South Australian Numbered Acts South Australian Numbered Acts46—Amendment of the NEL—New Divisions 3A and 3B of Part 6 inserted
NEL—after section 71 insert:
Division 3A—Merits review and other non-judicial review
Subdivision 1—Interpretation
71A—Definitions
In this Division—
"AER information disclosure decision" means a decision of the AER under
section 28ZB to disclose information, or the contents of a document;
"affected or interested person or body" means—
(a) a
regulated network service provider to whom the reviewable regulatory decision
applies;
(b) a
network service provider, user, prospective user or end user whose commercial
interests are materially affected by the reviewable regulatory decision;
(c) a
user or consumer association;
"applicant" means—
(a) an
affected or interested person or body who has been granted leave to apply for
review by the Tribunal under Subdivision 2; or
(b) a
person who makes an application under section 71S;
"average annual regulated revenue" means the annual average of
regulated revenue calculated for the regulatory period of a network revenue or
pricing determination;
"intervener" means a person or body referred to in section 71J, 7IK or
71L who has intervened in a review under Subdivision 2 with the leave of the
Tribunal or otherwise;
"prospective user" means a person who—
(a) is a
Registered participant, or is capable of becoming a Registered participant;
and
(b)
seeks or wishes to be provided with an electricity service,
but does not include a network service provider;
"regulatory period" means the period specified in a network revenue or pricing
determination to be the regulatory period;
"regulated revenue" means the total revenue earned or to be earned by a
regulated network service provider—
(a)
under; and
(b)
during the regulatory period of,
a network revenue or pricing determination through the provision of the direct
control network services to which that determination applies;
"reviewable regulatory decision" means—
(a) a
network revenue or pricing determination that sets a regulatory period; or
(b) any
other determination (including a distribution determination or transmission
determination) or decision of the AER under the Rules that is prescribed by
the Regulations to be a reviewable regulatory decision,
but does not include a decision of the AER made under Division 6 of Part 3;
"review under this Division" means a review under Subdivision 2 or Subdivision
3;
"small to medium user or end user" means a user or end user whose annual
consumption of electricity does not exceed a level (expressed in megawatt
hours) fixed by Regulation for the purposes of this definition;
"user" means a person who—
(a) is a
Registered participant, or is capable of becoming a Registered participant;
and
(b) is
provided with an electricity service,
but does not include a network service provider;
"user or consumer association" means an association or body (whether
incorporated or unincorporated)—
(a) the
members of which include more than 1 user, prospective user or end user; and
(b) that
represents and promotes the interests of those members in relation to the
provision of electricity services;
"user or consumer interest group" means an association or body (whether
incorporated or unincorporated)—
(a) that
has, as an object or purpose, the object or purpose of representing and
promoting the interests of users or prospective users or end users of
electricity services; but
(b) the
members of which need not include a user, prospective user or end user;
"user or consumer intervener" means—
(a) a
user or consumer association; or
(b) a
user or consumer interest group,
that has made a submission or comment in relation to the making of a
reviewable regulatory decision following an invitation to do so by the AER
under this Law or the Rules.
Subdivision 2—Merits review for reviewable regulatory decisions
71B—Applications for review
(1) An
affected or interested person or body, with the leave of the Tribunal, may
apply to the Tribunal for a review of a reviewable regulatory decision.
(2) An application
must—
(a) be
made in the form and manner determined by the Tribunal; and
(b)
specify the grounds for review being relied on.
71C—Grounds for review
(1) An application
under section 71B(1) may be made only on 1 or more of the following
grounds:
(a) the
AER made an error of fact in its findings of facts, and that error of fact was
material to the making of the decision;
(b) the
AER made more than 1 error of fact in its findings of facts, and that those
errors of fact, in combination, were material to the making of the decision;
(c) the
exercise of the AER's discretion was incorrect, having regard to all the
circumstances;
(d) the
AER's decision was unreasonable, having regard to all the circumstances.
(2) It is for the
applicant to establish a ground listed in subsection (1).
71D—By when an application must be made
An application under section 71B(1) in respect of a reviewable
regulatory decision must be made no later than 15 business days after the
reviewable regulatory decision is published in accordance with this Law or the
Rules.
71E—Tribunal must not grant leave unless serious issue to be heard and
determined
Subject to this Subdivision, the Tribunal must not grant leave to apply under
section 71B(1) unless it appears to the Tribunal that there is a serious
issue to be heard and determined as to whether a ground for review set out in
section 71C(1) exists.
71F—Leave must be refused if application is about an error relating to
revenue amounts below specified threshold
(1) This section
applies if—
(a)
leave to apply under section 71B(1) is in relation to a
reviewable regulatory decision that is a network revenue or pricing
determination; and
(b) the
ground for review relied on by the applicant relates to the amount of revenue
that may be earned by a regulated network service provider that is specified
in or derived from that decision.
(2) Despite
section 71E, the Tribunal must not grant leave to apply under
section 71B(1) even if there is a serious issue to be heard and
determined as to whether a ground for review set out in section 71C(1)
exists unless the amount that is specified in or derived from the decision
exceeds the lesser of $5 000 000 or 2% of the
average annual regulated revenue of the regulated network service provider.
71G—Tribunal must refuse to grant leave if submission not made or is
made late
The Tribunal must not grant leave to apply under section 71B(1) to a
person or body referred to in paragraph (b) or (c) of the definition of
"affected or interested person or body" if that person or body—
(a) did
not make a submission or comment in relation to the making of the decision
following an invitation by the AER to do so under this Law or the Rules; or
(b) did
make a submission or comment in relation to the making of the decision
following an invitation by the AER to do so under this Law or the Rules
but—
(i)
that submission was not made within the time required
under this Law or the Rules following that invitation; and
(ii)
the AER chose not to take that submission or comment into
account in making the decision.
71H—Tribunal may refuse to grant leave to service provider in certain
cases
(1) This section
applies—
(a) in
relation to an application under section 71B(1) by a regulated
network service provider for a review of a reviewable regulatory decision that
applies to the service provider; and
(b) if
the Tribunal is satisfied of the matters set out in section 71E or 71F to
grant leave to apply under section 71B(1).
(2) Despite being
satisfied of the matters set out in section 71E or 71F to grant leave to
apply under section 71B(1), the Tribunal may refuse to grant leave to the
regulated network service provider if the Tribunal is satisfied the service
provider—
(a)
without reasonable excuse—
(i)
failed to comply with a request (including a request for
relevant information), or a direction, of the AER made under this Law or the
Rules for the purpose of making the decision; or
(ii)
conducted itself in a manner that resulted in the making
of the decision of the AER being delayed; or
(b)
misled, or attempted to mislead, the AER on a matter relevant to the AER's
decision.
71I—Effect of application on operation of
reviewable regulatory decisions
An application under section 71B(1)—
(a) does
not stay the operation of a network revenue or pricing determination;
(b)
stays the operation of any other reviewable regulatory decision on the
granting of leave to apply by the Tribunal, unless the Tribunal otherwise
orders.
71J—Intervention by others in a review without leave
Only the following persons may intervene in a review under this Subdivision
without leave of the Tribunal:
(a) a
regulated network service provider to whom the reviewable regulatory decision
being reviewed applies (if that provider is not the applicant);
(b) a
Minister of a participating jurisdiction.
7IK—Leave for reviewable regulatory decision process participants
(1) The Tribunal must
grant leave to a person or body to intervene in a review under this
Subdivision if that person or body is a reviewable regulatory
decision process participant.
(2) In this
section—
"reviewable regulatory decision process participant" means a person or body
(other than a user or consumer intervener) with a sufficient interest in the
reviewable regulatory decision being reviewed who—
(a) has
made a submission or comment in relation to the making of that decision within
the time required under this Law or the Rules following an invitation by the
AER to do so; or
(b) has
made a submission or comment in relation to the making of that decision
outside the time required under this Law or the Rules following an invitation
by the AER to do so but which the AER chose to take into account in making
that decision.
71L—Leave for user or consumer intervener
(1) A
user or consumer intervener may apply to the Tribunal for leave to intervene
in a review of a reviewable regulatory decision under this Subdivision.
(2) The Tribunal may
grant leave to a user or consumer intervener to intervene in a review under
this Subdivision.
(3) Without limiting
subsection (2), the Tribunal may grant leave to a
user or consumer intervener to intervene in a review under this Division if
the Tribunal is satisfied—
(a) the
user or consumer intervener, in its application for leave to intervene, raises
a matter that will not be raised by the AER or the applicant; or
(b) the
information or material the user or consumer intervener wishes to present, or
the submissions the user or consumer intervener wishes to make, in the review
is likely to be better presented if submitted by the user or consumer
intervener rather than another party to the review; or
(c) the
interests of the user or consumer intervener or its members are affected by
the decision being reviewed.
(4) For the purposes
of subsection (3)(c)—
(a) the
interests of a user or consumer intervener are to be taken to be affected if
the reviewable regulatory decision being reviewed relates to an object or
purpose of the user or consumer intervener;
(b) the
interests of a user or consumer intervener are not to be taken to not be
affected only because those interests do not coincide with the interests of
the applicant.
71M—Interveners may raise new grounds for review
(1) An intervener may
raise in a review under this Subdivision any of the grounds specified in
section 71C even if the ground that is raised by the intervener is not
raised by the applicant.
(2) To avoid doubt, it
is for the intervener to establish the ground referred to in
subsection (1).
71N—Parties to a review under this Subdivision
The parties to a review under this Subdivision are—
(a) the
applicant; and
(b) AER;
and
(c) an
intervener.
71O—Matters that parties to a review may and may not raise in a review
(1) The AER, in a
review under this Subdivision, may raise—
(a) a
matter not raised by the applicant or an intervener that relates to a ground
for review, or a matter raised in support of a ground for review, raised by
the applicant or an intervener;
(b) a
possible outcome or effect on the reviewable regulatory decision being
reviewed that the AER considers may occur as a consequence of the Tribunal
making a determination setting aside or varying the reviewable regulatory
decision.
(2) A party (other
than the AER) to a review under this Subdivision may not raise any matter that
was not raised in submissions to the AER before the
reviewable regulatory decision was made.
71P—Tribunal must make determination
(1) If, following an
application, the Tribunal grants leave in accordance with section 71B(1),
the Tribunal must make a determination in respect of the application.
Note—
See section 71Q for the time limit within which the Tribunal must make
its determination.
(2) A determination
under this section may—
(a)
affirm, set aside or vary the reviewable regulatory decision;
(b)
remit the matter back to the AER to make the decision again, in accordance
with any direction or recommendation of the Tribunal.
(3) For the purposes
of making a determination of the kind in subsection (2)(a), the Tribunal
may perform all the functions and exercise all the powers of the AER under
this Law or the Rules.
(4) In deciding
whether to remit a matter back to the AER to make the decision again, the
Tribunal must have regard to the nature and relative complexities of—
(a) the
reviewable regulatory decision; and
(b) the
matter the subject of the review.
(5) A determination by
the Tribunal affirming, setting aside or varying the
reviewable regulatory decision is, for the purposes of this Law (other than
this Part), to be taken to be a decision of the AER.
71Q—Target time limit for Tribunal for making a determination under this
Subdivision
(1) The Tribunal must
use its best endeavours to make a determination in respect of the application
for review under this Subdivision—
(a)
within 3 months after the Tribunal grants leave in accordance with
this Subdivision (the "standard period"); or
(b) if
the standard period is extended under this section—that period as
extended.
(2) If the Tribunal is
unable to make a determination in respect of the application within the
standard period, or that period as extended, the Tribunal must, by notice in
writing, extend the standard period or that period by a specified period.
(3) The Tribunal must
give a copy of the notice to—
(a) the
applicant; and
(b)
every other party to the application.
(4) The Tribunal may
extend the standard period, or that period as extended, more than once.
(5) If the Tribunal
extends a period, it must publish a notice in a newspaper circulating
generally throughout Australia and on its website—
(a)
stating that it has done so; and
(b)
specifying a date by which it must now use its best endeavours to make the
determination.
71R—Matters to be considered by Tribunal in making determination
(1) Subject to this
section, the Tribunal, in reviewing a reviewable regulatory decision, must not
consider any matter other than review related matter.
(2) The Tribunal, in
reviewing a reviewable regulatory decision, must have regard to any
document—
(a)
prepared, and used, by the AER for the purpose of making the
reviewable regulatory decision; and
(b) that
the AER has made publicly available.
(3) In addition, if in
a review, the Tribunal is of the view that a ground of review has been
established, the Tribunal may allow new information or material to be
submitted if the new information or material—
(a)
would assist it on any aspect of the determination to be made; and
(b) was
not unreasonably withheld from the AER when it was making the
reviewable regulatory decision.
(4) Subject to this
Law, for the purpose of subsection (3)(b), information or material not
provided to the AER following a request for that information or material by it
under this Law or the Rules is to be taken to have been unreasonably withheld.
(5)
Subsection (5) does not limit what may constitute an unreasonable
withholding of information or material.
(6) In this
section—
"review related matter" means—
(a) the
application for review and submissions in support of the application; and
(b) the
reviewable regulatory decision and the written record of it and any written
reasons for it; and
(c) in
the case of a reviewable regulatory decision that is a network revenue or
pricing determination—any document, proposal or information required or
allowed under the Rules to be submitted as part of the process for the making
of the determination; and
(d) any
written submissions made to the AER before the reviewable regulatory decision
was made; and
(e) any
reports and materials relied on by the AER in making the
reviewable regulatory decision; and
(f) any
draft of the reviewable regulatory decision; and
(g) any
submissions on the draft of the reviewable regulatory decision or the
reviewable regulatory decision itself considered by the AER; and
(h) the
transcript (if any) of any hearing conducted by the AER for the purpose of
making the reviewable regulatory decision.
Subdivision 3—Tribunal review of AER information disclosure decisions
under section 28ZB
71S—Application for review
(1) A person whose
interests are adversely affected by an AER information disclosure decision may
apply to the Tribunal for a review of the decision.
(2) An application
must be made in the form and manner determined by the Tribunal.
(3) An application may
only be made on the ground that—
(a) the
decision was not made in accordance with law; or
(b) the
decision is unreasonable having regard to all relevant circumstances.
(4) The person must
lodge the application with the Tribunal no later than 5 business days after
the date of the notice given under section 28ZB(2), (3) or (6) to which the
AER information disclosure decision relates (whichever is the later).
(5) An application
under this section stays the operation of the decision until the earlier
of—
(a) 20
business days; or
(b) the
making of a determination by the Tribunal in respect of the application.
71T—Exclusion of public in certain cases
On the application of a party to a review under this Subdivision, the Tribunal
may conduct the review in the absence of the public.
71U—Determination in the review
(1) Subject to this
Division, on receipt of an application under section 71S, the Tribunal
must make a determination in respect of the application.
(2) A determination
under this section must only—
(a)
affirm the AER information disclosure decision; or
(b)
forbid disclosure by the AER of the information or document to which the
AER information disclosure decision the subject of the review relates; or
(c)
restrict, as specified in the determination, the intended disclosure by the
AER of the information or document to which the AER information
disclosure decision the subject of the review relates.
(3) For the purposes
of making a determination of the kind in subsection (2)(a), the Tribunal
may perform all the functions and exercise all the powers of the AER under
this Law or the Rules.
(4) A determination by
the Tribunal affirming, forbidding or restricting the
AER information disclosure decision is, for the purposes of this Law (other
than this Part), to be taken to be a decision of the AER.
71V—Tribunal must be taken to have affirmed decision if decision not
made within time
(1) This section
applies if the Tribunal does not make a determination under section 71U
within 20 business days after an application is lodged under section 71S.
(2) The Tribunal must
be taken to have made a determination under section 71U affirming the
AER information disclosure decision to which the application relates.
71W—Assistance from the AER in certain cases
The member of the Tribunal presiding in the review may require the AER to give
information and other assistance and to make reports, as specified, by the
member for the purposes of the review.
Subdivision 4—General
71X—Costs in a review
(1) Subject to this
section, the Tribunal may order that a party to a review under this Division
pay all or a specified part of the costs of another party to the review.
(2) The Tribunal must
not make an order requiring the AER or a small/medium
user or consumer intervener to pay the costs of another party to the review
unless the Tribunal considers that the AER or intervener has conducted their
case in the review without due regard to—
(a) the
costs that would have to be incurred by another party to the review as a
result of that conduct; or
(b) the
time required by—
(i)
the Tribunal to hear the review as a result of that
conduct; or
(ii)
another party to prepare their case as a result of that
conduct; or
(c) the
submissions or arguments made to the Tribunal by another party.
(3) The Tribunal may
make an order requiring a user or consumer intervener (that is not a
small/medium user or consumer intervener) that has intervened in the review to
pay all or part of the costs of another party to the review if the Tribunal
considers that the intervener has conducted their case in the review without
due regard to—
(a) the
costs that would have to be incurred by another party to the review as a
result of that conduct; or
(b) the
time required by—
(i)
the Tribunal to hear the review as a result of that
conduct; or
(ii)
another party to prepare their case as a result of that
conduct; or
(c) the
submissions or arguments made to the Tribunal by another party.
71Y—Amount of costs
If the Tribunal makes an order for costs in a review under this Division, the
Tribunal may in that order fix the amount of costs payable by a party to the
review on—
(a) a
party and party basis; or
(b) a
solicitor and client basis; or
(c) an
indemnity basis; or
(d) any
other basis as the Tribunal may decide.
71Z—Review of Division
(1) The MCE must cause
a review of this Division to be undertaken within 7 years after the
commencement of this Part by a person nominated by the MCE.
(2) The MCE must
specify the matters to be addressed in the review.
(3) The person
undertaking the review must, during the review, invite public comment and
submissions about the matters to be addressed in the review.
(4) The person
undertaking the review must report, in writing, to the MCE on the outcome of
the review by the date specified by the MCE.
Division 3B—Enforcement of access determinations
71ZA—Enforcement of access determinations
(1) If the Court is
satisfied, on the application of a party to an access determination, that
another party to the determination has engaged, is engaging, or is proposing
to engage in conduct that constitutes a contravention of the determination,
the Court may make all or any of the following orders:
(a) an
order granting an injunction on such terms as the Court thinks
appropriate—
(i)
restraining the other party from engaging in the conduct;
or
(ii)
if the conduct involves refusing or failing to do
something—requiring the other party to do that thing;
(b) an
order directing the other party to compensate the applicant for loss or damage
suffered as a result of the contravention;
(c) any
other order that the Court thinks appropriate.
(2) The revocation of
an access determination does not affect any remedy under subsection (1)
in respect of a contravention of the determination that occurred when the
determination was in force.
(3) If the Court has
power under subsection (1) to grant an injunction restraining a person
from engaging in particular conduct, or requiring a person to do anything, the
Court may make any other orders (including granting an injunction) that it
thinks appropriate against any other person who was involved in the
contravention concerned.
(4) A reference in
this section to a person involved in the contravention is a reference to a
person who has—
(a)
aided, abetted, counselled or procured the contravention; or
(b)
induced the contravention, whether through threats or promises or otherwise;
or
(c) been
in any way (directly or indirectly) knowingly concerned in or a party to the
contravention; or
(d)
conspired with others to effect the contravention.
71ZB—Consent injunctions
On an application for an injunction under section 71ZA, the Court may
grant an injunction by consent of all of the parties to the proceedings,
whether or not the Court is satisfied that the section applies.
71ZC—Interim injunctions
The Court may grant an interim injunction pending determination of an
application under section 71ZA.
71ZD—Factors relevant to granting a restraining injunction
The power of the Court to grant an injunction under section 71ZA
restraining a person from engaging in conduct may be exercised whether or
not—
(a) it
appears to the Court that the person intends to engage again, or to continue
to engage, in conduct of that kind; or
(b) the
person has previously engaged in conduct of that kind; or
(c)
there is an imminent danger of substantial damage to any person if the first
mentioned person engages in conduct of that kind.
71ZE—Factors relevant to granting a mandatory injunction
The power of the Court to grant an injunction under section 71ZA
requiring a person to do a thing may be exercised whether or not—
(a) it
appears to the Court that the person intends to refuse or fail again, or to
continue to refuse or fail, to do that thing; or
(b) the
person has previously refused or failed to do that thing; or
(c)
there is an imminent danger of substantial damage to any person if the first
mentioned person refuses or fails to do that thing.
71ZF—Discharge or variation of injunction or other order
The Court may discharge or vary an injunction or order granted under this
Division.