South Australian Numbered Acts South Australian Numbered ActsSchedule 1—Transitional provisions
Part 1—Transitional
provisions—Electricity market
Division 1—Preliminary
In this Part, unless the contrary intention appears—
AEMO means the Australian Energy Market Operator Limited
(ACN 072 010 327);
asset means tangible or intangible real or personal property of any
description and includes—
(a) a
present, future or contingent legal or equitable interest in real or personal
property;
(b) a
chose in action;
(c) a
right, power, privilege or immunity;
(d)
goodwill;
(e) a
security;
(f)
money;
(g)
documents;
(h)
information (including data and records) in any form;
business day means any day except a Saturday, Sunday or public holiday;
designated entity means—
(a)
AEMO; or
(b) the
relevant Minister;
ESIPC means the Electricity Supply Industry Planning Council;
liability means a monetary or non-monetary obligation and includes a future or
contingent obligation;
principal Act means the Electricity Act 1996 ;
property includes intellectual property;
relevant day means a day appointed by the relevant Minister by notice in the
Gazette as the relevant day for the purposes of the provision in which the
term is used;
relevant Minister means the Minister responsible for the administration of the
principal Act;
Technical Regulator means the Technical Regulator under the principal Act.
Division 2—Reporting requirements and financial statements—ESIPC
2—Reporting and financial requirements—ESIPC
(1) AEMO must comply
with any requirement that would have applied to or in relation to ESIPC with
respect to ESIPC's operations before the relevant day had the repeal of Part 2
Division 2 of the principal Act not been effected by this Act—
(a) to
ensure that proper accounts are maintained and financial statements prepared
and finalised with respect to any financial year; and
(b) to
ensure that financial statements are delivered to the Auditor-General for
auditing (together with any relevant certificates, information or material);
and
(c) to
prepare and deliver any annual or other reports.
(2) AEMO, or the Chief
Executive of AEMO, may take such steps as are reasonably necessary in order to
comply with subclause (1) (including by assuming control of any accounts,
statements or other documents or materials or by providing any certificate,
information or statement).
Division 3—Assignment or provision of information
3—Assignment of information held by ESIPC
(1) Despite any other
Act or law, the documents and other information (including data and records)
in any form held by ESIPC immediately before the relevant day ( designated
information ) will be assigned by force of this clause to—
(a) in
the case of designated information directly relevant to the functions of
AEMO—AEMO;
(b) in
the case of designated information directly relevant to the functions of the
relevant Minister—the relevant Minister;
(c) in
the case of designated information directly relevant to the functions of the
Technical Regulator appointed under the principal Act—the Technical
Regulator;
(d) in
the case of any other designated information—the relevant Minister or,
if so determined by the relevant Minister, another person or entity specified
by the relevant Minister.
(2) Any person or
entity to which designated information is assigned under this clause will hold
that designated information on the same basis as it was being held by ESIPC
immediately before the relevant day.
(3) It follows
that—
(a) if
the designated information was confidential in the hands of ESIPC immediately
before the relevant day, it remains confidential in the hands of the person or
entity to which it is assigned; and
(b) the
person or entity must deal with any designated information in the same way as
if it has been acquired or produced by the person or entity rather than ESIPC.
(4) Despite a
preceding subclause, AEMO, the relevant Minister and the Technical Regulator
may provide any information obtained under this clause to each other and, in
doing so, will not be acting in breach of any confidence and will not be
subject to any other form of limitation that may have applied to ESIPC.
4—Provision of information under a licence
A reference in a licence under the principal Act relating to the provision of
information by an electricity entity to ESIPC will, on the relevant day, be
taken to be a reference to the provision of information to AEMO.
Division 4—Transfer of assets and liabilities—ESIPC
(1) The relevant
Minister may, by instrument in writing (an allocation order ), transfer—
(a)
specified assets or liabilities of ESIPC to AEMO or to the relevant Minister;
(b)
specified classes of assets or liabilities of ESIPC to AEMO or to the relevant
Minister;
(c) all
assets and liabilities of ESIPC, other than specified classes of assets or
liabilities, to AEMO;
(d) all
assets and liabilities of ESIPC, or all remaining assets and liabilities of
ESIPC, to AEMO.
(2) An allocation
order takes effect from a date (which may be earlier than the date of the
order) specified in the order.
(3) If it appears to
the relevant Minister that assets or liabilities should not have been
transferred to AEMO under this clause, the Minister may, by instrument in
writing (a claw back order ), transfer assets or liabilities transferred under
this clause from AEMO to the relevant Minister or to another person or entity
specified by the relevant Minister.
(4) A claw back
order—
(a) must
be made within 12 months after the date of the allocation order; and
(b)
takes effect from a date (which may be earlier than the date of the order)
specified in the order.
(5) The relevant
Minister must, at least 20 business days before making a claw back order, give
AEMO written notice of the relevant Minister's intention to make the order.
(6) The relevant
Minister may make an allocation order, or a claw back order, in relation to
assets or liabilities situated outside South Australia.
(7) An allocation
order or a claw back order may be made on conditions specified in the order.
(1) On the relevant
date, assets and liabilities vest in the transferee named in a transfer order
in accordance with the order.
(2) If a transfer
order provides for the transfer of the transferor's interest in an
agreement—
(a) the
transferee becomes on the relevant date a party to the agreement in place of
the transferor; and
(b) on
and after the relevant date, the agreement has effect as if the transferee had
always been a party to the agreement.
(3) In this
clause—
relevant date means, in relation to an allocation order or a claw back order,
the date specified in the order for the order to take effect;
transfer order means an allocation order or a claw back order under
clause 5;
transferor means the person from whom assets or liabilities are transferred by
a transfer order.
7—Continued effect of certain acts by ESIPC
Anything done, or omitted to be done, by ESIPC in relation to assets or
liabilities transferred to a designated entity under this Division is, if it
continues to have effect as at the date of the transfer, taken to be the
designated entity's act or omission.
Proceedings commenced before the date of transfer by or against ESIPC in
relation to an asset or liability transferred to a designated entity under
this Division may be continued and completed by or against the designated
entity.
A written notice signed by the relevant Minister stating that a specific
transfer of assets or liabilities has been made under this Division is
conclusive evidence of the transfer.
(1) A reference in an
instrument or other document to ESIPC in connection with an asset or liability
transferred to a designated entity under this Division is, from the date of
transfer, taken to be a reference to the designated entity.
(2) Subclause (1)
does not apply to any instrument or document, or instrument or document of a
specified class, excluded from the operation of that subclause by the relevant
Minister by notice in the Gazette.
11—Parties to transfer must do anything necessary to perfect transfer
(1) AEMO must accept
assets and liabilities transferred to it under this Division.
(2) The relevant
Minister may direct AEMO's directors to accept, on AEMO's behalf, a transfer
of assets or liabilities under this Division.
(3) AEMO must take
necessary action to perfect a transfer of assets or liabilities under this
Division.
(4) The relevant
Minister may direct the directors of AEMO to ensure that AEMO complies with an
obligation under subclause (3).
(1) As from the
relevant day, AEMO succeeds to ESIPC's powers, rights, obligations and
liabilities under any agreement or other instrument related to an electricity
market of which AEMO assumes the operation.
(2) A reference in an
agreement or other instrument within the ambit of subclause (1) continues
to have effect in accordance with its terms as if any reference to ESIPC were
a reference to AEMO (and AEMO will be taken to be a party to the agreement or
other instrument, and to always have been such a party).
Division 5—Instruments made by ESIPC
(1) Unless the context
otherwise requires, a procedure, guideline, directive, approval, determination
or other instrument of a legislative or administrative character—
(a) made
by ESIPC under the principal Act; and
(b) in
force immediately before the relevant day,
continues in force, subject to amendment or revocation by AEMO, as if made by
AEMO.
(2) Subclause (1)
does not apply to any instrument, or instrument of a specified class, excluded
from the operation of that subclause by the relevant Minister by notice in the
Gazette.
Part 2—Transitional provisions—Gas market
Division 1—Preliminary
In this Part, unless the contrary intention appears—
AEMO means the Australian Energy Market Operator Limited
(ACN 072 010 327);
asset means tangible or intangible real or personal property of any
description and includes—
(a) a
present, future or contingent legal or equitable interest in real or personal
property;
(b) a
chose in action;
(c) a
right, power, privilege or immunity;
(d)
goodwill;
(e) a
security;
(f)
money;
(g)
documents;
(h)
information (including data and records) in any form;
liability means a monetary or non-monetary obligation and includes a future or
contingent obligation;
principal Act means the Gas Act 1997 ;
property includes intellectual property;
relevant day means a day appointed by the relevant Minister by notice in the
Gazette as the relevant day for the purposes of the provision in which the
term is used;
relevant Minister means the Minister responsible for the administration of the
principal Act;
REMCo means the Retail Energy Market Company Limited
(ACN 103 318 556).
Division 2—Provision of information and assistance
15—Provision of information and assistance to AEMO
(1) Despite any other
Act or law, REMCo is authorised, on its own initiative or at the request of
AEMO—
(a) to
provide AEMO with such documents and other information (including data and
records and including information given in confidence) in the possession or
control of REMCo that is reasonably required by AEMO in connection with the
performance or exercise of its functions or powers (whether under this Act or
the principal Act or under any other Act or law); and
(b) to
provide AEMO with such other assistance as is reasonably required by AEMO to
perform or exercise a function or power (whether under the principal Act or
under any other Act or law).
(2) Despite any other
Act or law, REMCo or the relevant Minister may authorise AEMO to disclose
information provided under subclause (1) even if the information was
given to REMCo in confidence.
16—Provision of information under a licence
A reference in a licence under the principal Act relating to the provision of
information by a gas entity to REMCo will, on the relevant day, be taken to be
a reference to the provision of information to AEMO.
Division 3—Retail market administrator licence
17—Retail market administrator licence
Any licence in force under section 26B of the principal Act immediately before
the relevant day is cancelled by force of this clause on the relevant day.
Division 4—Retail market rules
The REMCo Retail Market Rules , as published by REMCo, insofar as those rules
apply in relation to South Australia, will no longer apply from the relevant
day.
Division 5—Imposition of additional costs on service providers
19—Imposition of additional costs on service providers
(1) This clause
applies if—
(a) AEMO
changes the National Gas Procedures (South Australia); and
(b) the
effect of the change is to alter the retail market obligations of a service
provider in the State; and
(c) the
service provider is able to satisfy AEMO—
(i)
that the alteration imposes additional obligations on the
service provider that result, or will result, in new costs being incurred by
the service provider that are, or will be, fair and reasonable material costs;
and
(ii)
that the service provider is unable to recover those
costs under existing pricing and access arrangements applying in the State
with respect to services provided by the service provider (after taking into
account reasonable accounting and regulatory cost recovery principles).
(2) In a case where
this clause applies, the change referred to in subclause (1)(a) will not
apply to or in relation to the relevant service provider unless or
until—
(a) the
service provider is able to recover the costs referred to in
subclause (1)(c); or
(b) AEMO
implements steps that result in the service provider not having to incur the
relevant costs.
(3) This clause will
expire on the relevant day.
(4) In this
clause—
National Gas Procedures (South Australia) means the National Gas Procedures
under the National Gas Law that apply in, or in relation to, South Australia,
as in force from time to time;
service provider means a service provider under the National Gas (South
Australia) Law .
Division 6—Transfer of assets and liabilities—REMCo
20—Transfer of assets and liabilities—REMCo
(1) The relevant
Minister may, by instrument in writing (an allocation order ), transfer any of
REMCo's assets or liabilities to AEMO (insofar as any such assets or
liabilities relate to REMCO's activities or former activities in, or in
relation to, South Australia).
(2) The Minister may,
in connection with—
(a) the
operation of an allocation order (whether or not as part of the allocation
order); or
(b) the
operation of any other instrument (whether or not executed under statute),
by instrument in writing—
(c)
divide any right, interest or liability of REMCo into distinct parts; or
(d)
direct that a reference in any instrument or other document to REMCo will be
taken to be a reference to some other entity; or
(e) take
other steps to facilitate the transfer of any asset or liability of REMCo.
(3) An instrument
under subclause (2) operates by force of this clause and despite the
provisions of any other law or instrument.
(4) An instrument
under subclause (1) or (2) takes effect from a date (which may be earlier
than the date of the instrument) specified in the instrument.
(5) If it appears to
the relevant Minister that assets or liabilities should not have been
transferred to AEMO under this clause, the Minister may, by instrument in
writing (a claw back order ), transfer assets or liabilities transferred under
this clause from AEMO to REMCo or to another person or entity specified by the
relevant Minister.
(6) A claw back
order—
(a) must
be made within 12 months after the date of the allocation order; and
(b)
takes effect from a date (which may be earlier than the date of the order)
specified in the order.
(7) The relevant
Minister must, at least 20 business days before making a claw back order, give
AEMO written notice of the relevant Minister's intention to make the order.
(8) The relevant
Minister may make an allocation order, or a claw back order, in relation to
assets or liabilities situated outside South Australia.
(9) An allocation
order or a claw back order may be made on conditions specified in the order.
(10) The relevant
Minister may only act under this clause at the request or with the concurrence
of REMCo.
(1) On the relevant
date, assets and liabilities vest in the transferee named in a transfer order
in accordance with the order.
(2) If a transfer
order provides for the transfer of the transferor's interest in an
agreement—
(a) the
transferee becomes on the relevant date a party to the agreement in place of
the transferor; and
(b) on
and after the relevant date, the agreement has effect as if the transferee had
always been a party to the agreement.
(3) In this
clause—
relevant date means, in relation to an allocation order or a claw back order,
the date specified in the order for the order to take effect;
transfer order means an allocation order or a claw back order under
clause 20;
transferor means the person from whom assets or liabilities are transferred by
a transfer order.
22—Continued effect of certain acts by REMCo
Anything done, or omitted to be done, by REMCo in relation to assets or
liabilities transferred to AEMO under this Division is, if it continues to
have effect as at the date of the transfer, taken to be AEMO's act or
omission.
23—Continuation of proceedings
Proceedings commenced before the date of transfer by or against REMCo in
relation to an asset or liability transferred to AEMO under this Division may
be continued and completed by or against AEMO.
A written notice signed by the relevant Minister stating that a specific
transfer of assets or liabilities has been made under this Division is
conclusive evidence of the transfer.
(1) A reference in an
instrument or other document to REMCo in connection with an asset or liability
transferred to AEMO under this Division is, from the date of transfer, taken
to be a reference to AEMO.
(2) Subclause (1)
does not apply to any instrument or document, or instrument or documents of a
specified class, excluded from the operation of that subclause by the Minister
by notice in the Gazette.
26—Certain parties to transfer must do anything necessary to perfect
transfer
(1) AEMO must accept
assets and liabilities transferred to it under this Division.
(2) The relevant
Minister may direct AEMO's directors to accept, on AEMO's behalf, a transfer
of assets or liabilities under this Division.
(3) The relevant
parties must take necessary action to perfect a transfer of assets or
liabilities under this Division.
(4) The relevant
Minister may direct the directors of a relevant party to ensure that the
relevant party complies with an obligation under subclause (3).
(5) In this
clause—
relevant party means—
(a)
AEMO; or
(b)
REMCo.
(1) As from the
relevant day, AEMO succeeds to REMCo's powers, rights, obligations and
liabilities under any agreement or other instrument related to a gas market of
which AEMO assumes the operation.
(2) A reference in an
agreement or other instrument within the ambit of subclause (1) continues
to have effect in accordance with its terms and as if any reference to REMCo
were a reference to AEMO and, as from the relevant day, the agreement or other
instrument has effect as if AEMO had always been a party to the agreement or
instrument.
Part 3—Related matters
28—Corporations Act displacement
To the extent that any provision of this Schedule is incapable of concurrent
operation with a provision of the Corporations Act 2001 of the Commonwealth (a
designated Commonwealth provision ), the provision of this Schedule is
declared to be a Corporations legislation displacement provision for the
purposes of section 5G of that Act in relation to the designated
Commonwealth provision.
Note—
Section 5G of the Corporations Act provides that if a State law declares a
provision of a State law to be a Corporations legislation displacement
provision, any provision of the Corporations legislation with which the State
provision would otherwise be inconsistent does not apply to the extent
necessary to avoid the inconsistency.
29—Validity and effect of steps taken under Schedule
(1) Nothing done under
this Schedule—
(a) is
to be regarded as placing any person in breach of contract or confidence or as
otherwise making any person guilty of a civil wrong; or
(b) is
to be regarded as placing any person in breach of, or as constituting a
default under, any Act or other law or obligation or any provision in any
agreement, arrangement or understanding including, but not limited to, any
provision or obligation prohibiting, restricting or regulating the assignment,
transfer, sale or disposal of any property or the disclosure of any
information; or
(c) is
to be regarded as fulfilling any condition that allows a person to exercise a
power, right of remedy in respect of or to terminate any agreement or
obligation; or
(d) is
to be regarded as giving rise to any remedy for a party to a contract or an
instrument or as causing or permitting the termination of any contract or
instrument because of a change in the beneficial or legal ownership of any
relevant property; or
(e) is
to be regarded as causing any contract or instrument to be void or otherwise
unenforceable; or
(f) is
to be regarded as frustrating any contract; or
(g)
releases any surety or other obligor wholly or in part from any obligation; or
(h)
gives rise to any right or entitlement to damages or compensation.
(2) The transfer of a
liability of an entity under this Part releases the entity from the liability.
(3) If the books or
records of an entity are transferred to AEMO under this Part, AEMO must—
(a)
preserve the books and records for at least 7 years; and
(b)
allow—
(i)
the entity and, if relevant, any director or former
director of the entity; and
(ii)
any other person authorised by the relevant Minister,
reasonable access to the books and records.
(4) In this
clause—
AEMO means the Australian Energy Market Operator Limited
(ACN 072 010 327);
relevant Minister means the Minister responsible for the administration of the
Electricity Act 1996 .
Any stamp duty or other tax imposed by or under a law of this State is not
payable in relation to a transfer of assets or liabilities under this
Schedule.