer.

Note—

This section is a civil penalty provision.

Division 5—Revocation of retailer authorisation

Note—

This Division does not apply where a RoLR notice is issued under Part 6: see section 142(2).

107—Power to revoke retailer authorisation

(1) The AER may decide to revoke a retailer authorisation in accordance with this Division.

(2) The grounds for revocation of a retailer’s authorisation are—

(a) that the retailer—

(i) in the case of electricity—is not or is no longer a person referred to in section 88(a)(i); or

(ii) in the case of gas—is not or is no longer a person referred to in section 88(a)(ii); or

(b) that the AER is satisfied that there has been a material failure by the retailer to meet the obligations of a retailer under the energy laws, which creates a reasonable apprehension that the retailer will not be able to meet its obligations under this Law, the National Regulations or the Rules in the future.

(3) A retailer authorisation may not be revoked unless the revocation process has been completed.

(4) The AER may commence the revocation process in relation to a retailer authorisation if the AER reasonably considers that the grounds for revocation exist.

Note—

The revocation process is set out in section 120.

108—Transfer of customers following revocation

A person whose retailer authorisation has been revoked must comply with the requirements of conditions imposed for the transfer to another retailer of the persons who were its customers immediately before the revocation.

Note—

This section is a civil penalty provision.

Division 6—Exemptions

109—Definitions

In this Division—

exempt customer means a person to whom an exempt seller sells energy and who would be a retail customer of the seller if the seller were a retailer;

retail customer means a person who is a customer of a retailer.

110—Power to exempt

(1) The AER may decide to exempt persons or classes of persons in accordance with the Rules from the requirement to hold a retailer authorisation.

(2) There are 3 kinds of exemptions provided for in the Rules, as follows:

(a) individual exemptions;

(b) deemed exemptions;

(c) registrable exemptions (which become registered exemptions in respect of particular persons when the persons are registered under the Rules).

(3) An exemption of a class of persons may be made so as to operate (subject to the terms of the exemption)—

(a) in respect of all the members of the class; or

(b) in respect only of those members of the class who are, on application, registered in the Public Register of Authorised Retailers and Exempt Sellers in relation to the exemption.

(4) A person is an exempt seller for the purposes of this Part while an exemption is in force in relation to the person.

111—Power to revoke exemption

(1) The AER may decide to revoke (in relation to a particular exempt seller)—

(a) an individual exemption; or

(b) an exemption under a deemed exemption; or

(c) a registered exemption,

in accordance with this section.

(2) The grounds for revocation of an exempt seller’s exemption are that the AER is satisfied that there has been a material failure by the seller to meet the conditions imposed on the exempt seller.

(3) An exemption may not be revoked unless the revocation process has been completed.

(4) The AER may commence the revocation process in relation to an exempt seller’s exemption if the AER reasonably considers that the grounds for revocation exist.

Note—

The revocation process is set out in section 120.

112—Conditions

(1) The AER may impose conditions on an exempt seller or class of exempt sellers in accordance with the Rules and the AER Exempt Selling Guidelines.

(2) An exempt seller must comply with applicable conditions imposed under this section.

Note—

This subsection is a civil penalty provision.

(3) The AER may deal with a breach of a condition imposed under this section as if it were a breach of the Rules.

113—Rules

The Rules may make provision for or with respect to—

(a) the exemption of persons or classes of persons from the requirement to hold a retailer authorisation; and

(b) the variation or revocation of exemptions.

114—Manner in which AER performs AER exempt selling regulatory functions or powers

(1) The AER must, in performing or exercising an AER exempt selling regulatory function or power, take into account the following policy principles:

(a) regulatory arrangements for exempt sellers should not unnecessarily diverge from those applying to retailers;

(b) exempt customers should, as far as practicable, be afforded the right to a choice of retailer in the same way as comparable retail customers in the same jurisdiction have that right;

(c) exempt customers should, as far as practicable, not be denied customer protections afforded to retail customers under this Law and the Rules.

(2) The AER may, in performing or exercising an AER exempt selling regulatory function or power, take into account—

(a) the exempt seller related factors (see section 115); and

(b) the customer related factors (see section 116),

if the AER considers it appropriate to do so.

(3) The AER may give such weight to any aspect of the policy principles, the exempt seller related factors and the customer related factors as it considers appropriate in all the circumstances.

115—Exempt seller related factors

(1) The exempt seller related factors are as follows:

(a) whether selling energy is or will be a core part of the exempt seller’s business or incidental to that business;

(b) whether the exempt seller’s circumstances demonstrate specific characteristics that may warrant exemption;

(c) whether the exempt seller is intending to profit from the arrangement;

(d) whether the amount of energy likely to be sold by the exempt seller is significant in relation to national energy markets;

(e) the extent to which the imposition of conditions on an exemption, or to which the requirements of other laws, would allow appropriate obligations to govern the applicant’s behaviour rather than requiring the applicant to obtain a retailer authorisation;

(f) the likely cost of obtaining a retailer authorisation and of complying with this Law and the Rules as a retailer compared to the likely benefits to the exempt customers of the exempt seller;

(g) any other seller related matter the AER considers relevant.

(2) In this section—

exempt seller includes an applicant for an exemption under this Division.

116—Customer related factors

The customer related factors are as follows:

(a) whether the characteristics of the exempt customers or the circumstances in which energy is to be sold to them by the applicant are such as to warrant exemption;

(b) the extent to which the imposition of conditions on an exemption, or to which the requirements of other laws, would allow the exempt customers access to appropriate rights and protections rather than requiring the applicant to obtain a retailer authorisation;

(c) any other customer related matter the AER considers relevant.

Division 7—Miscellaneous

117—AER Retailer Authorisation Guidelines

(1) The AER must make guidelines (AER Retailer Authorisation Guidelines) in accordance with the retail consultation procedure—

(a) specifying information that is required to be included in an application for a retailer authorisation; and

(b) indicating, for the guidance of applicants for retailer authorisations, how the AER will apply the entry criteria for an applicant for a retailer authorisation; and

(c) providing, for the guidance of the holders of retailer authorisations, information about—

(i) the surrender or transfer of retailer authorisations; and

(ii) the revocation of retailer authorisations; and

(d) concerning any other matters specified in the Rules.

(2) The AER may amend the AER Retailer Authorisation Guidelines in accordance with the retail consultation procedure.

118—AER Exempt Selling Guidelines

(1) The AER must, in accordance with the Rules, develop and maintain guidelines (AER Exempt Selling Guidelines) in accordance with the retail consultation procedure—

(a) providing information about exemptions from the requirement to hold a retailer authorisation; and

(b) concerning any other matters specified in the Rules.

(2) The Rules may make provision for or with respect to the AER Exempt Selling Guidelines.

(3) The AER may amend the AER Exempt Selling Guidelines in accordance with the retail consultation procedure.

119—Public Register of Authorised Retailers and Exempt Sellers

The AER must maintain, and publish on its website, a Public Register of Authorised Retailers and Exempt Sellers, which—

(a) must include particulars of authorised retailers and exempt sellers, and other particulars, as required by the Rules; and

(b) may include other particulars or information as permitted by the Rules.

120—Revocation process—retailer authorisations and exemptions

(1) This section sets out the revocation process in relation to a retailer authorisation or an exempt seller’s exemption (see sections 107 and 111), and in this section—

(a) the term holder refers to the retailer or exempt seller; and

(b) the term authorisation refers to the retailer’s retailer authorisation; and

(c) the term exemption refers to the exempt seller’s exemption.

(2) The AER must give the holder a notice that it intends to revoke the authorisation or exemption.

(3) The notice must set out the reasons why the AER considers that the grounds for revocation exist.

(4) The notice must request the holder to respond to the notice in writing (by a date and time specified in the notice, being a date not less than 10 business days after the date of service of the notice) by doing either or both of the following:

(a) showing cause why the AER should not revoke the authorisation or exemption;

(b) stating how the holder proposes to address the matters set out in the notice.

(5) If, by the date and time referred to in the notice, the holder has not shown sufficient cause why the AER should not revoke the authorisation or exemption, the AER may revoke the authorisation or exemption if—

(a) the holder has, by that date and time, stated how the holder proposes to address the matters set out in the notice but the AER is not satisfied that the holder can rectify the matters set out in the notice; or

(b) the holder has, by that date and time, failed to state how the holder proposes to address the matters set out in the notice.

(6) Without limiting subsection (5), the AER may revoke the authorisation or exemption if—

(a) the holder has, by the date and time referred to in the notice, informed the AER how the holder proposes to address the matters set out in the notice (including the date by which those matters will have been addressed); and

(b) the holder fails to rectify those matters after being given a reasonable opportunity to do so or otherwise by the date nominated by the holder under paragraph (a).

(7) The AER—

(a) must fix a time for the revocation to take effect; and

(b) may, after consulting AEMO, impose conditions on the transfer of customers to another retailer or exempt seller.

(8) Without limitation, a condition may require the holder (or former holder) to comply with specified requirements of energy laws, with any modifications specified in the condition. Any such requirement may continue, to the extent necessary, to apply to the holder (or former holder) after the revocation of the authorisation or exemption.

(9) The AER must publish on its website a copy of its decision to revoke the authorisation or exemption, including the reasons and any conditions that are imposed.

(10) The AER must advise AEMO and the distributors concerned where an authorisation or exemption is revoked.

(11) A holder (or former holder) must comply with any conditions imposed on the holder (or former holder) under this section.

Note—

This subsection is a civil penalty provision.

Part 6—Retailer of last resort scheme

Division 1—Preliminary

121—Purpose of this Part

This Part establishes a retailer of last resort scheme (the RoLR scheme).

122—Definitions

In this Part—

additional RoLR—see section 126;

AER RoLR Guidelines—see section 135;

applicable access arrangement means an applicable access arrangement within the meaning of the NGL;

connection point has the same meaning as it has in the NER;

default RoLR means a retailer appointed and registered as a default RoLR under Division 2;

designated RoLR means a registered RoLR who is appointed or is taken to be appointed as a designated RoLR under Division 4 for a RoLR event;

distribution determination means a distribution determination within the meaning of the NEL;

failed retailer means a retailer (or former retailer) in relation to whom a RoLR event has occurred;

financial information—see section 130(4)(a);

insolvency official means a receiver, receiver and manager, administrator, provisional liquidator, liquidator, trustee in bankruptcy or person having a similar or analogous function;

member of its marketing staff, in relation to a RoLR, means a person who is an officer, employee, consultant, independent contractor or agent of the RoLR and who is directly involved in the sale, marketing or advertising of customer retail services provided by the RoLR, but does not include such a person if—

(a) the person’s function or role is only to provide technical, administrative, legal or accounting services; or

(b) the sale, marketing or advertising of those services is only an incidental part of the person’s function or role;

registered RoLR means a retailer registered as a RoLR under section 127;

relevant designated RoLR for a customer, in relation to a RoLR event, means—

(a) if only one RoLR is designated for the event—that RoLR; or

(b) if more than one RoLR is designated for the event—the RoLR allocated to the customer;

RoLR means a retailer of last resort;

RoLR cost recovery scheme—see Division 9;

RoLR cost recovery scheme distributor payment determination—see section 167;

RoLR criteria—see section 123;

RoLR event, in relation to a retailer, means any of the following events or circumstances:

(a) the revocation of the retailer’s retailer authorisation;

(b) in the case of electricity—

(i) the right of the retailer to acquire electricity from the wholesale exchange is suspended; or

(ii) the retailer ceases to be a Registered participant in relation to the purchase of electricity directly through the wholesale exchange, as required by section 11(4) of the NEL;

(c) in the case of gas—

(i) the right of the retailer to acquire gas either in the declared wholesale gas market or in the short term trading market is suspended; or

(ii) the retailer’s registration as a Registered participant, in relation to the declared wholesale gas market or a short term trading market, is revoked; or

(iii) where there is no declared wholesale gas market or short term trading market, the retailer’s registration as a Registered participant in a retail gas market is revoked;

(d) an insolvency official is appointed in respect of the retailer or any property of the retailer;

(e) an order is made for the winding up of the retailer or a resolution is passed for the winding up of the retailer;

(f) the cessation of the sale of energy by the retailer to customers, otherwise than by—

(i) transfer of its retailer authorisation in accordance with Division 3 of Part 5; or

(ii) surrender of its retailer authorisation in accordance with Division 4 of Part 5; or

(iii) transfer of all or some of its customers to another retailer; or

(iv) selling or otherwise disposing in whole or in part its business of the sale of energy (being the activity to which the retailer’s authorisation relates) to another retailer;

(g) any other event or circumstance prescribed by the National Regulations;

RoLR notice—see section 136;

RoLR Procedures—see section 144;

RoLR register EoI—see section 124;

RoLR regulatory information notice—see section 151;

RoLR scheme means the scheme constituted by—

(a) this Part; and

(b) the RoLR Procedures; and

(c) the National Regulations;

transfer date for the customers of a failed retailer—see section 136(2)(e);

wholesale exchange for electricity means the wholesale exchange operated and administered by AEMO under the NEL and NER.

Division 2—Registration of RoLRs

123—RoLR criteria

(1) The RoLR criteria in relation to a retailer are as follows:

(a) the organisational and technical capacity criterion—the extent to which the retailer has the necessary organisational and technical capacity to meet the obligations of a RoLR, either by—

(i) having adequate systems in place for that purpose; or

(ii) being able to implement adequate systems in a timely manner for that purpose;

(b) the financial resources criterion—the extent to which the retailer has adequate resources or access to adequate resources so that it will have the financial viability and financial capacity to meet the obligations of a RoLR;

Note—

One matter to take into consideration under this criteria may be whether a retailer has hedging contracts adequate for it to be a RoLR.

(c) the suitability criterion—whether the retailer is a suitable person to be a RoLR, taking into consideration—

(i) the number of customers the retailer has; and

(ii) the class or classes of customers the retailer has; and

(iii) the area or areas that the retailer currently serves; and

(iv) in the case of gas and where there is no declared wholesale gas market or short term trading market—whether and to what extent the retailer has—

(A) gas available to it by means of a distribution pipeline; and

(B) capacity available to it on that distribution pipeline and any relevant transmission pipeline,

sufficient for it to be a RoLR;

(d) any other relevant matters specified in the energy laws;

(e) any other matters the AER considers relevant in the circumstances.

(2) In this section, transmission pipeline and distribution pipeline have the same meanings as they have in the NGL.

124—Expressions of interest for registration as a RoLR

(1) The AER must both initially and afterwards at such times as it considers appropriate call for an expression of interest (RoLR register EoI) from retailers for registration as a RoLR.

(2) A RoLR register EoI may be lodged by a retailer with the AER either in response to an AER call for expressions of interest or at any other time.

(3) A RoLR register EoI must contain such information as will enable the AER to take the RoLR criteria into consideration in relation to the retailer and otherwise be in accordance with the AER RoLR Guidelines.

(4) A RoLR register EoI may contain proposals as to—

(a) customers or classes of customers the retailer will accept as its customers if it were to be appointed a designated RoLR in respect of a RoLR event; and

(b) numbers of customers the retailer will accept if it were to be appointed a designated RoLR in respect of a RoLR event; and

(c) variation to the retailer’s RoLR cost recovery scheme.

(5) Subsections (3) and (4) do not limit the information that may be included in a RoLR register EoI or the proposals that a retailer may make in that expression of interest.

(6) The AER may, after receipt of a RoLR register EoI, request from the retailer such additional information as the AER considers reasonably necessary for it to make a decision with respect to the RoLR register EoI. The retailer must comply with any such request.

(7) The AER must publish a notice of each RoLR register EoI on its website.

125—Appointment and registration as a default RoLR

(1) The AER must appoint and register a default RoLR for—

(a) in the case of electricity—each connection point; and

(b) in the case of gas—each distribution system of each distributor.

(2) The AER must ensure that there is one and no more than one default RoLR registered for each connection point (in the case of electricity) and for each distribution system (in the case of gas) at all times.

(3) Lodgement of a RoLR register EoI is not a precondition to the AER appointing and registering a retailer as a default RoLR although if the AER proposes to appoint and register a retailer as a default RoLR without a RoLR register EoI first being lodged, the AER must consult with the retailer before appointing and registering the retailer.

(4) A retailer that the AER proposes to appoint and register as a default RoLR must provide the AER with such information as the AER considers reasonably necessary to make the appointment and register the retailer as a default RoLR.

(5) A retailer’s concurrence is not required for appointment and registration as a default RoLR.

(6) The AER must take the RoLR criteria into consideration when deciding whether to appoint and register a retailer as a default RoLR.

(7) The AER must not appoint and register a retailer as a default RoLR if the retailer does not satisfy all the requirements of the RoLR criteria unless otherwise there would be no default RoLR for a connection point (in the case of electricity) or a distribution system (in the case of gas) and the AER is satisfied that the retailer most nearly satisfies the financial resources criterion (see section 123(1)(b)).

(8) If a retailer does not, at the time of registration as a default RoLR, meet the organisational and technical capacity criterion (see section 123(1)(a)), the retailer must as soon as practicable after registration implement adequate systems to meet that criterion and advise the AER when those systems are implemented.

(9) The AER may terminate a retailer’s appointment and registration as a default RoLR at any time, but is not obliged to do so.

(10) The AER must publish on its website notice of any appointment of a default RoLR or termination of an appointment under this section.

(11) A retailer is not entitled to be appointed and registered as a default RoLR even though it satisfies (or appears to satisfy) the RoLR criteria.

126—Registration of additional RoLRs

(1) The AER may register one or more retailers as an additional RoLR for a connection point (in the case of electricity) or a distribution system (in the case of gas).

(2) The AER must take the RoLR criteria into consideration when deciding whether to register a retailer as an additional RoLR.

(3) The AER must not register a retailer as an additional RoLR unless the retailer has lodged a RoLR register EoI.

(4) A retailer registered as an additional RoLR may be registered as a RoLR in addition to the default RoLR registered for the connection point or distribution system concerned.

(5) A retailer who, in the case of electricity, is a default RoLR for a connection point may be registered as an additional RoLR for any connection point for which it is not the default RoLR.

(6) A retailer who, in the case of gas, is a default RoLR for a distribution system may be registered as an additional RoLR for any distribution system for which it is not the default RoLR.

(7) The AER may at the same time as it registers a retailer as an additional RoLR, and if the retailer consents, impose conditions as to—

(a) customers or classes of customers that may be transferred to the retailer as its customers if it is appointed a designated RoLR in respect of a RoLR event; and

(b) numbers of customers that may be transferred to the retailer if it is appointed a designated RoLR in respect of a RoLR event; and

(c) variations of the retailer’s RoLR cost recovery scheme.

(8) Subsection (7) does not limit the conditions that the AER may impose with the retailer’s consent.

(9) A retailer is not entitled to registration as an additional RoLR even though it satisfies or appears to satisfy the RoLR criteria.

(10) The AER must publish on its website notice of registration of an additional RoLR.

127—Register of RoLRs

(1) The AER must maintain, and publish on its website, a register of RoLRs (the RoLR register) which—

(a) must include particulars of RoLRs registered under this Division, including—

(i) whether the RoLR is registered as a default RoLR (and, if so, for which connection points or distribution systems); and

(ii) whether the RoLR is registered as an additional RoLR (and, if so, what conditions apply to its registration); and

(b) may include other particulars or information the AER considers necessary or desirable.

(2) If the AER registers a retailer as a RoLR, it must enter the particulars of the retailer on the RoLR register.

(3) If the AER decides to terminate the registration of a retailer as a RoLR, it must remove the particulars of the retailer from the RoLR register. Termination and removal of a retailer from the RoLR register (or, in the case of a default RoLR, termination of its appointment and registration as a default RoLR and removal from the register) does not affect any accrued rights or obligations that the retailer had by reason of its registration.

(4) A RoLR whose particulars are entered on the RoLR register is a registered RoLR for so long as its particulars remain on the RoLR register.

128—Termination of registration as a RoLR

(1) The registration of a RoLR (other than a default RoLR) may be terminated in either of the following ways:

(a) the registered RoLR applying to the AER pursuant to this section for its registration to be terminated;

(b) the AER giving to the registered RoLR a notice to show cause why its registration should not be terminated.

(2) If the AER gives a retailer a notice to show cause under subsection (1)(b), the notice must state that any submissions by the registered RoLR must be made to the AER within a specified period of at least 20 business days.

(3) The AER must publish on its website—

(a) a notice of any application under subsection (1)(a); and

(b) any notice to show cause under subsection (1)(b).

(4) Any such notice published on the AER website must invite submissions on the application or the notice to show cause within a specified period of at least 20 business days.

(5) The AER may, after considering any submissions made to it, terminate the RoLR’s registration.

(6) If the AER terminates the RoLR’s registration, it must publish notice of the termination on its website.

129—New basis for registration as a RoLR

(1) If AEMO advises the AER that a RoLR may be registered on a basis other than for a connection point (in the case of electricity) or a distribution system (in the case of gas), the AER may register the RoLR on that basis (the new basis).

Note—

There still must be (disregarding any failed retailer) no more than one default RoLR for the matter or thing that comprises the new basis for registration.

(2) Notice of the new basis for registration must be published by the AER on its website.

(3) References in this Division to a connection point (in the case of electricity) or a distribution system (in the case of gas) are taken to include a reference to any new basis for registration.

Division 3—Contingency events

130—AER’s powers

(1) If the AER receives notice of or otherwise becomes aware of any event, circumstance or matter that it has reason to believe may or will affect, or give rise to some risk of affecting, continuity of the sale of energy to a retailer’s customers, the AER may act under this Division.

(2) Events, circumstances or matters for the purposes of this Division include (without limitation) any of the following:

(a) the events and circumstances that constitute a RoLR event;

(b) any material default by the retailer in provision of required credit support to a distributor under the NER or NGR as appropriate;

(c) any material default by the retailer in payment of network charges;

(d) any other material default by the retailer with respect to its obligations under energy laws with respect to the payment of money, the provision of securities or otherwise of a financial nature.

(3) It is not a prerequisite for the AER to act under this Division that an event, circumstance or matter has come into existence, and the AER may instead so act if it has reason to believe that there is some risk that the event, circumstance or matter may come into existence.

(4) In acting under this Division the AER may do any of the following:

(a) request information (financial information) from the retailer including (but not limited to) any of the following:

(i) details of any parent company guarantees;

(ii) details of cash flow;

(iii) details of amounts owing to distributors;

(iv) details of the retailer’s current financial position together with the most recent financial statements of the retailer;

(b) subject to and in accordance with the confidentiality provisions applicable to this Division—

(i) consult with AEMO; and

(ii) for that purpose disclose some or all of the financial information to AEMO and its officers or employees.

(5) If the AER has reason to believe that there is a risk of a RoLR event, the AER may, subject to and in accordance with the confidentiality provisions applicable to this Division, do any of the following:

(a) inquire of one or more registered RoLRs as to whether it wants to be appointed designated RoLR for that event;

(b) give notice of that belief and of the grounds for the belief to one or more of the following:

(i) distributors;

(ii) registered RoLRs of whom the inquiries are made;

(iii) relevant default RoLRs;

(iv) such other person as the AER considers relevant,

but it must, in any such case, give notice of that belief and of the grounds for the belief to AEMO and Ministers of participating jurisdictions.

(6) The AER may, subject to and in accordance with Division 7, issue a RoLR regulatory information notice to obtain the financial information.

131—Confidentiality provisions

(1) This section contains confidentiality provisions applicable to this Division and also applies where the AER serves a regulatory information notice in connection with the exercise of the AER's functions and powers under this Division.

(2) In the case of the AER, it must keep confidential—

(a) its request for financial information (including, if it issues one, the issue of a regulatory information notice to obtain the information) and the financial information provided in response to the request; and

(b) both its belief as to the risk of a RoLR event and the fact and nature of its inquiries of registered RoLRs,

but it may disclose any or all of those matters or that financial information as allowed or required by this Division or otherwise in accordance with Division 3 of Part 8.

(3) In the case of AEMO, it must keep the fact and nature of the consultations between it and the AER, the financial information and the AER notice given under section 130(5)(b) confidential, but it may disclose them in accordance with Division 6 of Part 5 of the NEL and Division 7 of Part 6 of Chapter 2 of the NGL.

(4) In the case of persons other than the AER and AEMO who are given the AER notice of the risk of a RoLR event, they must keep the fact and nature of the notice (and the information it contains) confidential and—

(a) must use it only for the purpose of preparing for the RoLR event; and

(b) must not (in the case of the default RoLR or registered RoLR of whom the AER’s inquiries are made) disclose the notice, its issue and information to any member of its marketing staff; and

(c) may disclose it to third parties only if those third parties also agree to be bound by the same confidentiality requirements as those persons are subject to under this Law,

except to the extent that—

(d) the notice is in the public domain; or

(e) the AER or AEMO has published the notice in accordance with this Division; or

(f) the retailer the subject of the notice has published the notice under Chapter 6CA of the Corporations Act 2001 of the Commonwealth; or

(g) a Minister has published the notice in the case of an emergency or in a case where that Minister considers it is otherwise necessary or desirable to do so in the public interest.

(5) The matters and financial information referred to in subsection (3) are taken to be protected information for the purposes of the provisions of the NEL and NGL referred to in that subsection.

Division 4—Appointment of designated RoLRs

132—Designation of registered RoLR for RoLR event

(1) If a RoLR event occurs the default RoLR is taken to be appointed as the designated RoLR in respect of that event.

(2) Despite subsection (1), the AER may, by notice in writing, appoint a registered RoLR as a designated RoLR in respect of a RoLR event before the event actually occurs. If such an appointment is made and the AER gives a copy of the notice to AEMO before the transfer date, the registered RoLR is taken to be the designated RoLR in respect of that event instead of the default RoLR.

(3) Appointment as a designated RoLR takes effect immediately or from an earlier or later time specified in or fixed in accordance with the RoLR notice for the RoLR event.

(4) The AER must notify a registered RoLR before appointing it as a designated RoLR, but the registered RoLR’s consent is not required for appointment.

(5) If—

(a) the AER includes a direction under section 137 in a RoLR notice; and

(b) there is more than one distributor who will receive the direction; and

(c) the distribution systems of those distributors are connected to the same transmission pipeline,

only the same designated RoLR may, despite any other provision of this Part, be appointed (or be taken to be appointed) as the designated RoLR for each of those distribution systems.

133—Criteria for RoLR designation

(1) In determining whether to appoint a registered RoLR as a designated RoLR, the AER must take into consideration—

(a) the RoLR criteria; and

(b) whether the registered RoLR has a RoLR cost recovery scheme (see Division 9 and subsection (2)) and if so what costs are recoverable pursuant to that scheme and the amount or likely amount of those costs; and

(c) the imminence of the RoLR event; and

(d) any other matters the AER considers relevant in the circumstances.

(2) The registered RoLR and the AER may by agreement vary the RoLR’s cost recovery scheme for the purposes of this section, and the reference in subsection (1)(b) to the RoLR cost recovery scheme is accordingly a reference to that scheme as so varied.

134—Appointment of more than one designated RoLR for RoLR event

(1) The AER may appoint more than one designated RoLR for a RoLR event if the AER is of the opinion that it is appropriate to do so having regard to the size of, or other circumstances surrounding, the event.

(2) When making the appointments, the AER must allocate responsibility for particular customers or classes of customers to each designated RoLR in the manner specified in guidelines under section 135(2)(b).

(3) The AER must, to the maximum practicable extent, make the appointments and allocations in accordance with the AER RoLR Guidelines except to the extent that the AER is satisfied that compliance with the guidelines would be inappropriate in the circumstances.

135—AER RoLR Guidelines

(1) The AER must develop, make and maintain AER RoLR Guidelines in accordance with the retail consultation procedure.

(2) The guidelines must—

(a) specify the circumstances in which the appointment of more than one designated RoLR for a RoLR event may occur; and

(b) specify the manner of determining the allocation of the designated RoLRs to particular customers or classes of customers; and

(c) provide for any other matter that the AER considers necessary in the circumstances.

(3) The guidelines may (without limitation) make different provision for the failure of large retailers, small retailers and retailers that are default RoLRs.

(4) The manner of determining the allocation of designated RoLRs referred to in subsection (2) must involve the use of meter identifiers alone or the use of a combination of meter identifiers and other means acceptable to AEMO, and must be determined by the AER in consultation with AEMO.

(5) The guidelines may (without limitation)—

(a) specify the form of and information to be included in a RoLR register EoI; and

(b) specify the form of and information to be included in an application for a RoLR cost recovery scheme; and

(c) provide for any other matter the AER considers necessary with respect to the RoLR scheme.

(6) The AER may amend the guidelines in accordance with the retail consultation procedure.

Division 5—Declaration of RoLR event

136—Issue of RoLR notice

(1) The AER must issue a notice (a RoLR notice) as soon as practicable after a RoLR event occurs.

(2) The RoLR notice must—

(a) state that the RoLR event has occurred and identify it; and

(b) specify the failed retailer; and

(c) specify the registered RoLR or registered RoLRs appointed by the notice (or taken to be appointed) under section 132 as designated RoLR or designated RoLRs for the event; and

(d) if more than one designated RoLR is appointed—specify, in accordance with the AER RoLR Guidelines, the allocation of each designated RoLR to particular customers or classes of customers; and

(e) specify the date, or the manner of fixing the date, (either of which is the transfer date) on which the customers of the failed retailer are transferred to the relevant designated RoLR under section 140; and

(f) contain the endorsement revoking the failed retailer’s retailer authorisation, where applicable, under section 142; and

(g) include any other information or matters the AER considers necessary or desirable.

(3) The RoLR notice may contain requirements (not inconsistent with this Law or the RoLR Procedures) to be complied with by—

(a) the failed retailer; and

(b) a designated RoLR; and

(c) subject to section 143(3), other persons on whom the notice is served,

in relation to the RoLR event and in particular in relation to the transfer of customers.

(4) The RoLR notice must be framed so as to deal with all customers of the failed retailer, but a failure to do so does not invalidate the notice and the notice has effect for the customers covered by it.

(5) The transfer date may be on, before or after the date of service or publication of the RoLR notice, but if the RoLR event is—

(a) the revocation of the retailer’s retailer authorisation; or

(b) the suspension of the retailer’s right to participate—

(i) in the case of electricity—in the wholesale exchange market; or

(ii) in the case of gas—either in the declared wholesale gas market or in a short term trading market,

the transfer date is taken to be the date of the revocation or suspension (as the case may be), unless an earlier date is specified or fixed.

(6) The AER may amend a RoLR notice by a later notice issued by the AER, but a RoLR notice cannot be amended so as to change—

(a) a transfer date if the date has already been reached; or

(b) without the consent of AEMO and the designated RoLR, an allocation of a customer if AEMO has acted on the allocation or if changing the allocation would (or would be likely to) affect continuity of the sale of energy to customers.

137—RoLR notice—direction for gas

(1) If, in the case of gas, there is no declared wholesale gas market or short term trading market or where, in the opinion of the AER, sufficient capacity or gas is not available in a short term trading market, the AER may include a direction in a RoLR notice to the effect of any or all of the following:

(a) a distributor must make available to a designated RoLR the capacity that was available, immediately before the transfer date, to the failed retailer on the distributor’s distribution pipeline;

(b) a service provider for a transmission pipeline must make available to a designated RoLR the capacity that was available, immediately before the transfer date, to the failed retailer on the provider’s transmission pipeline;

(c) a producer or any other person that has contracted to sell gas to the failed retailer must make available to a designated RoLR the gas that was contracted to the failed retailer.

(2) In forming its opinion under subsection (1) as to whether or not sufficient gas is available in a short term trading market, the AER may proceed on the assumption that there is not sufficient gas unless, before the issue of a RoLR notice, AEMO notifies the AER in writing that there is sufficient gas.

(3) The following subsections of this section apply if the AER includes a direction under subsection (1).

(4) The designated RoLR may, but is not obliged to, use any or all of the capacity or take any or all of the gas made available to it by a person who received a direction under subsection (1).

(5) The terms and conditions for the transmission, distribution, sale and supply of gas to the designated RoLR—

(a) are—

(i) if there is an applicable access arrangement with respect to the distribution pipeline or transmission pipeline—to be in accordance with that applicable access arrangement, including (if the applicable access arrangement is a limited access arrangement) at the price paid or payable by the failed retailer; or

(ii) if there is no applicable access arrangement—to be on the same terms and conditions as the contract for pipeline services (however the contract is named in the contract or elsewhere, but referred to in this section as the haulage contract) in force with the failed retailer immediately before the transfer date; and

(b) are otherwise to be the same terms and conditions as in the gas sale and purchase contract (however the contract is named in the contract or elsewhere, but referred to in this section as the gas sale contract) in force with the failed retailer immediately before the transfer date.

(6) Despite subsection (5), if the terms and conditions of the haulage contract or the gas sale contract materially differ from those that otherwise prevail in the market, the AER may specify in the RoLR notice (or an amendment, which may have effect back to the transfer date) terms and conditions that, in its opinion, better accord with those that otherwise prevail in the market.

(7) In forming its opinion under subsection (6) as to terms and conditions that better accord with those that otherwise prevail in the market, the AER may (without limitation) take into account the individual circumstances of the failed retailer and the designated RoLR.

(8) The designated RoLR and distributor or service provider of the transmission pipeline (as the case may be) must, as soon as practicable after the transfer date, commence negotiations for a replacement contract for pipeline services.

(9) If a replacement contract is agreed, the direction ceases to have effect as from the date the replacement contract has effect.

(10) If, after 3 months from the transfer date, no replacement contract has been agreed—

(a) either party may commence an access dispute under Chapter 6 of the NGL; and

(b) the provisions of section 91BH(4) of the NGL apply to the access dispute in the same way as they apply to a determination by the AER of an access dispute referred to in those provisions; and

(c) the direction continues in force for the haulage contract until an access determination has effect under section 184(4) of the NGL.

(11) For the purposes of subsection (10)(a), the failure to agree to a replacement contract is taken to be an access dispute within the meaning of section 178 of the NGL regardless of whether the pipeline concerned is a scheme pipeline within the meaning of section 2 of the NGL.

(12) If the gas sale contract in its terms continues in force despite the RoLR event—

(a) the insolvency official of the failed retailer or the failed retailer (as the case may be) must as soon as practicable after the transfer date commence negotiations with the designated RoLR and the producer or other person who was under the contract selling gas to the failed retailer for—

(i) the novation of the contract; or

(ii) its termination and replacement by a new contract,

between the designated RoLR and the producer or other person; and

(b) if a novation or replacement contract is agreed, the direction ceases to have effect for the gas sale contract as from the date the novation or replacement contract has effect; and

(c) if, after 3 months from the transfer date, there is no agreement—

(i) the insolvency official or failed retailer (as the case may be) must put the gas that is the subject of the contract up for sale by auction and must use their best endeavours to ensure that the auction is completed and the gas is sold within 6 months of the transfer date; and

(ii) the insolvency official or failed retailer (as the case may be) and the producer or other person who was under the contract selling gas to the failed retailer must execute all documents required for both the auction and the sale of gas, including any new gas sale and purchase contract (however named in the contract or elsewhere) or any novation contract consequent on the auction; and

(iii) when the gas has been sold, the direction ceases to have effect for the gas sale contract.

(13) If the gas sale contract in its terms terminates or is terminated because of the RoLR event—

(a) the producer or other person who was under the contract selling gas to the failed retailer (as the case may be) must as soon as practicable after the transfer date commence negotiations with the designated RoLR for a new contract between the designated RoLR and the producer or other person; and

(b) if a new contract is agreed, the direction ceases to have effect for the gas sale contract as from the date the replacement contract has effect; and

(c) if, after 3 months from the transfer date, there is no agreement—

(i) the producer or other person who was under the terminated contract selling gas to the failed retailer (as the case may be) must put the gas that is the subject of the terminated contract up for sale by auction and must use their best endeavours to ensure that the auction is completed and the gas is sold within 6 months of the transfer date; and

(ii) the producer or other person who was under the terminated contract selling gas to the failed retailer (as the case may be) must execute all documents required for both the auction and the sale of gas, including any new gas sale and purchase contract (however named in the contract or elsewhere) consequent on the auction; and

(iii) when the gas has been sold, the direction ceases to have effect for the gas sale contract.

(14) In this section, access determination, distribution pipeline, limited access arrangement, pipeline services, producer, service provider and transmission pipeline have the same meanings as in the NGL and distributor includes a service provider for a pipeline that is not a scheme pipeline within the meaning of the NGL.

138—Service and publication of RoLR notice

(1) A RoLR notice or a notice amending a RoLR notice—

(a) must be given to—

(i) the failed retailer at its registered office and (if different) its principal place of business; and

(ii) any insolvency official of the failed retailer; and

(iii) AEMO; and

(iv) the designated RoLR or RoLRs; and

(v) the distributors; and

(vi) the Ministers of the participating jurisdictions; and

(b) may be given to any other person whom the AER considers appropriate to be served; and

(c) must be published on the AER’s website; and

(d) must be published by AEMO and copies provided by AEMO to all Registered participants within the meaning of the NEL and NGL.

(2) The notice should, if reasonably practicable, be given before being published, but prior publication does not affect the validity or operation of the notice.

(3) The notice is effective, in accordance with its terms, on and from the date of service or the date of publication, whichever first occurs.

139—Publication requirements for RoLR events

(1) Notice of a RoLR event must be published on—

(a) the AER’s website; and

(b) AEMO’s website; and

(c) the failed retailer’s website, if possible; and

(d) the designated RoLR’s website.

(2) Recorded or live messages giving information about the RoLR event must be readily available on—

(a) the failed retailer’s call centre telephone number, if possible; and

(b) the AER’s call centre telephone number; and

(c) the designated RoLR’s call centre telephone number.

(3) If and to the extent the AER considers it necessary or desirable to do so, the AER may place advertisements in newspapers or on radio and television in the area or areas served by the failed retailer giving information about the RoLR event.

(4) This section does not prevent a RoLR plan—

(a) having requirements for notification directly to customers by the designated RoLR (or by any other person) of a RoLR event or of the change of retailer, or both; or

(b) making additional provision for publication of a RoLR event.

140—Transfer of responsibility

(1) Each person who was a customer of a failed retailer immediately before the transfer date—

(a) ceases, by force of this Law, to be a customer of the failed retailer on that date; and

(b) becomes, by force of this Law, a customer of the relevant designated RoLR immediately after so ceasing to be a customer of the failed retailer.

(2) On and from the transfer date, and in relation to the customers transferred to it and subject to and in accordance with the RoLR Procedures, the designated RoLR assumes the functions and powers of the failed retailer under the energy laws, including (without limitation)—

(a) for electricity—in the case of any metering installation where the failed retailer was as at the transfer date the responsible person, the designated RoLR becomes, by force of this Law, the responsible person; and

(b) for electricity—in the case of any other metering installation in respect of which there is as at the transfer date an agreement in force under rule 7.2.3 of the NER between the failed retailer and the Local Network Service Provider, the designated RoLR becomes, by force of this Law, party to that agreement in place of the failed retailer; and

(c) for electricity—in any case where the failed retailer (in its capacity as responsible person) has entered into an agreement under rule 7.2.5 of the NER with a Metering Provider, the designated RoLR by force of this Law becomes, by force of this Law, party to that agreement in place of the failed retailer; and

(d) any function or power prescribed by the National Regulations for the purposes of this section; and

(e) any function or power specified in energy laws for the purposes of, or in connection with matters provided under, this section.

(3) The designated RoLR assumes no financial or other liabilities of the failed retailer under an agreement referred to in subsection (2) where that liability accrues before the transfer date.

(4) The designated RoLR must, if it is notified by the AER, the failed retailer, an insolvency official or a distributor that the premises of a customer of the failed retailer has life support equipment, comply with the obligations as to life support equipment that apply to retailers under the Rules as if the designated RoLR had been notified by the customer.

(5) The designated RoLR must, if it is notified by a customer, the AER, the failed retailer, an insolvency official or a distributor that the customer is in receipt of a tariff payment, credit or other benefit referred to in section 154(2)(h), comply with the feed-in arrangement concerned.

(6) Subject to the RoLR Procedures—

(a) transfers of customers to the failed retailer from another retailer that were under way as at the transfer date are to cease on and from that date; and

(b) those customers instead remain customers of that other retailer on their previous contractual terms and conditions with that retailer; and

(c) despite anything to the contrary in the previous contract with such a customer, the customer may terminate the contract with that other retailer on one month’s notice or a lesser period allowed by the previous terms and conditions.

(7) Subject to the RoLR Procedures, if a large customer in electricity has notified AEMO in writing before the transfer date as to who its retailer (the nominated retailer) will be in a RoLR event and that it has agreed terms and conditions with the nominated retailer, and the nominated retailer has also notified AEMO in writing that it has agreed to be the nominated retailer for that customer—

(a) AEMO may transfer that customer to the nominated retailer rather than the designated RoLR; and

(b) the customer becomes, by force of this Law, a customer of the nominated retailer as at the transfer date on the terms and conditions agreed between the large customer and the nominated retailer.

(8) In this section, Local Network Service Provider, metering installation, Metering Provider and responsible person have the same meanings as in the NER.

141—Termination of customer retail contracts

(1) The contract for the sale of energy between a failed retailer and each person who was a customer of the retailer immediately before the transfer date is terminated on the transfer date by force of this Law.

(2) Termination of a contract under this section does not affect any rights and obligations that have already accrued under the contract, but no early termination charge is payable where a contract is terminated under this section.

(3) Subsection (1) has effect even though the financially responsible retailer might not change from the failed retailer to the relevant designated RoLR until after the transfer date.

(4) Any complaint or dispute between a failed retailer and a small customer (whether the complaint or dispute arose on, before or after the transfer date) may continue to be dealt with as if the failed retailer’s authorisation has not been revoked under section 142, and—

(a) Part 4 continues to apply to the complaint or dispute; and

(b) an insolvency official of the failed retailer is also subject to and bound by Part 4 in dealing with the complaint or dispute.

(5) The insolvency official of a failed retailer or the failed retailer (as the case may be) must take steps to cancel with effect on and from the transfer date any direct debit authorisations (including any Centrepay deductions) that are in place for any customer of the failed retailer. Cancellation of a direct debit authorisation does not affect a customer’s obligation to pay for any energy consumed before the transfer date.

(6) If a customer of a failed retailer has paid amounts to the retailer in advance towards the customer’s energy bill, the insolvency official of the failed retailer or the failed retailer (as the case may be) must—

(a) apply those amounts to the payment of the customer’s account, but only insofar as that payment is for energy consumed before the transfer date; and

(b) pay any balance remaining to the customer.

(7) If a customer has paid the failed retailer in whole or in part for a service order and as at the transfer date the order has not been completed—

(a) the designated RoLR may—

(i) place the order with the relevant distributor; and

(ii) if the order has already been placed, take steps to ensure its completion; and

(b) the customer is not liable to pay for the order except to the extent that the customer had not already paid as at the transfer date.

(8) If a payment plan is in force with the failed retailer, the failed retailer or insolvency official (as the case requires) or their assignees must continue to comply with that plan insofar as it provides for the payment by instalments of any arrears that are outstanding as at the transfer date.

(9) Any security deposit paid by a small customer to a failed retailer (and any interest accrued on that deposit) must be refunded to the customer by the failed retailer or insolvency official without any deduction other than in respect of energy consumed (but not paid for) before the transfer date.

(10) If a small customer is on a prepayment meter market retail contract, a payment equal to the value of any credit remaining in the prepayment meter system account as at the transfer date must be made by the failed retailer or insolvency official to the small customer without any deduction.

142—Revocation of retailer authorisation

(1) If a failed retailer has not already had its authorisation revoked under this Law, the AER may at the same time as it issues the RoLR notice for the retailer, and by endorsement on that notice, revoke the retailer authorisation with effect from the transfer date.

(2) Divisions 5 and 7 of Part 5 do not apply in relation to the revocation of a retailer authorisation under this section, but nothing prevents the AER from applying the revocation process referred to in those Divisions, or any aspect of it, in relation to the revocation if the AER so decides.

143—Compliance requirements following service of RoLR notice

(1) AEMO must, in relation to the RoLR event concerned, comply with the applicable requirements of the notice, this Part, the RoLR Procedures and the National Regulations.

(2) The failed retailer, any insolvency official of the failed retailer and anyone else given a RoLR notice must, in relation to the RoLR event concerned—

(a) comply with the notice; and

(b) comply with the applicable requirements of—

(i) this Part; and

(ii) the RoLR Procedures; and

(iii) the National Regulations.

Note—

Subsection (2)(a) is a civil penalty provision.

(3) A RoLR notice cannot impose requirements on a Minister of a participating jurisdiction without the consent of that Minister.

144—RoLR Procedures

(1) AEMO may include, in procedures that it makes pursuant to the NEL and the NGL, procedures that deal with the following:

(a) any matters relating to the operation or implementation of the RoLR scheme;

(b) without limiting paragraph (a)—

(i) any matter referred to in section 149(2); and

(ii) the transfer of customers from failed retailers to designated RoLRs; and

(iii) the acceleration or cancellation of open transactions; and

(iv) audits and reviews;

(c) without limiting paragraphs (a) and (b)—

(i) in the case of electricity—any matter that the Retail Market Procedures, including B2B Procedures, the Market Settlement and Transfer Solution (MSATS) Procedures and metrology procedure deal with insofar as any of those procedures make provision at the commencement of this section with respect to RoLR events; and

(ii) in the case of gas—any matter that the relevant Retail Market Procedures deal with insofar as those procedures make provision at the commencement of this section with respect to RoLR events;

(d) any other matter relevant to the RoLR scheme;

(e) any matter consequential on or related to any of the above.

(2) Procedures that AEMO makes pursuant to this section may—

(a) apply to electricity or gas separately; and

(b) vary according to the persons, times, places or circumstances to which they are expressed to apply; and

(c) confer functions or powers on, or leave any matter or thing to be decided by, AEMO; and

(d) confer rights or impose obligations on retailers (including failed retailers), insolvency officials of failed retailers, distributors, the AER, AEMO or other persons; and

(e) confer power on AEMO to make or issue guidelines, tests, standards and other documents of an administrative nature; and

(f) confer power on AEMO to require a person on whom a right is conferred, or an obligation imposed, under the procedures—

(i) to comply with a guideline, standard or other document of an administrative nature; or

(ii) to conduct, or submit to, a test designed by AEMO under the procedures; and

(g) exempt, or confer a power of exemption, from the application of the procedures or specified provisions of the procedures; and

(h) contain provisions of a savings or transitional nature.

(3) AEMO must not, without the consent of the MCE, make procedures pursuant to this section that confer a right or function, or impose an obligation, on the MCE or a Minister of a participating jurisdiction.

(4) Procedures made pursuant to this section cannot—

(a) create an offence; or

(b) provide for a civil penalty.

(5) Procedures made pursuant to this section are referred to in this Part as RoLR Procedures.

Division 6—Arrangements for sale of energy to transferred customers

145—Contractual arrangements for sale of energy to transferred small customers

(1) This section applies where a person who was a small customer of a failed retailer immediately before the transfer date becomes, by force of this Law, a customer of the relevant designated RoLR.

(2) An arrangement (a RoLR deemed small customer retail arrangement) is taken to apply between the relevant designated RoLR and the small customer with effect on and from the transfer date.

(3) The terms and conditions of the RoLR deemed small customer retail arrangement are the terms and conditions of the relevant designated RoLR’s standard retail contract.

(4) The prices applicable to the RoLR deemed small customer retail arrangement are the relevant designated RoLR’s standing offer prices, with any variations in accordance with or consequent on the applicable RoLR cost recovery scheme determined under Division 9.

(5) This section has effect even though the failed retailer might not cease to be the financially responsible retailer for the premises of the small customer until after the transfer date.

146—Contractual arrangements for sale of energy to transferred large customers

(1) This section applies where a person who was a large customer of a failed retailer immediately before the transfer date becomes, by force of this Law, a customer of the relevant designated RoLR (see section 140).

(2) An arrangement (a RoLR deemed large customer retail arrangement) is taken to apply between the designated RoLR and the large customer with effect on and from the transfer date.

(3) The terms and conditions of the RoLR deemed large customer retail arrangement are the terms and conditions published by the designated RoLR on its website, but they must be fair and reasonable.

(4) This section has effect even though the failed retailer might not cease to be the financially responsible retailer for the premises of the large customer until after the transfer date.

147—Duration of arrangements for small customers

(1) A RoLR deemed small customer retail arrangement ceases to be in operation if a customer retail contract is formed in relation to the premises, but this subsection does not affect any rights or obligations that have already accrued under that arrangement.

(2) There is no minimum period for the small customer to remain with a designated RoLR on a RoLR deemed small customer retail arrangement.

(3) If the small customer is still a customer of a designated RoLR on a RoLR deemed small customer retail arrangement at the end of the period of 3 months after the transfer date, a standard retail contract, in the form of the designated RoLR’s standard retail contract, is taken to have been formed between the small customer and the designated RoLR.

(4) After that period of 3 months (but not earlier unless the designated RoLR agrees), the small customer and designated RoLR may seek to negotiate a market retail contract in accordance with section 33.

148—Duration of arrangements for large customers

(1) A RoLR deemed large customer retail arrangement ceases to be in operation if a contract for the sale of energy is formed in relation to the premises, but this subsection does not affect any rights or obligations that have already accrued under that arrangement.

(2) There is no minimum period for the large customer to remain with a RoLR on a RoLR deemed large customer retail arrangement.

(3) The designated RoLR and the large customer may agree to terminate the deemed large customer retail arrangement at any time.

(4) The designated RoLR may, at any time, serve a notice on the large customer stating that the RoLR deemed large customer retail arrangement will be terminated after the period of 6 months after the transfer date unless a retail contract is negotiated and formed in relation to the premises before the end of that period. The designated RoLR is, however, under no obligation to initiate negotiations with the large customer.

(5) The designated RoLR may terminate the arrangement in accordance with the terms and conditions of the deemed large customer retail arrangement after the end of that period.

Division 7—Information requirements

Subdivision 1—Preliminary

149—Operation of this Division

(1) This Division does not limit the information for or in connection with a RoLR event that AEMO may require a failed retailer (or its insolvency official) to provide to it, to distributors and to designated RoLRs (or to any of them) under the RoLR scheme, the NEL or NGL or the NER or NGR.

(2) To avoid doubt, AEMO may under the RoLR Procedures require a failed retailer or its insolvency official to provide to AEMO, distributors or designated RoLRs, for or in connection with a RoLR event, customer details, customer site details information and other customer information, including information that in circumstances other than a RoLR event is not usually provided.

Subdivision 2—General obligation to notify AER

150—Information to be provided to AER by AEMO and retailers

(1) AEMO must without delay notify the AER of any event, circumstance or matter of which AEMO is aware and which—

(a) it has reason to believe—

(i) might be, is or may be at some time in the future an event, circumstance or matter that may or will affect; or

(ii) gives rise to some risk of affecting,

a retailer’s ability to maintain continuity of the sale of energy to its customers; or

(b) gives rise to, or gives rise to some risk of, a RoLR event.

(2) A retailer must without delay notify the AER and AEMO of any event, circumstance or matter of which the retailer is aware and which—

(a) it has reason to believe—

(i) might be, is or may be at some time in the future an event, circumstance or matter that may or will affect; or

(ii) gives rise to some risk of affecting,

the retailer’s ability to maintain continuity of the sale of energy to its customers; or

(b) gives rise to a RoLR event in relation to the retailer.

Subdivision 3—Serving and making of RoLR regulatory information notices

151—Meaning of RoLR regulatory information notice

(1) A RoLR regulatory information notice is a notice prepared and served by the AER in accordance with this Division that requires the retailer (or former retailer) named in the notice to provide specified information to any one or more of the following as specified in the notice:

(a) the AER;

(b) AEMO;

(c) a registered RoLR;

(d) a distributor.

(2) If the notice is also served on an insolvency official of the retailer, the insolvency official is required to provide the information.

152—Service of RoLR regulatory information notice

(1) The AER may serve a RoLR regulatory information notice on a retailer (or former retailer) if it considers it reasonably necessary to do so in connection with either—

(a) a RoLR event that has occurred; or

(b) the exercise of the AER’s powers under Division 3, whether or not a RoLR event has occurred.

(2) A RoLR regulatory information notice must not be served solely for the purpose of—

(a) investigating breaches or possible breaches of provisions of the national energy legislation, including offences against the national energy legislation; or

(b) instituting and conducting proceedings in relation to breaches of provisions of the national energy legislation, including offences against the national energy legislation; or

(c) instituting and conducting appeals from decisions in proceedings referred to in paragraph (b); or

(d) collecting information for the preparation of a retail market performance report; or

(e) obtaining information about a RoLR cost recovery scheme under Division 9.

(3) A notice served on a retailer (or a former retailer) must also be served on the insolvency official (if any) of the retailer.

Subdivision 4—Form and content of RoLR regulatory information notices

153—Form and content of RoLR regulatory information notice

A RoLR regulatory information notice—

(a) must name the retailer (or former retailer) to whom it applies; and

(b) must specify the information required to be provided; and

(c) must specify to whom the information described in the notice is to be provided; and

(d) may specify the manner and form in which the information described in the notice is required to be provided; and

(e) must specify when the information must be provided.

154—Further provision about the information that may be described in a RoLR regulatory information notice

(1) Without limiting section 153(b), the information that may be required to be provided may include the following:

(a) historic, current and forecast information;

(b) information that is or may be derived from other information in the possession or control of the retailer.

(2) Without limiting section 153(b), the information that may be required to be provided in relation to a RoLR event may include the following:

(a) the names and contact details (including billing addresses) of all the retailer’s customers;

(b) the addresses at which those customers are supplied energy (if a supply address is different from the billing address);

(c) the meter identifier for each of those customers;

(d) the network tariff code or codes of the distributor for each of those customers;

(e) details of each customer’s actual consumption of energy in one or more specified periods;

(f) whether any customer is a hardship customer and if so details of which customer;

(g) whether the premises of any customer are registered by the retailer under the Rules as having life support equipment and if so details of which premises;

(h) whether any customer is in receipt of a tariff payment, credit or other benefit under a feed-in arrangement prescribed by the National Regulations for the purposes of this paragraph, and if so details of which customer and details of the payment, credit or other benefit;

(i) details of customer classification under the Rules (see section 7);

(j) details of any pension, health or social security payments to, rebates for or benefits or concessions of a customer;

(k) in the case of a failed retailer—any direct debit arrangements by a customer, or Centrepay arrangements, with the retailer.

155—Further provision about manner in which information must be provided

Without limiting section 153, a RoLR regulatory information notice may require that the information specified in the notice—

(a) be provided on the occurrence of a specified event or state of affairs; and

(b) be provided in accordance with any document, code, standard, rule, specification or method formulated, issued, prescribed or published by the AER, AEMO or any person, authority or body whether—

(i) wholly or partially or as amended by the notice; or

(ii) as formulated, issued, prescribed or published at the time the notice is served or at any time before the notice is served; or

(iii) as amended from time to time; and

(c) be verified by way of statutory declaration by an officer of the retailer to whom the notice applies.

Subdivision 5—Compliance with RoLR regulatory information notices

156—Compliance with RoLR regulatory information notices

(1) On being served a RoLR regulatory information notice, a retailer (or former retailer) named in the notice must comply with the notice.

(2) If the notice is also served on an insolvency official of the retailer—

(a) the insolvency official must comply with the notice by providing the required information; and

(b) despite subsection (1), the retailer is not required to provide information provided by the insolvency official.

Note—

This section is a civil penalty provision.

157—Provision of information obtained from RoLR regulatory information notice

If a RoLR event has occurred, information (including confidential information or personal information within the meaning of the Privacy Act 1988 of the Commonwealth or of any Act of a participating jurisdiction relating to privacy) that the AER received pursuant to a RoLR regulatory information notice may be given by the AER to AEMO, distributors, a designated RoLR and any other person whom the AER considers it necessary to give the information to.

Subdivision 6—General

158—Providing false or misleading information

A person must not, in purported compliance with a RoLR regulatory information notice requiring the person to provide information, provide information that the person knows is false or misleading in a material particular.

Maximum penalty:

(a) in the case of a natural person—$2 000;

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

159—Person cannot rely on duty of confidence to avoid compliance with RoLR regulatory information notice

(1) A person must not refuse to comply with a RoLR regulatory information notice on the ground of any duty of confidence.

(2) A person incurs, by complying with a RoLR regulatory information notice, no liability for breach of contract, breach of confidence or any other civil wrong.

160—Legal professional privilege not affected

A RoLR regulatory information notice, and section 156, are not to be taken as requiring a person to—

(a) provide information that is the subject of legal professional privilege; or

(b) produce a document the production of which would disclose information that is the subject of legal professional privilege.

161—Protection against self-incrimination

It is a reasonable excuse for a natural person to whom section 156 applies not to comply with a RoLR regulatory information notice served on the person requiring the person to provide information if to do so might tend to incriminate the person, or make the person liable to a criminal penalty, under a law of this jurisdiction or another participating jurisdiction.

Division 8—RoLR plans

162—RoLR plans

(1) The AER must, in consultation with AEMO and Ministers of participating jurisdictions, develop, make and maintain RoLR plans.

(2) A RoLR plan is a plan for—

(a) the procedures to be followed by the participants in the event of a RoLR event, including direct communication with customers of a failed retailer; and

(b) regular exercises to be carried out by the participants in the plan.

(3) A RoLR plan must not be inconsistent with the RoLR Procedures.

(4) The participants in a RoLR plan are—

(a) the AER; and

(b) AEMO; and

(c) the registered RoLR or registered RoLRs nominated by the AER; and

(d) the distributor or distributors nominated by the AER; and

(e) other parties nominated by the AER.

(5) The AER must ensure that the participants in a RoLR plan—

(a) are consulted in the development and maintenance of the plan; and

(b) participate in regular exercises as provided in the plan.

(6) Each participant in a RoLR plan must use its best endeavours—

(a) to comply with the plan; and

(b) to assist in the development and maintenance of the plan; and

(c) to participate in regular exercises as provided in the plan.

(7) A RoLR plan must be published on the AER’s website.

(8) The AER must ensure that a RoLR plan is reviewed at such times as it considers appropriate and kept up to date to accord with the review outcomes.

163—Contents of RoLR plans

Without limitation, a RoLR plan must—

(a) provide that exercises are to be held at such times as the AER considers appropriate and that a report on the conduct of each exercise be published on the AER’s website; and

(b) include, in the event of a RoLR event, strategies to quickly and effectively communicate—

(i) to the affected community—general details of the event; and

(ii) to affected small customers—details of the event and available options; and

(iii) to affected large customers—details regarding prices for energy, available alternative retailers and how they can quickly disconnect their energy supply if necessary; and

(iv) to Ministers of participating jurisdictions—details of the event; and

(v) to departmental and other officers in affected jurisdictions—details of the event; and

(vi) to energy ombudsmen in affected jurisdictions—details of the event; and

(vii) to the failed retailer and any insolvency official of the failed retailer—information regarding their obligations; and

(viii) with AEMO—details regarding the event with a view to ensuring that resources are available to effect customer transfers; and

(ix) with affected distributors—details of the event and information regarding their obligations; and

(x) with the designated RoLR or designated RoLRs—details of the event and information regarding its or their obligations; and

(c) include, in the event of a RoLR event, strategies for the designated RoLR to quickly and effectively communicate to affected small customers—

(i) details of what happens with their existing contracts with the failed retailer, which must include details of the effect of sections 140 and 141 as to hardship customers, customers on life support, feed-in arrangements, termination of direct debits (including Centrepay), refunds of advance payments, security deposits, credits on prepayment meter system accounts and uncompleted service orders; and

(ii) details as to the designated RoLR and the arrangements that apply for the sale of energy; and

(d) include a mechanism whereby—

(i) details of customers that are hardship customers; and

(ii) details of premises registered as having life support equipment,

are quickly and effectively communicated to the relevant designated RoLR.

Division 9—RoLR cost recovery schemes

164—Operation of this Division, schemes and determinations

This Division and a RoLR cost recovery scheme under this Division have effect despite anything in the following:

(a) the NEL and NER;

(b) the NGL and NGR;

(c) any distribution determination;

(d) any applicable access arrangement.

165—RoLR cost recovery

A registered RoLR (including but not limited to a designated RoLR) cannot recover costs incurred in relation to the RoLR scheme except in accordance with a RoLR cost recovery scheme determined under this Division.

166—RoLR cost recovery schemes

(1) The AER must, on application by a registered RoLR, determine a RoLR cost recovery scheme for the RoLR.

(2) The application must be in the form and contain the information specified in the AER RoLR Guidelines.

(3) A RoLR cost recovery scheme is a scheme designed for the recovery by the RoLR of costs incurred by the RoLR in relation to the RoLR scheme, including—

(a) in the case of a default RoLR only—costs incurred in preparing for RoLR events; and

(b) in the case of a designated RoLR only—costs incurred on and after a RoLR event, including—

(i) costs paid to an insolvency official of a failed retailer in respect of anything done under this Part; and

(ii) costs paid to a distributor by the RoLR for service orders and not recoverable from the customers concerned or from the failed retailer.

Notes—

1 Regarding subparagraph (i) above, see section 171.

2 Regarding subparagraph (ii) above, section 141(7) deals with the case where a customer has paid the failed retailer for a service order and the order has not been completed as at the transfer date.

(4) The AER may, after receipt of an application made under subsection (1), request from the retailer such additional information as the AER considers reasonably necessary for it to determine the application. The retailer must comply with any such request.

(5) The AER must publish on its website a notice of the application. A notice published pursuant to this subsection must invite submissions on the application within a specified period of at least 20 business days.

(6) The AER must decide whether to grant or refuse the application.

(7) The AER must, when making its decision on the application, be guided by the following principles:

(a) the registered RoLR should be provided with a reasonable opportunity to recover the reasonable costs that it incurs with respect to the RoLR scheme;

(b) the recovery of costs should allow for a return commensurate with the regulatory and commercial risks with respect to the RoLR scheme;

(c) the registered RoLR will itself bear some of the costs, in proportion to its customer base.

Note—

The AER must also have regard to the national energy retail objective.

(8) The AER may, in determining a RoLR cost recovery scheme, limit either generally or in particular cases or classes of cases the costs (and the amount of those costs) that are recoverable.

(9) Without limitation, the AER’s determination of a RoLR cost recovery scheme may, so far as it relates to or affects tariffs payable by customers, differ between customers and classes of customers.

(10) The AER must publish a copy of its decision on its website.

167—RoLR cost recovery scheme distributor payment determination

(1) The AER must, as part of its determination with respect to a RoLR cost recovery scheme under this Division and after consultation with the distributor or distributors concerned, make a determination (a RoLR cost recovery scheme distributor payment determination) that one or more distributors are to make payments towards the costs of the scheme.

(2) A RoLR cost recovery scheme distributor payment determination is taken to be both a regulatory change event and a positive change event for the purposes of the NER.

(3) Distributors are required to make payments to a RoLR in accordance with their liability under a RoLR cost recovery scheme distributor payment determination.

(4) The distribution determination or applicable access arrangement (as the case may be) of each distributor who is to make payments under a RoLR cost recovery scheme distributor payment determination is taken to be amended so that any payments the distributor so makes are taken to be—

(a) in the case of electricity—positive pass through amounts approved under the NER; or

(b) in the case of gas—approved cost pass throughs allowing variation of the distributor’s reference tariffs.

(5) Notwithstanding any other provision of this Division, if a designated RoLR (other than a default RoLR) agrees with the AER that it will seek to recover no costs or only a particular figure or percentage of its costs, the designated RoLR may not afterwards seek to recover any more than as agreed.

Note—

See also section 133(2).

(6) Section 23(5) does not apply to a retailer in respect of a variation of its standing offer prices as a result of a RoLR cost recovery scheme.

168—Amendment of schemes and determinations

A RoLR cost recovery scheme or a RoLR cost recovery scheme distributor payment determination may be amended by determination of the AER—

(a) on application by, or after consultation with, the registered RoLR and after consultation with the distributors who are or will be affected; or

(b) on application by a distributor who is or will be affected and after consultation with the registered RoLR and other distributors who are or will be affected.

Division 10—Miscellaneous

169—Information to be included in customer retail contracts

All customer retail contracts for small customers must include a notice explaining what will happen to the customer’s arrangements for the purchase of energy if a RoLR event occurs.

170—Application for retailer authorisation by failed retailer or associate

(1) If a failed retailer or an associate of a failed retailer applies for a retailer authorisation, the AER may—

(a) refuse the application on the ground that the applicant is a failed retailer or an associate of a failed retailer; or

(b) grant the application on the condition that the applicant pays a proportion or the whole of the costs of a prior RoLR event as determined by the AER.

(2) Any payment determined by the AER under subsection (1) is to be made to the relevant distributors (as determined by the AER) and—

(a) in the case of electricity—the determination by the AER is taken to be a regulatory change event and negative change event for the purposes of the NER and the payment is taken to be a negative pass through amount approved by the AER under the NER; and

(b) in the case of gas—the payment is taken to be an approved pass through allowing variation of a distributor’s reference tariffs.

(3) Subsection (1) does not limit the operation of Part 5 in relation to an application referred to in that subsection.

(4) In this section—

associate, in relation to a failed retailer, has the same meaning it would have under Division 2 of Part 1.2 of the Corporations Act 2001 of the Commonwealth if sections 13, 16(2) and 17 did not form part of that Act.

171—Reimbursement of insolvency official

(1) In the event of a RoLR event, the insolvency official of a failed retailer is entitled to be indemnified by the relevant designated RoLR for the official’s reasonable costs of complying with applicable requirements of the RoLR scheme, a RoLR notice or a RoLR regulatory information notice.

(2) Any dispute about the insolvency official’s reasonable costs is to be dealt with by the Court in the same way as a dispute as to a liquidator’s remuneration is dealt with under section 473 of the Corporations Act 2001 of the Commonwealth.

172—AER report on RoLR event

(1) The AER must prepare, in consultation with AEMO, a report for the MCE on a RoLR event and provide it to the MCE within 80 business days of the transfer date or such later time as the MCE agrees.

(2) The report—

(a) must address the facts and circumstances that gave rise to the event; and

(b) must describe the actions that the AER, AEMO and the designated RoLRs took with respect to the event; and

(c) must, if the MCE has in writing requested it to do so, address or describe any other matter that the MCE so requests; and

(d) may contain recommendations as to the handling of future events.

(3) The report may contain information given to the AER in confidence but if it does so, it must identify that information in the report.

173—Immunity

(1) A protected person does not incur any civil monetary liability for an act or omission done or made under or for the purposes of the RoLR scheme unless the act or omission is done or made in bad faith.

(2) Without limiting subsection (1), a protected person does not incur any civil monetary liability in respect of the termination of a contract for the sale of energy under section 141.

(3) In this section—

protected person means—

(a) the AER; or

(b) AEMO; or

(c) a designated RoLR; or

(d) a distributor; or

(e) an officer or employee of, or another person whose services are used by, a person referred to in paragraphs (a) to (d) (including, without limitation, any staff or consultants who are made available to assist the AER to exercise its functions).

174—Authorised disclosure of information

To the extent that the information is personal information within the meaning of the Privacy Act 1988 of the Commonwealth or of any Act of a participating jurisdiction relating to privacy—

(a) disclosure of that information to the AER, AEMO, a distributor or a designated RoLR for or in connection with the RoLR scheme is authorised by this Law; and

(b) use of that information for or in connection with the RoLR scheme is authorised by this Law.

175—Corporations Act displacement

This Part is declared to be a Corporations legislation displacement provision for the purposes of section 5G of the Corporations Act 2001 of the Commonwealth in relation to the provisions of Chapter 5 of that Act.

Note—

Section 5G of the Corporations Act 2001 provides that if a State or Territory law declares a provision of a State or Territory law to be a Corporations legislation displacement provision, any provision of the Corporations legislation with which the State or Territory provision would otherwise be inconsistent does not apply to the extent necessary to avoid the inconsistency.

Part 7—Small compensation claims regime

Division 1—Preliminary

176—Small compensation claims regime

(1) This Division establishes a small compensation claims regime to enable small customers to make small claims for compensation from distributors who provide customer connection services to their premises.

(2) The regime does not involve having to establish fault, negligence or bad faith on the part of a distributor in order to receive compensation from the distributor under the regime.

177—Definitions

In this Division—

claimable incident—see section 178;

compensable matter—see section 179;

discretionary range means the range of amounts between the maximum amount and the median amount (inclusive of the former but not the latter);

mandatory range means the range of amounts between the minimum amount and the median amount (inclusive of both);

maximum amount—see section 180;

median amount—see section 182;

minimum amount—see section 181;

property damage means damage to tangible property located on the premises of a small customer, and includes loss or destruction of tangible property located on those premises;

repeat claimant—see section 183.

Note—

The discretionary and mandatory ranges, and the maximum, median and minimum amounts, can be represented as follows: