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TASMANIA
__________
ELECTRICITY SUPPLY INDUSTRY
AMENDMENT BILL 2003
__________
CONTENTS
PART 1 - PRELIMINARY
1. Short title
2. Commencement
PART 2 - ELECTRICITY SUPPLY INDUSTRY ACT 1995
AMENDED
3. Principal Act
4. Section 3 amended (Interpretation)
5. Section 3A inserted
3A. Meaning of distribution network, transmission
network and electricity generating plant
6. Section 6 amended (Regulator's functions and powers)
7. Section 8 amended (Administrative fairness and
independence)
8. Section 15 amended (Regulator's power to require
information)
9. Part 2, Division 7 inserted
Division 7 - Conferral of Regulator's functions and
powers on Australian Competition and Consumer
Commission
16A. Conferral agreement
16B. Conferral notice
[Bill 16]-X
16C. Conferral of transmission pricing functions and
powers
16D. Termination of conferral agreement
10. Section 22 amended (Conditions of licence)
11. Section 34A inserted
34A. Delegation of functions and powers
12. Section 35 amended (Remuneration of system controller)
13. Part 3, Division 3 substituted
Division 3 - Special provisions relating to Hydro-
Electric Corporation
36. Ministerial notice relating to Basslink
37. Compliance plan
37A. Expiry of Division
14. Section 44 amended (Restrictions on re-supply)
15. Part 3, Division 7: Heading amended
16. Section 46 repealed
17. Section 49B amended (Review, amendment and
replacement of Code)
18. Section 49F amended (Application of Trade Practices Act
1974 and the Competition Code)
19. Section 114A amended (Compliance with direction, order,
determination and requirement)
20. Sections 114C and 114D inserted
114C. Institution of proceedings for offence
114D. Injunction
21. Sections 120 and 121 substituted
120. System controller's immunity from liability
22. Section 122 amended (Regulations)
PART 3 - ELECTRICITY SUPPLY INDUSTRY ACT 1995
FURTHER AMENDED
23. Principal Act
24. Section 3 amended (Interpretation)
25. Section 6 amended (Regulator's functions and powers)
2
26. Section 15 amended (Regulator's power to require
information)
27. Section 22 amended (Conditions of licence)
28. Section 24 repealed
29. Section 26 amended (Obligation to supply)
30. Part 3, Division 2 repealed
31. Section 120 repealed
32. Section 122 amended (Regulations)
PART 4 - ELECTRICITY SUPPLY INDUSTRY ACT 1995
FURTHER AMENDED
33. Principal Act
34. Section 3 amended (Interpretation)
35. Section 19 amended (Consideration of application)
36. Section 22 amended (Conditions of licence)
37. Section 24A inserted
24A. Licence condition relating to system security
capability
38. Section 25 amended (Licences conferring exclusive retail
franchise)
39. Section 39A repealed
40. Part 3, Division 8A inserted
Division 8A - Retailer of last resort
49AA. Retailer of last resort
41. Section 122 amended (Regulations)
PART 5 - ELECTRICITY - NATIONAL SCHEME
(TASMANIA) ACT 1999 AMENDED
42. Principal Act
43. Section 2 substituted
2. Commencement
44. Section 3 amended (Interpretation)
45. Part 2: Heading amended
3
46. Section 8A inserted
8A. Application of National Electricity Code
4
ELECTRICITY SUPPLY INDUSTRY
AMENDMENT BILL 2003
This Public Bill originated in the House of Assembly, and, having this day
passed, is now ready for presentation to the Legislative Council for its
concurrence.
P. R. ALCOCK, Clerk of the House
9 April 2003
(Brought in by the Minister for Economic Development,
Energy and Resources, the Honourable Paul Anthony
Lennon)
A BILL FOR
An Act to amend the Electricity Supply Industry Act
1995 and the Electricity - National Scheme
(Tasmania) Act 1999
Be it enacted by His Excellency the Governor of Tasmania,
by and with the advice and consent of the Legislative
Council and House of Assembly, in Parliament assembled,
as follows:
PART 1 - PRELIMINARY
Short title
1. This Act may be cited as the Electricity Supply Industry
Amendment Act 2003.
[Bill 16] 5
s. 2 No. Electricity Supply Industry Amendment 2003
Commencement
2. (1) Parts 1, 2 and 5 commence on the day on which this
Act receives the Royal Assent.
(2) The provisions of Parts 3 and 4 commence -
(a) on a day or days to be proclaimed; or
(b) at a time or times to be proclaimed; or
(c) on the occurrence of one or more events to be
proclaimed; or
(d) as otherwise proclaimed.
6
2003 Electricity Supply Industry Amendment No. s. 3
PART 2 - ELECTRICITY SUPPLY INDUSTRY ACT
1995 AMENDED
Principal Act
3. In this Part, the Electricity Supply Industry Act 1995*
is referred to as the Principal Act.
Section 3 amended (Interpretation)
4. Section 3 of the Principal Act is amended as follows:
(a) by inserting the following definition after the
definition of "access":
"Australian Competition and
Consumer Commission" means
the Australian Competition and
Consumer Commission established
by section 6A of the Trade
Practices Act 1974 of the
Commonwealth;
(b) by inserting the following definition after the
definition of "authorised officer":
"Basslink" means the interconnection
between the electricity grids of the
States of Tasmania and Victoria
by means of -
(a) a high voltage, direct
current, submarine cable
across Bass Strait; and
*No. 58 of 1995
7
s. 4 No. Electricity Supply Industry Amendment 2003
(b) converter stations in those
States; and
(c) direct current connecting
lines to those converter
stations; and
(d) alternating current
transmission connections to
the transmission networks
of those States; and
(e) related infrastructure;
(c) by omitting "by the Regulator" from the
definition of "Code";
(d) by omitting the definitions of "comply with",
"contestable customer", "contravention" and
"customer" and substituting the following
definitions:
"Competition Code" has the same
meaning as in the Competition
Policy Reform (Tasmania) Act
1996;
"contestable customer" means -
(a) a customer, or a customer of
a class, prescribed by the
regulations to be a
contestable customer; and
(b) if the regulations provide for
the determination of a
contestable customer by the
Regulator, a customer
determined by the Regulator
in accordance with the
8
2003 Electricity Supply Industry Amendment No. s. 4
regulations to be a
contestable customer;
"customer" means a person who has an
electricity supply available from a
transmission network or
distribution network and includes
(where the context requires) -
(a) a person who has all
necessary electrical
installation for the supply of
electricity from a
transmission network or
distribution network but
that electrical installation
has not been connected to
that network; and
(b) a person whose electricity
supply has been
disconnected;
(e) by omitting the definitions of "distribution"
and "distribution network" and substituting
the following definitions:
"distribution" of electricity means the
carrying of electricity between
different points using a
distribution network;
"distribution network" has the
meaning given by section 3A;
(f) by inserting the following definition after the
definition of "electricity entity":
"electricity generating plant" has the
meaning given by section 3A;
9
s. 4 No. Electricity Supply Industry Amendment 2003
(g) by inserting the following definition after the
definition of "high voltage":
"Jurisdictional Regulator" has the
same meaning as in the National
Electricity Code;
(h) by omitting "in accordance with its terms and
that Law" from paragraph (b) of the definition
of "National Electricity Code";
(i) by omitting "agreed to be enacted by the
States of New South Wales, Victoria, South
Australia and Queensland and the Australian
Capital Territory pursuant to an agreement
between those jurisdictions made on
9 May 1996, being" from the definition of
"National Electricity Law" and substituting
"contained in";
(j) by inserting the following definitions after the
definition of "National Electricity Law":
"National Electricity Market" means
the wholesale electricity market
operated and administered by
NEMMCO under the National
Electricity Code;
"NEM entry time" means the time at
which section 6 of the Electricity -
National Scheme (Tasmania) Act
1999 commences;
"NEMMCO" means the National
Electricity Market Management
Company Limited (ABN
94 072 010 327);
10
2003 Electricity Supply Industry Amendment No. s. 4
(k) by omitting the definition of "non-contestable
customer" and substituting the following
definition:
"non-contestable customer" means -
(a) a customer who is not a
contestable customer; and
(b) if the regulations provide for
the determination of a non-
contestable customer by the
Regulator, a customer
determined by the Regulator
in accordance with the
regulations to be a non-
contestable customer;
(l) by omitting "Act" second occurring from the
definition of "reviewable decision" and
substituting "Act, the regulations";
(m) by inserting "non-contestable" after "electricity
to" in the definition of "tariff";
(n) by inserting "non-contestable" after "classes of"
in the definition of "tariff";
(o) by omitting the definitions of "transmission",
"transmission network", "wholesale market"
and "wholesale trading arrangements" and
substituting the following definitions:
"transmission" of electricity means the
carrying of electricity between
different points using a
transmission network;
"transmission network" has the
meaning given by section 3A;
11
s. 4 No. Electricity Supply Industry Amendment 2003
"vesting agreement" means -
(a) an agreement (as amended
from time to time by
amendments approved by
the Minister either before or
after the making of the
amendments) that -
(i) was entered into by an
electricity entity
during June or July in
1998; and
(ii) either before or after
being entered into, has
been approved by the
Minister to be a
vesting agreement; or
(b) an agreement (as amended
from time to time by
amendments approved by
the Minister either before or
after the making of the
amendments) that -
(i) is entered into as a
consequence of the
change in electricity
trading arrangements
which occurs due to
the application of the
National Electricity
Law in Tasmania; and
(ii) is entered into in
substitution for, and
by the same parties as
entered into, an
12
2003 Electricity Supply Industry Amendment No. s. 5
agreement referred to
in paragraph (a); and
(iii) has substantially the
same effect as the
agreement which it
replaces; and
(iv) either before or after
being entered into, has
been approved by the
Minister to be a
vesting agreement;
"wholesale market" for electricity
means a market for electricity
formed by trading in electricity
between electricity entities.
Section 3A inserted
5. After section 3 of the Principal Act, the following
section is inserted in Part 1:
Meaning of distribution network, transmission
network and electricity generating plant
3A. (1) A distribution network is a system of
powerlines, substations and associated equipment -
(a) for the carrying of electricity at high or
low voltage; and
(b) for the conversion of electricity from
high to low voltage.
(2) A transmission network is a system of
powerlines, substations and associated equipment -
13
s. 5 No. Electricity Supply Industry Amendment 2003
(a) for the carrying of electricity at extra
high voltage; and
(b) for the conversion of electricity from
extra high voltage to high voltage or
from high voltage to extra high voltage.
(3) An electricity generating plant is a facility
or plant that is or could be used to generate
electricity, and includes all equipment at that
facility or plant.
(4) The Regulator may declare that any
equipment, or any equipment of a specified class, is
to be treated as part of a specified distribution
network, transmission network or electricity
generating plant for the purposes of the Act, the
regulations and the Code generally or for the
purposes of a specified provision of the Act, the
regulations or the Code.
(5) While a declaration under subsection (4)
has effect, any equipment to which the declaration
applies -
(a) forms part of the specified distribution
network, transmission network or
electricity generating plant for the
specified purpose; and
(b) does not form part of any other
distribution network, transmission
network or electricity generating plant
for the specified purpose.
(6) In subsections (3), (4) and (5) -
"equipment" means powerlines, substations,
plant, structures or other equipment;
14
2003 Electricity Supply Industry Amendment No. s. 6
"specified" means specified in the relevant
declaration made under subsection (4).
(7) The Regulator may amend or revoke a
declaration under subsection (4).
(8) A declaration under subsection (4) or an
amendment or revocation of such a declaration -
(a) is to be made by notice published in the
Gazette; and
(b) is not a statutory rule for the purposes of
the Rules Publication Act 1953.
Section 6 amended (Regulator's functions and
powers)
6. Section 6 of the Principal Act is amended as follows:
(a) by inserting the following paragraph after
paragraph (b) in subsection (1):
(ba) to monitor and enforce the
compliance of electricity entities
with their licence conditions; and
(b) by inserting the following subsections after
subsection (3):
(4) In performing and exercising his or
her functions and powers, the Regulator is to
have regard to the provisions of the National
Electricity Code and the desirability of
avoiding duplication of, or inconsistency with,
regulatory arrangements under the National
Electricity Code.
(5) In anticipation of the National
Electricity Law applying in Tasmania, the
15
s. 7 No. Electricity Supply Industry Amendment 2003
Regulator may do, before that Law so applies
in Tasmania, any act that is necessary or
expedient -
(a) for the purpose of ensuring that
the Regulator, after the National
Electricity Law so applies in
Tasmania, is able to perform and
exercise the functions and powers
of Jurisdictional Regulator in
respect of Tasmania; or
(b) for the purpose of giving full effect
to the National Electricity Code in
respect of Tasmania after the
National Electricity Law so
applies in Tasmania.
(6) If the Regulator does any act under
subsection (5) that he or she would be required
or empowered, after the NEM entry time, to do
as Jurisdictional Regulator in respect of
Tasmania under the National Electricity
Code -
(a) the Regulator is to do that act as
far as reasonably practicable in
accordance with that Code; and
(b) after the NEM entry time, that act
is taken to have been done under
that Code.
Section 8 amended (Administrative fairness and
independence)
7. Section 8 of the Principal Act is amended by inserting
after subsection (2) the following subsection:
16
2003 Electricity Supply Industry Amendment No. s. 8
(3) Subsection (2) does not apply in respect of
the directions of the Minister properly contained in a
notice under section 36 or the directions given in
accordance with regulations of a kind specified in
section 122(2A).
Section 15 amended (Regulator's power to require
information)
8. Section 15(1) of the Principal Act is amended by
omitting "Act." and substituting "Act, the regulations and
the Code.".
Part 2, Division 7 inserted
9. After section 16 of the Principal Act, the following
Division is inserted in Part 2:
Division 7 - Conferral of Regulator's functions
and powers on Australian Competition and
Consumer Commission
Conferral agreement
16A. On behalf of the State, the Minister may enter
into an agreement with the Commonwealth in
respect of the performance and exercise of any or all
of the functions and powers of the Regulator under
this Act, the regulations or the Code by the
Australian Competition and Consumer Commission.
Conferral notice
16B. (1) If the Minister has entered into an
agreement under section 16A, the Minister may
17
s. 9 No. Electricity Supply Industry Amendment 2003
specify, by notice published in the Gazette, the
functions and powers of the Regulator under this
Act, the regulations or the Code that are to be
performed and exercised by the Australian
Competition and Consumer Commission.
(2) A notice under subsection (1) -
(a) is to be consistent with the agreement
made under section 16A; and
(b) may provide for all matters relating to
the conferral of the functions and powers
of the Regulator on the Australian
Competition and Consumer Commission.
(3) The Minister may amend or repeal a notice
under subsection (1) by notice published in the
Gazette.
(4) A notice under subsection (1) or (3) takes
effect -
(a) on a day, or at a time, specified in it; or
(b) on the happening of an event specified in
it; or
(c) if no day, time or event is so specified in
it, on the day it is published in the
Gazette.
(5) A notice under subsection (1) or (3) must
not specify a day, time or event for the purposes of
subsection (4)(a) or (b) that is earlier than the time
at which the notice would take effect if no day, time
or event were so specified.
(6) A notice under subsection (1) or (3) is not a
statutory rule for the purposes of the Rules
Publication Act 1953.
18
2003 Electricity Supply Industry Amendment No. s. 9
Conferral of transmission pricing functions
and powers
16C. (1) On the taking effect of a notice referred to
in section 16B in respect of the conferral on the
Australian Competition and Consumer Commission
of a function or power of the Regulator, that function
or power -
(a) is conferred on the Australian
Competition and Consumer Commission;
and
(b) at the discretion of that Commission,
may be performed or exercised by that
Commission.
(2) The Australian Competition and Consumer
Commission may do all things necessary or
convenient to be done in connection with, or
incidental to, the performance or exercise of a
function or power conferred on it by subsection (1).
(3) A function or power conferred on the
Australian Competition and Consumer Commission
by subsection (1) may be performed or exercised by
the Regulator.
(4) Despite subsection (3), the Regulator may
not perform or exercise a function or power conferred
on the Australian Competition and Consumer
Commission by subsection (1) in relation to any
matter if -
(a) that Commission is performing or
exercising that function or power in
respect of that matter; or
(b) that Commission has performed or
exercised that function or power in
respect of that matter; or
19
s. 9 No. Electricity Supply Industry Amendment 2003
(c) the Regulator believes that that
Commission intends to perform or
exercise that function or power in
respect of that matter.
(5) Despite section 16, the Regulator is to
provide to the Australian Competition and
Consumer Commission, for the purpose of enabling
it to perform and exercise functions and powers
conferred on it by this section, information that the
Regulator has received under this Act, the
regulations or the Code.
(6) Except as otherwise specified in a notice
referred to in section 16B, the provisions of this Act,
the regulations and the Code apply to the Australian
Competition and Consumer Commission in the
performance and exercise by it of functions and
powers conferred on it by this section as if it were
the Regulator.
Termination of conferral agreement
16D. On the termination of an agreement referred
to in section 16A -
(a) all notices under section 16B in respect
of the conferral on the Australian
Competition and Consumer Commission
of a function or power of the Regulator
are revoked; and
(b) the conferral of that function or power
on the Australian Competition and
Consumer Commission ceases to have
effect; and
20
2003 Electricity Supply Industry Amendment No. s. 10
(c) that Commission is no longer entitled to
perform or exercise that function or
power.
Section 22 amended (Conditions of licence)
10. Section 22 of the Principal Act is amended as follows:
(a) by inserting in subsection (1)(a) "or
amendment" after "issue";
(b) by inserting in subsection (1)(c) "this Act and"
after "with";
(c) by inserting in subsection (2) "that the
Regulator may determine" after "conditions of
a licence";
(d) by omitting paragraph (a) from subsection (2)
and substituting the following paragraph:
(a) require an electricity entity to
comply with the provisions of the
National Electricity Code specified
in the licence; and
(e) by inserting the following subsection after
subsection (2):
(3) The Regulator must not determine as
a condition of a licence authorising the
generation of electricity issued to the Hydro-
Electric Corporation a condition that relates to
a matter referred to in section 36(1).
21
s. 11 No. Electricity Supply Industry Amendment 2003
Section 34A inserted
11. After section 34 of the Principal Act, the following
section is inserted in Division 2:
Delegation of functions and powers
34A. (1) With the consent of NEMMCO, a system
controller may delegate to NEMMCO any of its
functions or powers under this Act, the regulations
and the Code, other than this power of delegation.
(2) With the consent of the Hydro-Electric
Corporation, a system controller may delegate to the
Hydro-Electric Corporation any of its functions or
powers under this Act, the regulations and the Code,
other than this power of delegation.
(3) If a delegate does any act or omission in
the performance or exercise, or the purported
performance or exercise, of a function or power
delegated under subsection (1) or (2) -
(a) the delegate is taken to be the system
controller in respect of that act or
omission; and
(b) the delegator is taken not to be the
system controller, and is not liable, in
respect of that act or omission.
(4) All courts and all persons acting judicially
are to receive a document purporting to be executed
by the delegate in pursuance of, or as a consequence
of, a delegation under subsection (1) or (2) as if the
delegate were the system controller.
(5) Section 23AA(4) and (8) and section 23AAB
of the Acts Interpretation Act 1931 do not apply in
respect of a delegation under subsection (1) or (2).
22
2003 Electricity Supply Industry Amendment No. s. 12
Section 35 amended (Remuneration of system
controller)
12. Section 35 of the Principal Act is amended by
inserting after subsection (2) the following subsection:
(3) This section does not apply to NEMMCO or
the Hydro-Electric Corporation if it is exercising
system control over a power system as the delegate
of the system controller.
Part 3, Division 3 substituted
13. Division 3 of Part 3 of the Principal Act is repealed
and the following Division is substituted:
Division 3 - Special provisions relating to
Hydro-Electric Corporation
Ministerial notice relating to Basslink
36. (1) After consulting with the Hydro-Electric
Corporation, the Minister may establish, by written
notice provided to the Hydro-Electric Corporation,
principles to be followed by the Hydro-Electric
Corporation in relation to -
(a) the exercise by it of any rights it has
under any agreement specified in that
notice -
(i) to make, revise or amend; or
(ii) to request the making, revising or
amending of; or
(iii) to control, approve or direct the
content of -
23
s. 13 No. Electricity Supply Industry Amendment 2003
network dispatch offers under the
National Electricity Code in relation to
Basslink; and
(b) the making available by the Hydro-
Electric Corporation of any moneys
that -
(i) are payable to the Hydro-Electric
Corporation under any agreement
specified in that notice; and
(ii) are calculated by reference to, or
relate to, moneys received or
receivable under the National
Electricity Code in respect of the
transfer of electricity from Victoria
to Tasmania by means of Basslink.
(2) A notice under subsection (1) may provide
for any other matter related to, or necessary or
convenient to be included in respect of, a matter
referred to in that subsection including, but not
limited to -
(a) the day by which, in each year during
which the notice is in force, the Hydro-
Electric Corporation must prepare and
provide a draft compliance plan under
section 37; and
(b) the functions of the Regulator in respect
of the compliance by the Hydro-Electric
Corporation with the principles
established in the notice and a
compliance plan under section 37; and
(c) terms of reference and objectives for the
Regulator in performing his or her
functions; and
24
2003 Electricity Supply Industry Amendment No. s. 13
(d) matters and information required to be
included in a compliance plan under
section 37; and
(e) disclosure of information by the Hydro-
Electric Corporation; and
(f) the manner in which moneys referred to
in subsection (1)(b) are to be made
available; and
(g) any process to be followed by the Hydro-
Electric Corporation in giving effect to
the principles established in the notice.
(3) The Minister, by written notice provided to
the Hydro-Electric Corporation, may amend or
revoke a notice under subsection (1) or this
subsection.
(4) The Minister is to provide a copy of a notice
under subsection (1) or (3) to the Regulator.
(5) A notice under subsection (1) or (3) -
(a) takes effect on the day on which it is
provided to the Hydro-Electric
Corporation or on a later day specified in
it; and
(b) is not a statutory rule for the purposes of
the Rules Publication Act 1953.
Compliance plan
37. (1) In each year during which a notice under
section 36(1) is in force, the Hydro-Electric
Corporation must prepare and provide a draft
compliance plan to the Minister on or before the day
specified in the notice.
25
s. 13 No. Electricity Supply Industry Amendment 2003
(2) The draft compliance plan is to -
(a) specify details as to the manner in
which, and when, the Hydro-Electric
Corporation proposes to comply with the
principles established in the notice
under section 36(1); and
(b) contain any matters and information
required by that notice to be included in
the compliance plan.
(3) On receipt of a draft compliance plan, the
Minister may do any one or more of the following:
(a) require the Hydro-Electric Corporation
to provide further information;
(b) require the Hydro-Electric Corporation
to provide to the Minister within the
time specified by the Minister an
amended draft compliance plan;
(c) amend the draft compliance plan or the
amended draft compliance plan;
(d) approve the draft compliance plan or an
amended draft compliance plan as the
compliance plan.
(4) If the Hydro-Electric Corporation fails to
provide a draft compliance plan to the Minister by
the day it is required to do so, the Minister may
determine a compliance plan for the Hydro-Electric
Corporation.
(5) The compliance plan -
(a) takes effect when the Hydro-Electric
Corporation receives -
26
2003 Electricity Supply Industry Amendment No. s. 14
(i) notice of its approval under
subsection (3)(d); or
(ii) notice of its determination under
subsection (4) and a copy of the
compliance plan; and
(b) has effect until a further compliance
plan so approved or determined by the
Minister takes effect.
(6) The Hydro-Electric Corporation must -
(a) comply with the compliance plan; and
(b) publish the compliance plan on its
website.
(7) Each year the Hydro-Electric Corporation
must -
(a) have its compliance with the compliance
plan audited by a person approved by
the Regulator; and
(b) provide a copy of the report of that
person on the audit to the Regulator.
Expiry of Division
37A. This Division expires on 31 December 2010.
Section 44 amended (Restrictions on re-supply)
14. Section 44 of the Principal Act is amended as follows:
(a) by inserting in subsection (3) "and the
Competition Code" after "Commonwealth";
27
s. 15 No. Electricity Supply Industry Amendment 2003
(b) by inserting the following subsection after
subsection (3):
(4) This section does not apply to a
contract of a kind referred to in subsection (1)
entered into by an electricity entity on or after
1 July 2001.
Part 3, Division 7: Heading amended
15. Division 7 of Part 3 of the Principal Act is amended by
omitting "Compliance obligations" from the heading to
that Division and substituting "Effect of non-
compliance with Act".
Section 46 repealed
16. Section 46 of the Principal Act is repealed.
Section 49B amended (Review, amendment and
replacement of Code)
17. Section 49B of the Principal Act is amended by
inserting after subsection (3) the following subsections:
(4) By notice provided to the Regulator, the
Minister may amend, or rescind and substitute, the
Code as he or she considers necessary or convenient
for any one or more of the following purposes:
(a) facilitating participation of electricity
entities in the National Electricity
Market;
28
2003 Electricity Supply Industry Amendment No. s. 18
(b) facilitating the application of the
National Electricity Law and the
National Electricity Code in Tasmania;
(c) the performance and exercise by the
Australian Competition and Consumer
Commission of functions and powers
conferred on it by section 16C;
(d) ensuring that, after the NEM entry
time, the Code is consistent with the
National Electricity Law and the
National Electricity Code.
(5) In amending or rescinding and substituting
the Code under subsection (4), the Minister may
consult with those persons the Minister considers
appropriate and is not bound by any procedures
relating to the amendment or rescission and
substitution of the Code specified in the Code.
(6) After amending or rescinding and
substituting the Code under subsection (4), the
Minister is to publish in the Gazette notice of the
making of that amendment or rescission and
substitution.
Section 49F amended (Application of Trade
Practices Act 1974 and the Competition Code)
18. Section 49F of the Principal Act is amended by
omitting subsection (1).
Section 114A amended (Compliance with direction,
order, determination and requirement)
19. Section 114A of the Principal Act is amended as
follows:
29
s. 20 No. Electricity Supply Industry Amendment 2003
(a) by inserting in subsection (1) "order," after
"direction,";
(b) by omitting from subsection (1) "by the
Regulator";
(c) by inserting in subsection (2)(a) "order," after
"direction,";
(d) by omitting from subsection (2)(a) "of the
Regulator" and substituting "referred to in
that subsection".
Sections 114C and 114D inserted
20. After section 114B of the Principal Act, the following
sections are inserted in Division 3:
Institution of proceedings for offence
114C. Proceedings in respect of an offence against
section 114A or 114B may only be instituted by the
Regulator or a person authorised by the Regulator.
Injunction
114D. (1) If the Regulator considers that an
electricity entity is contravening, has contravened or
is proposing to contravene this Act, the regulations
or the Code, he or she may apply to a magistrate for
an injunction.
(2) If a magistrate is satisfied that an
electricity entity is contravening, has contravened or
is proposing to contravene this Act, the regulations
or the Code, the magistrate may grant an injunction
in terms the magistrate considers appropriate.
(3) Without limiting subsection (2), an
injunction may require the electricity entity -
30
2003 Electricity Supply Industry Amendment No. s. 20
(a) to refrain from engaging in any conduct
specified in the injunction; and
(b) to take the action specified in the
injunction to remedy any consequences
of the act of the electricity entity that
contravened this Act, the regulations or
the Code, including -
(i) the refunding of any amount
wrongfully paid; and
(ii) the disclosure of information; and
(iii) the publication of advertisements
relating to the contravention or
the actions to remedy the
contravention.
(4) An injunction may be granted -
(a) in proceedings for an offence against this
Act, the regulations or the Code; or
(b) in proceedings brought for the purposes
of obtaining the injunction.
(5) An injunction may be granted -
(a) in the case where an electricity entity
has contravened this Act, the
regulations or the Code, whether or not
it appears to a magistrate that the
electricity entity intends to continue or
repeat that contravention; and
(b) whether or not the electricity entity has
previously contravened this Act, the
regulations or the Code; and
(c) whether or not there is an imminent
danger of substantial damage to any
31
s. 21 No. Electricity Supply Industry Amendment 2003
person if the electricity entity
contravenes this Act, the regulations or
the Code.
(6) An injunction may be granted in addition
to any order that a magistrate may make under this
Act.
(7) An interim injunction may be granted
under this section pending final determination of the
application.
(8) With the consent of the parties, a final
injunction may be granted without proof that proper
grounds for the injunction exist.
(9) In proceedings for an injunction, the
Regulator may not be required to enter into an
undertaking as to damages.
(10) An injunction may be rescinded or varied
at any time.
Sections 120 and 121 substituted
21. Sections 120 and 121 of the Principal Act are repealed
and the following section is substituted:
System controller's immunity from liability
120. (1) A system controller, or an officer or
employee of a system controller, incurs no liability
for an act or omission done or made in good faith in
the exercise, or purported exercise, of the system
controller's functions under this Act.
(2) If a system controller is a body corporate,
subsection (1) does not apply to any liability of an
officer of the system controller to the system
controller.
32
2003 Electricity Supply Industry Amendment No. s. 22
Section 122 amended (Regulations)
22. Section 122 of the Principal Act is amended as follows:
(a) by omitting paragraph (f) from subsection (2);
(b) by omitting paragraph (b) from subsection (2A)
and substituting the following paragraph:
(b) the making by the Regulator of
determinations regulating the
prices that may be charged by
electricity entities for the supply of
electricity and the provision of
other services; and
(c) by omitting from subsection (2A)(c) "orders"
and substituting "determinations";
(d) by inserting in subsection (2A)(d) "and
determinations" after "investigations";
(e) by inserting in subsection (2A)(e) "and
determinations" after "investigations";
(f) by omitting from subsection (2A)(f) "orders"
and substituting "determinations";
(g) by omitting subsection (2B) and substituting
the following subsections:
(2B) Without limiting the type of
determinations that, under subsection (2A)(b),
the regulations may require or permit the
Regulator to make or the matters to be
included in the determinations, the
regulations may require or allow the prices
regulated by the determinations to be
regulated by specifying, or by reference to, one
or more of the following:
33
s. 22 No. Electricity Supply Industry Amendment 2003
(a) maximum prices that may be
charged by electricity entities for
the supply of electricity and the
provision of other services;
(b) maximum revenues in respect of
the supply of electricity and the
provision of other services
provided by electricity entities;
(c) pricing policies or principles to be
applied by electricity entities;
(d) other price control mechanisms to
be applied by electricity entities;
(e) any other prescribed matter.
(2BA) Without limiting subsection (1),
the regulations, for the purposes of the
application of the National Electricity Code in
Tasmania, may -
(a) confer functions and powers on the
Regulator; and
(b) vary the functions and powers of
the Regulator under this Act, the
regulations or the Code; and
(c) provide for any matter which the
National Electricity Code
contemplates will be provided for
or dealt with by Tasmania as a
participating jurisdiction within
the meaning of the National
Electricity Law.
(2BB) If the regulations provide for the
making by the Regulator of determinations
referred to in subsection (2A)(b) -
34
2003 Electricity Supply Industry Amendment No. s. 22
(a) the determinations are not
statutory rules for the purposes of
the Rules Publication Act 1953;
and
(b) the Treasurer may not declare
such a determination to be
subordinate legislation under
section 3(2) of the Subordinate
Legislation Act 1992.
(h) by inserting the following paragraph after
paragraph (b) in subsection (2C):
(ba) the Electricity Supply Industry
Amendment Act 2003 or a
provision of that Act;
35
s. 23 No. Electricity Supply Industry Amendment 2003
PART 3 - ELECTRICITY SUPPLY INDUSTRY ACT
1995 FURTHER AMENDED
Principal Act
23. In this Part, the Electricity Supply Industry Act 1995*
is referred to as the Principal Act.
Section 3 amended (Interpretation)
24. Section 3 of the Principal Act is amended as follows:
(a) by omitting the definition of "access";
(b) by omitting "a wholesale market" from the
definition of "retailing" and substituting "the
National Electricity Market";
(c) by omitting the definition of "system
controller";
(d) by omitting "agreement;" from paragraph
(b)(iv) of the definition of "vesting agreement"
and substituting "agreement.";
(e) by omitting the definition of "wholesale
market".
Section 6 amended (Regulator's functions and
powers)
25. Section 6 of the Principal Act is amended as follows:
(a) by omitting paragraph (c) from subsection (1)
and substituting the following paragraph:
*No. 58 of 1995
36
2003 Electricity Supply Industry Amendment No. s. 26
(c) to perform and exercise the
functions and powers of
Jurisdictional Regulator in respect
of Tasmania under the National
Electricity Code; and
(b) by inserting in subsection (2) "other than the
powers and functions referred to in
subsection (1)(c)," after "Act,".
Section 15 amended (Regulator's power to require
information)
26. Section 15(1) of the Principal Act is amended by
omitting "regulations and the Code." and substituting
"regulations, the Code and the National Electricity Code.".
Section 22 amended (Conditions of licence)
27. Section 22 of the Principal Act is amended as follows:
(a) by omitting paragraph (e) from subsection (1)
and substituting the following paragraph:
(e) a condition that the electricity
entity must comply with directions
or requirements given or made by
the Regulator under this Act, the
regulations or the Code;
(b) by omitting paragraph (a) from subsection (2).
Section 24 repealed
28. Section 24 of the Principal Act is repealed.
37
s. 29 No. Electricity Supply Industry Amendment 2003
Section 26 amended (Obligation to supply)
29. Section 26 of the Principal Act is amended as follows:
(a) by omitting subsection (1);
(b) by omitting from subsection (2) "(despite the
obligations imposed by the conditions of its
licence)".
Part 3, Division 2 repealed
30. Division 2 of Part 3 of the Principal Act is repealed.
Section 120 repealed
31. Section 120 of the Principal Act is repealed.
Section 122 amended (Regulations)
32. Section 122(2) of the Principal Act is amended by
omitting paragraph (d).
38
2003 Electricity Supply Industry Amendment No. s. 33
PART 4 - ELECTRICITY SUPPLY INDUSTRY ACT
1995 FURTHER AMENDED
Principal Act
33. In this Part, the Electricity Supply Industry Act 1995*
is referred to as the Principal Act.
Section 3 amended (Interpretation)
34. Section 3 of the Principal Act is amended as follows:
(a) by inserting the following definition after the
definition of "customer":
"customer retail services", in relation
to a customer, means -
(a) the sale of electricity to the
customer in respect of
premises; and
(b) the provision of any
prescribed services in
respect of premises;
(b) by inserting the following definitions after the
definition of "Regulator":
"retailer" means an electricity entity
holding a licence authorising the
retailing of electricity;
"retailer of last resort" means a
person appointed as retailer of last
resort under section 49AA;
*No. 58 of 1995
39
s. 35 No. Electricity Supply Industry Amendment 2003
Section 19 amended (Consideration of application)
35. Section 19(2) of the Principal Act is amended by
omitting paragraph (f).
Section 22 amended (Conditions of licence)
36. Section 22 of the Principal Act is amended as follows:
(a) by omitting from subsection (1)(i) "body." and
substituting "body;";
(b) by inserting the following paragraph after
paragraph (i) in subsection (1):
(j) in respect of a licence authorising
the generation of electricity, a
condition that the electricity entity
publish information relating to the
electricity entity's energy
production capability of the kind
prescribed in the regulations.
(c) by omitting from subsection (2)(b) "area." and
substituting "area; and";
(d) by inserting the following paragraphs after
paragraph (b) in subsection (2):
(c) require participation in a scheme
of a kind referred to in
section 122(2BB)(a) in respect of a
retailer of last resort; and
(d) in the case of a licence authorising
retailing of electricity, require a
retailer to have such agreements
with one or more electricity
entities that distribute electricity
as the Regulator considers -
40
2003 Electricity Supply Industry Amendment No. s. 37
(i) are necessary to ensure that
electricity is supplied to the
retailer's customers; or
(ii) are appropriate to ensure
adequate coordination
between the retailer and the
electricity entities; and
(e) in the case of a licence authorising
the distribution of electricity,
require the electricity entity to
have such agreements with one or
more retailers as the Regulator
considers -
(i) are necessary to ensure that
electricity is supplied to the
retailers' customers; or
(ii) are appropriate to ensure
adequate coordination
between the electricity
entity and the retailers; and
(f) include conditions of a prescribed
kind.
Section 24A inserted
37. After section 24 of the Principal Act, the following
section is inserted in Subdivision 3:
Licence condition relating to system security
capability
24A. (1) In this section, "Transend" means
Transend Networks Pty Ltd (ABN 57 082 586 892).
41
s. 38 No. Electricity Supply Industry Amendment 2003
(2) If a licence authorises Transend to operate
a transmission network, it is a condition of the
licence that Transend must ensure that it has the
capability to maintain the security of the power
system in mainland Tasmania.
Section 25 amended (Licences conferring exclusive
retail franchise)
38. Section 25 of the Principal Act is amended as follows:
(a) by omitting subsection (1) and substituting the
following subsection:
(1) If an electricity entity has an
exclusive right under its licence to sell
electricity to non-contestable customers within
a particular supply area, the licence is subject
to the following conditions:
(a) on request by any person who is,
or on the supply of electricity
would be, a non-contestable
customer, the electricity entity
must offer to provide customer
retail services to the person at an
electrical installation in the area
on reasonable terms and
conditions;
(b) on compliance by the person
referred to in paragraph (a) with
the terms and conditions offered
by the electricity entity, the
electricity entity must provide
customer retail services to the
person at the relevant electrical
installation;
42
2003 Electricity Supply Industry Amendment No. s. 38
(c) the electricity entity must -
(i) provide the information
specified in a written
direction of the Regulator to
the person (including the
Regulator), and in the
manner and time, specified
in that direction; and
(ii) otherwise comply with that
direction.
(b) by omitting from subsection (2) "supply
electricity under subsection (1)" and
substituting "provide customer retail services
to a person under subsection (1)(a)";
(c) by omitting from subsection (2)(a) "sale of
electricity" and substituting "provision of
customer retail services";
(d) by omitting from subsection (2)(a) "negotiated
contractual arrangements that are not based
on the tariff" and substituting "the person
entering into a contract under section 40 for
the provision of those services that is not
based on the tariff";
(e) by omitting from subsection (2)(b) "customer"
and substituting "person";
(f) by omitting from subsection (2)(b) "power
system" and substituting "distribution
network or transmission network";
(g) by omitting subsection (3) and substituting the
following subsections:
(3) Contracts between non-contestable
customers and retailers that are not based on
43
s. 38 No. Electricity Supply Industry Amendment 2003
the relevant tariff may require the customer to
pay for, or contribute towards, the cost of
network services.
(4) A direction referred to in
subsection (1)(c) -
(a) may only require the provision of
information if the Regulator is of
the opinion that the provision of
that information is necessary to
promote the development of the
retail market in electricity supply;
and
(b) may require the electricity entity
to do anything that the Regulator
considers necessary or convenient
for the purpose of facilitating the
provision of the information.
(5) If a customer who was being
provided with customer retail services by an
electricity entity on the basis of the relevant
tariff under this section or otherwise becomes
a contestable customer, that customer is to
continue to be provided with those services on
the basis of that tariff until the first of the
following occurs:
(a) the customer enters into a contract
with a retailer for the sale of
electricity to the customer;
(b) the period of 12 months
commencing on the day the
customer becomes a contestable
customer ends.
44
2003 Electricity Supply Industry Amendment No. s. 39
Section 39A repealed
39. Section 39A of the Principal Act is repealed.
Part 3, Division 8A inserted
40. After section 49 of the Principal Act, the following
Division is inserted in Part 3:
Division 8A - Retailer of last resort
Retailer of last resort
49AA. (1) A person (who may, but need not be, an
electricity entity) may be appointed under the
regulations as retailer of last resort.
(2) The retailer of last resort has the following
functions:
(a) the provision of customer retail services
to the customers of a retailer in any of
the following circumstances:
(i) the retailer's licence under this Act
is cancelled or surrendered or
expires;
(ii) the retailer is suspended from
trading in the National Electricity
Market or ceases to be a Market
Participant within the meaning of
the National Electricity Code;
(iii) the retailer ceases retailing
electricity in Tasmania;
(iv) any prescribed circumstances;
(b) any prescribed functions;
45
s. 41 No. Electricity Supply Industry Amendment 2003
(c) any other functions imposed on that
electricity entity in accordance with the
regulations.
(3) The retailer of last resort has the
prescribed powers and any other powers given to it
in accordance with the regulations.
(4) This section and regulations of a kind
contemplated by this section and section 122(2BB)
are declared to be Corporations legislation
displacement provisions for the purposes of section
5G of the Corporations Act 2001 of the
Commonwealth in relation to the Corporations
legislation to which Part 1.1A of that Act applies.
Section 122 amended (Regulations)
41. Section 122 of the Principal Act is amended by
omitting subsection (2BB) and substituting the following
subsections:
(2BB) Without limiting subsection (1), the
regulations may provide for all matters relating to
the appointment of a retailer of last resort and its
functions and powers including -
(a) the establishment of a scheme in respect
of the provision of customer retail
services to the customers of a retailer in
any of the following circumstances:
(i) the retailer's licence under this Act
is cancelled or surrendered or
expires;
(ii) the retailer is suspended from
trading in the National Electricity
Market or ceases to be a Market
46
2003 Electricity Supply Industry Amendment No. s. 41
Participant within the meaning of
the National Electricity Code;
(iii) the retailer ceases retailing
electricity in Tasmania;
(iv) any prescribed circumstances; and
(b) the circumstances when that scheme
will operate; and
(c) the customers or class of customer to
which the retailer of last resort must
provide customer retail services and the
period during which it must do so; and
(d) the establishment, application and
enforcement of one or more contractual
relationships between the retailer of last
resort and -
(i) an electricity entity; or
(ii) the customers to which the retailer
of last resort must provide
customer retail services; or
(iii) another person; and
(e) the terms and conditions of a contractual
relationship referred to in paragraph (d)
or the manner of determining those
terms and conditions; and
(f) the functions and powers of the
Regulator in respect of the functions and
powers of the retailer of last resort or a
scheme referred to in paragraph (a); and
(g) the transfer of customers; and
47
s. 41 No. Electricity Supply Industry Amendment 2003
(h) the ending of contracts between a
retailer and the customers to which the
retailer of last resort must provide
customer retail services; and
(i) any other related matter.
(2BC) Without limiting subsection (1), the
regulations may -
(a) establish, apply and enforce one or more
contractual relationships between
electricity entities or between an
electricity entity and customers; and
(b) provide for the terms and conditions of a
contractual relationship referred to in
paragraph (a) or the manner of
determining those terms and conditions;
and
(c) require an electricity entity to develop
and publish standard contract terms and
conditions that relate to the supply of
electricity or the provision of services;
and
(d) require an electricity entity to have
those standard contract terms and
conditions approved in the prescribed
manner; and
(e) require an electricity entity to offer to
enter into contracts with the same terms
and conditions as those standard
contract terms and conditions in the
circumstances specified in the
regulations; and
(f) prohibit an electricity entity from
entering into a contract in relation to the
48
2003 Electricity Supply Industry Amendment No. s. 41
supply of electricity or the provision of
services if the contract -
(i) does not include prescribed terms
and conditions, terms and
conditions of a prescribed type or
terms and conditions determined
by the Regulator; or
(ii) is not on prescribed terms and
conditions, or terms and conditions
of a prescribed type or terms and
conditions determined by the
Regulator; or
(iii) includes prescribed terms and
conditions, terms and conditions of
a prescribed type and terms and
conditions determined by the
Regulator; and
(g) provide that the terms and conditions of
a contractual relationship established
and applied by the regulations are to be
approved in the prescribed manner; and
(h) prescribe the functions and powers of
the Regulator in relation to any matter
referred to in this subsection; and
(i) provide for any matter relating to a
matter referred to in this subsection.
(2BD) Without limiting subsection (1), the
regulations may provide for -
(a) the effects of a customer becoming a
contestable customer; and
(b) the making by the Regulator of
determinations that a customer be a
49
s. 41 No. Electricity Supply Industry Amendment 2003
contestable customer or a non-
contestable customer, regardless of
whether or not the customer is a
customer, or a customer of a class,
prescribed by the regulations to be a
contestable customer; and
(c) the power of the Regulator to delegate
any functions and powers specified in
the regulations with relation to a matter
referred to in this subsection; and
(d) any related matter.
(2BE) If the regulations provide for the
making by the Regulator of determinations referred
to in subsection (2A)(b) or (2BD)(b) -
(a) those determinations are not statutory
rules for the purposes of the Rules
Publication Act 1953; and
(b) the Treasurer may not declare such a
determination to be subordinate
legislation under section 3(2) of the
Subordinate Legislation Act 1992.
50
2003 Electricity Supply Industry Amendment No. s. 42
PART 5 - ELECTRICITY - NATIONAL SCHEME
(TASMANIA) ACT 1999 AMENDED
Principal Act
42. In this Part, the Electricity - National Scheme
(Tasmania) Act 1999* is referred to as the Principal Act.
Section 2 substituted
43. Section 2 of the Principal Act is repealed and the
following section is substituted:
Commencement
2. The provisions of this Act commence -
(a) on a day or days to be proclaimed; or
(b) at a time or times to be proclaimed; or
(c) on the occurrence of one or more events
to be proclaimed; or
(d) as otherwise proclaimed.
Section 3 amended (Interpretation)
44. Section 3(1) of the Principal Act is amended by
inserting before the definition of "National Electricity
(Tasmania) Law" the following definitions:
"Australian Competition and Consumer
Commission" means the Australian
Competition and Consumer Commission
*No. 28 of 1999
51
s. 45 No. Electricity Supply Industry Amendment 2003
established by section 6A of the Trade
Practices Act 1974 of the Commonwealth;
"National Electricity Code" means -
(a) the code of conduct, called the National
Electricity Code, approved by the
Ministers of each of the States of New
South Wales, Victoria, Queensland and
South Australia for the time being in
accordance with section 6(1) of the
National Electricity Law; or
(b) if that code is amended, that code as so
amended;
Part 2: Heading amended
45. Part 2 of the Principal Act is amended by omitting
"NATIONAL ELECTRICITY (TASMANIA) LAW AND
NATIONAL ELECTRICITY (TASMANIA)
REGULATIONS" from the heading to that Part and
substituting "NATIONAL ELECTRICITY (TASMANIA)
LAW, NATIONAL ELECTRICITY (TASMANIA)
REGULATIONS AND NATIONAL ELECTRICITY
CODE".
Section 8A inserted
46. After section 8 of the Principal Act, the following
section is inserted in Part 2:
Application of National Electricity Code
8A. In its application in and in respect of Tasmania,
the National Electricity Code applies subject to any
jurisdictional derogations for Tasmania authorised
52
2003 Electricity Supply Industry Amendment No. s. 46
by the Australian Competition and Consumer
Commission.
Government Printer, Tasmania 53