South Australian Numbered Acts South Australian Numbered Acts75—Amendment of section of the NEL—New section 122 and new parts
10 and 11 inserted
NEL—after section 121 insert:
122—Immunity from personal liability of Reliability Panel
(1) No personal
liability attaches to a person appointed to the Reliability Panel for an act
or omission in good faith in the performance or exercise, or purported
performance or exercise, of a function or power of the Reliability Panel under
this Law, the Regulations or the Rules.
(2) A liability that
would, but for subsection (1), lie against a person appointed to the
Reliability Panel lies instead against the AEMC.
Part 10—Access Disputes
Division 1—Interpretation and application
123—Definitions
In this Part—
"dispute hearing" means a hearing conducted by the AER for the purpose of
making an access determination;
"party", in relation to an access dispute, has the meaning given by
section 127.
124—Part does not limit how disputes about access may be raised or dealt
with
This Part is not to be taken to limit how a dispute about access to an
electricity network service may be raised or dealt with.
Division 2—Notification of access dispute
125—Notification of access dispute
(1) Subject to this
section, if a prospective network service user or network service user is
unable to agree with a network service provider about 1 or more aspects of
access to an electricity network service provided by means of, or in
connection with—
(a) a
distribution system; or
(b) a
transmission system,
owned, controlled or operated by that network service provider, the
prospective network service user, network service user or network service
provider may notify the AER, in writing, that an access dispute exists.
Note—
Access dispute is defined in section 2A.
(2) A notification
must be accompanied by the fee (if any) prescribed by the Regulations.
(3) On receiving a
notification under subsection (1), the AER must notify, in writing, of
the access dispute—
(a) the
network service provider, if a prospective network service user or network
service user (as the case requires) notified the AER of the access dispute
under subsection (1);
(b) the
prospective network service user or network service user (as the case
requires), if the network service provider notified the AER of the access
dispute under subsection (1).
126—Withdrawal of notification
(1) The person who
notified the AER of an access dispute under section 125(1) may withdraw
that notification at any time before the AER makes an access determination in
respect of that access dispute.
(2) The notification
must be withdrawn by notice in writing.
(3) If the
notification is withdrawn, it is taken for the purposes of this Part never to
have been given.
127—Parties to an access dispute
The parties to an access dispute are—
(a) the
person notifying the AER of an access dispute under section 125(1); and
(b) a
person notified by the AER under section 125(3); and
(c) if
the AER is of the opinion that the resolution of the access dispute may
involve requiring another person to do something—that other person; and
(d) any
other person who applies in writing to be made a party and is accepted by the
AER as having a sufficient interest.
Division 3—Access determinations
128—Determination of access dispute
(1) Unless the AER
terminates an access dispute under section 131, the AER must, subject to
this Part and the Rules, make a determination on access by (as the case
requires) the prospective network service user or network service user.
Note—
A delegate of the AER may make the access determination. See section 17 of
this Law and section 44AAH of the Trade Practices Act 1974 of the
Commonwealth.
(2) In making an
access determination the AER must comply with this Part and the Rules.
(3) An access
determination must—
(a) be
in writing; and
(b)
include a statement of reasons for making the determination; and
(c) be
given to the parties without delay.
(4) An access
determination has effect on and from the date specified in the determination.
129—AER may require parties to mediate, conciliate or engage in an
alternative dispute resolution process
(1) The AER may
require the parties, in accordance with the Rules, to mediate, conciliate or
engage in another alternative dispute resolution process for the purpose of
resolving the access dispute.
(2) A party must
comply with a requirement under subsection (1).
130—Access determination must give effect to network revenue or pricing
determination
The AER must, in making an access determination, give effect to a network
revenue or pricing determination—
(a)
applying to the electricity network services provided, or to be provided, that
are the subject of the access dispute; and
(b) in
effect at the time the determination is made,
(even though that determination may not have been in force when notification
of the access dispute was given).
131—AER may terminate access dispute in certain cases
(1) The AER may at any
time terminate an access dispute (without making an access determination) if
the AER considers that—
(a) the
notification of the access dispute was vexatious; or
(b) the
subject matter of the dispute is trivial, misconceived or lacking in
substance; or
(c) the
party who notified the access dispute had, but did not avail itself of, an
opportunity to engage in negotiations in good faith with the other party
before that notification; or
(d) a
specified dispute termination circumstance has occurred.
(2) Subject to
section 133, the AER may also terminate an access dispute (without making
an access determination) if the AER considers that the aspect of access about
which there is a dispute is expressly or impliedly dealt with under an
agreement between, as the case requires—
(a) the
prospective network service user and network service provider;
(b) the
network service user and network service provider.
(3) In this
section—
"specified dispute termination circumstance" means a circumstance specified by
the Rules as being a circumstance, the occurrence of which, entitles the AER
to terminate an access dispute (without making an access determination).
132—AER must terminate access dispute if there is genuine competition
Despite anything to the contrary in this Part, the AER must terminate an
access dispute (without making an access determination) if the AER considers
that the electricity network service the subject of the dispute could be
provided on a genuinely competitive basis by a person other than the network
service provider or an associate of the provider.
133—Restrictions on access determinations
(1) The AER must not
make an access determination that—
(a)
would have the effect of preventing a network service user obtaining a
sufficient amount of an electricity network service to be able to meet the
network service user's reasonably anticipated requirements, measured at the
time the access dispute was notified; or
(b)
subject to subsection (2), is inconsistent with a connection agreement
between the parties to the access dispute.
(2) The AER may make
an access determination that is inconsistent with a connection agreement
between the parties to the access dispute if the AER is of the opinion the
connection agreement affects the quality and security of electricity network
service being provided to another person.
(3) In this
section—
"connection agreement" means an agreement between a network service provider
and—
(a) an
owner, controller or operator of a generating system about the connection of
that system to a transmission system or distribution system owned, controlled
or operated by the network service provider; or
(b) a
person who purchases electricity supplied through a transmission system or
distribution system owned, controlled or operated by the network
service provider about the connection of that person's loads to that
transmission system or distribution system; or
(c)
another network service provider about the connection of transmission systems
or distribution systems (as the case requires) owned, controlled or operated
by the providers.
134—Access determination need not require the provision of an
electricity network service
An access determination may, but need not, require a network service provider
to provide an electricity network service to a prospective network service
user.
Division 4—Variation of access determinations
135—Variation of access determinations
(1) The AER may vary
an access determination on the application of any party to the determination.
However, it cannot vary the final determination if any other party objects.
Note—
If the parties cannot agree on a variation, a new access dispute can be
notified under section 125.
(2) Section 133
applies to a variation under this section as if—
(a) an
access dispute arising out of the access determination had been notified when
the application was made to the AER for the variation of the determination;
and
(b) the
variation were the making of an access determination in the terms of the
varied determination.
Division 5—Compliance with access determinations
136—Compliance with access determination
A party to an access dispute in respect of which an access determination is
made must comply with the access determination.
Division 6—Access dispute hearing procedure
137—Hearing to be in private
(1) Subject to
subsection (2), a dispute hearing is to be in private.
(2) If the parties
agree, a dispute hearing or part of a dispute hearing may be conducted in
public.
(3) The AER may give
written directions as to the persons who may be present at a dispute hearing
that is conducted in private.
(4) In giving
directions under subsection (3), the AER must have regard to the wishes
of the parties and the need for commercial confidentiality.
138—Right to representation
In a dispute hearing a party may appear in person or be represented by another
person.
139—Procedure of AER
(1) In a
dispute hearing the AER—
(a) is
not bound by technicalities, legal forms or rules of evidence; and
(b) must
act as speedily as a proper consideration of the access dispute allows, having
regard to the need carefully and quickly to inquire into and investigate the
access dispute and all matters affecting the merits, and fair settlement, of
the access dispute; and
(c) may
inform itself about any matter relevant to the access dispute in any way it
thinks appropriate.
(2) The AER may
determine the periods that are reasonably necessary for the fair and adequate
presentation of the respective cases of the parties in the dispute hearing,
and may require that the cases be presented within those periods.
(3) The AER may
require evidence or argument to be presented in writing, and may decide the
matters on which the AER will hear oral evidence or argument.
(4) The AER may
determine that a dispute hearing is to be conducted by—
(a)
telephone; or
(b)
closed circuit television; or
(c) any
other means of communication.
(5) The Rules may make
further provision about the procedure for the conduct of dispute hearings.
140—Particular powers of AER in a hearing
(1) The AER may do any
of the following things for the purpose of determining an access dispute:
(a) give
a direction in the course of, or for the purpose of, a dispute hearing;
(b) hear
and determine the access dispute in the absence of a party who has been given
notice of the dispute hearing;
(c) sit
at any place;
(d)
adjourn to any time and place;
(e)
refer any matter to an independent expert and accept the expert's report as
evidence.
(2) The AER may make
an interim determination.
141—Disclosure of information
(1) The AER may give
an oral or written order to a person not to divulge or communicate to anyone
else specified information that was given to the person in the course of an
access dispute unless the person has the AER's permission.
(2) A person must not,
without reasonable excuse, refuse or fail to comply with an order under
subsection (1).
Maximum penalty:
(a) in
the case of a natural person—$2 000;
(b) in
the case of a body corporate—$10 000.
142—Power to take evidence on oath or affirmation
(1) The AER may take
evidence on oath or affirmation and for that purpose the AER may administer an
oath or affirmation.
(2) The AER may summon
a person to appear before the AER to—
(a) give
evidence; or
(b)
produce such documents (if any) as are referred to in the summons; or
(c) give
evidence and produce such documents (if any) as are referred to in the
summons.
(3) The powers in this
section may be exercised only for the purposes of hearing and determining an
access dispute.
143—Failing to attend as a witness
A person who is served, as prescribed by the Regulations, with a summons to
appear as a witness before the AER must not, without reasonable excuse—
(a) fail
to attend as required by the summons; or
(b) fail
to appear and report himself or herself from day to day unless excused, or
released from further attendance, by the AER.
Maximum penalty: $2 000.
144—Failing to answer questions etc
(1) A person appearing
as a witness before the AER must not, without reasonable excuse—
(a)
refuse or fail to be sworn or to make an affirmation; or
(b)
refuse or fail to answer a question that the person is required to answer by
the AER; or
(c)
refuse or fail to produce a document that he or she is required to produce by
a summons under this Part served on him or her as prescribed by the
Regulations.
Maximum penalty: $2 000.
(2) It is a reasonable
excuse for the purposes of subsection (1) for a natural person to refuse
or fail to answer a question or produce a document on the ground that the
answer or the production of the document might—
(a) tend
to incriminate the person; or
(b)
expose the person to a criminal penalty.
(3)
Subsection (2) does not limit what is a reasonable excuse for the
purposes of subsection (1).
145—Intimidation etc
A person must not—
(a)
threaten, intimidate or coerce another person; or
(b)
cause or procure damage, loss or disadvantage to another person,
because that other person—
(c)
proposes to produce, or has produced, documents to the AER; or
(d)
proposes to appear, or has appeared, as a witness before the AER.
Maximum penalty: $2 000.
146—Party may request AER to treat material as confidential
(1) A party in a
dispute hearing may—
(a)
inform the AER that, in the party's opinion, a specified part of a document
contains confidential information; and
(b)
request the AER not to give a copy of that part to another party.
(2) On receiving a
request, the AER must—
(a)
inform the other party or parties that the request has been made and of the
general nature of the matters to which the relevant part of the document
relates; and
(b) ask
the other party or parties whether there is any objection to the AER complying
with the request.
(3) If there is an
objection to the AER complying with the request, the party objecting may
inform the AER of the objection and of the reasons for it.
(4) After
considering—
(a) a
request; and
(b) any
objection; and
(c) any
further submissions that any party has made in relation to the request,
the AER may decide—
(d) not
to give the other party or parties a copy of so much of the document as
contains confidential information that the AER thinks should not be given; or
(e) to
give the other party or another specified party a copy of the whole, or part,
of the part of the document that contains confidential information subject to
a condition that the party give an undertaking not to disclose the information
to another person except to the extent specified by the AER and subject to
such other conditions as the AER determines.
147—Costs
(1) Each party is to
bear its own costs in a dispute hearing except to the extent that an order
under this section specifies otherwise.
(2) At any time, the
AER may order that a party pay all or a specified part of the costs of another
party in a dispute hearing.
(3) The AER may make
an order under subsection (2) only if satisfied that it is fair to do so,
having regard to—
(a)
whether a party has conducted itself in the dispute hearing in a way that
unnecessarily disadvantaged another party by conduct such as—
(i)
failing to comply with an order or direction of the AER
without reasonable excuse;
(ii)
failing to comply with this Law, the Regulations or the
Rules;
(iii)
asking for an adjournment as a result of
subparagraph (i) or (ii);
(iv)
causing an adjournment;
(v)
attempting to deceive another party or the AER;
(vi)
vexatiously conducting an access dispute;
(b)
whether a party has been responsible for prolonging unreasonably the time
taken to complete the dispute hearing;
(c) the
relative strengths of the claims made by each of the parties, including
whether a party has made a claim that has no tenable basis in fact or law;
(d) the
nature and complexity of the access dispute;
(e) any
other matter the AER considers relevant.
(4) A party to whom an
order made under subsection (2) is directed must comply with the order.
(5) If the AER
considers that the representative of a party, rather than the party, is
responsible for conduct described in subsection (3)(a) or (b), the AER
may order that the representative in his or her own capacity compensate
another party for any costs incurred unnecessarily.
(6) Before making an
order under subsection (5), the AER must give the representative a
reasonable opportunity to be heard.
(7) A representative
of a party to whom an order made under subsection (5) is directed must
comply with the order.
(8) If the AER makes
an order for costs before the end of an access dispute, the AER may require
that the order be complied with before it continues with the proceeding.
(9) If the AER makes
an order for costs, the AER may fix the amount of costs itself.
(10) This section
applies to costs incurred by the parties in a dispute hearing even if the
notification of the access dispute to which the dispute hearing relates is
withdrawn.
148—Outstanding costs are a debt due to party awarded the costs
Costs that are payable under an order under section 147(4) or (7)—
(a) are
a debt due to the party to whom the AER has ordered that they be paid; and
(b) may
be recovered by that party in a court of competent jurisdiction.
Division 7—Joint access dispute hearings
149—Definition
In this Division—
"nominated dispute" has the meaning given by section 150(2).
150—Joint dispute hearing
(1) This section
applies if—
(a) the
AER is conducting 2 or more dispute hearings at a particular time; and
(b) 1 or
more matters are common to the access disputes in relation to which the
dispute hearings are being conducted.
(2) The AER may, by
notice in writing, decide that it will hold a joint dispute hearing in respect
of such of those access disputes (the "nominated disputes ) as are specified
in the notice.
(3) The AER may do so
only if it considers this would be likely to result in the nominated disputes
being resolved in a more efficient and timely manner.
151—Consulting the parties
(1) Before making a
decision under section 150(2), the AER must give each party to each
nominated dispute a notice in writing—
(a)
specifying what the AER is proposing to do; and
(b)
inviting the party to make a written submission on the proposal to the AER
within 10 business days after the notice is given.
(2) The AER must have
regard to any submission so made in deciding whether to do so. The AER may
have regard to any other matter it considers relevant.
152—Constitution and procedure of AER for joint dispute hearings
Division 6 applies to the joint dispute hearing in a corresponding way to the
way in which it applies to a particular dispute hearing.
153—Record of proceedings etc
(1) The AER as
constituted for the purposes of the joint dispute hearing may have regard to
any record of the proceedings of the dispute of any nominated dispute.
(2) The AER as
constituted for the purposes of the dispute hearing of each nominated dispute
may, for the purposes of making an access determination in relation to the
access dispute to which that hearing relates—
(a) have
regard to any record of the proceedings of the joint dispute hearing; and
(b)
adopt any findings of fact made by the AER as constituted for the purposes of
the joint dispute hearing.
Division 8—Miscellaneous matters
154—Correction of access determinations for clerical mistakes etc
If an access determination contains—
(a) a
clerical mistake; or
(b) an
error arising from an accidental slip or omission; or
(c) a
material miscalculation of figures or a material mistake in the description of
any person, thing or matter referred to in the determination; or
(d) a
defect in form,
the AER may correct the access determination.
155—Subsequent network service provider bound by access determinations
(1) An access
determination applies to every subsequent network service provider as if that
subsequent network service provider were a party to the access dispute in
respect of which the access determination was made.
(2) In this
section—
"subsequent network service provider" means a network service provider (other
than the network service provider to whom the access determination applies)
who provides electricity network services by means of, or in connection with,
the distribution system or transmission system used to provide the electricity
network services—
(a) the
subject of the access dispute; and
(b) in
respect of which the access determination was made.
156—Regulations about the charges to be paid by parties to access
dispute for AER's costs in dispute hearing
The Regulations may provide for the AER to—
(a)
charge the parties to an access dispute for its costs in the access dispute;
and
(b)
apportion those costs between the parties.
Part 11—General
157—Preventing or hindering access
(1) A person who
is—
(a) a
regulated network service provider; or
(b) a
person who—
(i)
is a party to an agreement with a
regulated network service provider relating to a regulated network service; or
(ii)
as a result of an access determination is entitled to a
regulated network service; or
(c) an
associate of a regulated network service provider or a person referred to in
paragraph (b),
must not engage in conduct for the purpose of preventing or hindering the
access of another person to a regulated network service.
(2) For the purposes
of subsection (1), a person is deemed to engage in conduct for a
particular purpose if—
(a) the
conduct is or was engaged in for that purpose or for a purpose that includes,
or included, that purpose; and
(b) that
purpose is or was a substantial purpose.
(3) A person may be
taken to have engaged in conduct for the purpose referred to in
subsection (1) even though, after all the evidence has been considered,
the existence of that purpose is ascertainable only by inference from the
conduct of the person or of any other person or from other relevant
circumstances.
(4)
Subsection (3) does not limit the manner in which the purpose of a person
may be established for the purpose of subsection (1).
(5) In this
section—
(a) a
reference to engaging in conduct is a reference to doing or refusing to do any
act, including refusing to supply a regulated network service or, without
reasonable grounds, limiting or disrupting a regulated network service, or
making, or giving effect to, a provision of, a contract or arrangement,
arriving at, or giving effect to, a provision of, an understanding or
requiring the giving of, or giving, a covenant;
(b) a
reference to refusing to do an act includes a reference to—
(i)
refraining (otherwise than inadvertently) from doing that
act; or
(ii)
making it known that that act will not be done.
(6) In this
section—
"regulated network service" means a direct control network service or a
negotiated network service.
(7)
Subsection (1) does not apply to conduct engaged in in accordance with an
agreement, if the agreement was in force on 30 March 1995.
An example of conduct which may be prohibited if the requisite purpose is
established is refusing to supply, or limiting or disrupting the supply of, a
regulated network service to a network service user or prospective network
service user for technical or safety reasons without reasonable grounds.
158—Failure to make a decision under this Law or the Rules within time
does not invalidate the decision
(1) A decision
(however described) made under this Law or the Rules by the AER, AEMC or
NEMMCO after the expiry of the period of time specified by this Law or the
Rules for the making of that decision is not to be taken to be an invalid
decision only because the decision is not made within the specified period of
time.
(2) A decision to
which subsection (1) applies takes effect on and from—
(a) the
day it is made; or
(b) if
it specifies a date for operation or effect that is after the day it is made,
that specified date.