NATIONAL ELECTRICITY (SOUTH AUSTRALIA) ACT 1996

South Australian Current Acts

[Index] [Table] [Search] [Search this Act] [Notes] [Noteup] [Previous] [Next] [Download] [Help]

NATIONAL ELECTRICITY (SOUTH AUSTRALIA) ACT 1996 - SCHEDULE

Schedule—National Electricity Law

Part 1—Preliminary

1—Citation

This Law may be referred to as the National Electricity Law.

2—Definitions

(1) In this Law—

access determination means a determination of the AER under Part 10;

access dispute has the meaning given by section 2A;

additional advisory functions —AEMO's additional advisory functions are as set out in section 50B(1);

additional Minister initiated Rules means Rules made under Part 7 Division 2 (other than section 90) by the Minister in right of the Crown of South Australia administering Part 2 of the National Electricity (South Australia) Act 1996 of South Australia;

adoptive jurisdiction means (according to context)—

(a) a participating jurisdiction for which AEMO is authorised to exercise its additional advisory functions; or

(b) a participating jurisdiction for which AEMO is authorised to exercise its declared network functions;

AEMC means the Australian Energy Market Commission established by section 5 of the Australian Energy Market Commission Establishment Act 2004 of South Australia;

AEMC initiated Rule means a Rule of the kind referred to in section 91(2);

AEMO amendments means—

(a) the amendments to this Law made by the National Electricity (South Australia) (National Electricity Law—Australian Energy Market Operator) Amendment Act 2009 ; and

(b) the amendments to the Rules made by the National Electricity (South Australia) (National Electricity Rules—Australian Energy Market Operator) Amendment Rules 2009 ;

AER means the Australian Energy Regulator established by section 44AE of the Competition and Consumer Act 2010 of the Commonwealth;

AER economic regulatory decision means a decision (however described) of the AER under this Law or the Rules performing or exercising an AER economic regulatory function or power;

AER economic regulatory function or power means a function or power performed or exercised by the AER under this Law or the Rules (other than making a rate of return instrument) that relates to—

(a) the economic regulation of services provided by—

(i) a regulated distribution system operator by means of, or in connection with, a distribution system; or

(ii) a regulated transmission system operator or AEMO by means of, or in connection with, a transmission system; or

(b) the preparation of a network service provider performance report; or

(d) an access determination;

Note—

The application of a rate of return instrument under this Law is an AER economic regulatory function or power. See section 18V(2).

AER market liquidity obligation functions means the functions conferred on the AER under section 15(1)(eba);

AER trial waiver functions means the functions conferred on the AER under Part 3 Division 1D;

AER wholesale market monitoring functions —the AER wholesale market monitoring functions are as set out in section 18C(1);

AER wholesale market reporting functions —the AER wholesale market reporting functions are as set out in section 18C(2);

annual turnover has the same meaning as in section 2(1) of Schedule 2 to the Competition and Consumer Act 2010 of the Commonwealth;

application Act means an Act of a participating jurisdiction that applies, as a law of that jurisdiction, this Law or any part of this Law;

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

augmentation of a transmission or distribution system means work to enlarge the system or to increase its capacity to transmit or distribute electricity;

augmentation connection agreement means an agreement for connecting an augmentation to a declared shared network;

Australian Energy Market Operator or AEMO means Australian Energy Market Operator Limited (ACN 072 010 327);

Note—

Before its change of name, AEMO was known as NEMMCO.

CDR data has the same meaning as in the Competition and Consumer Act 2010 of the Commonwealth;

CDR provisions has the same meaning as in the Competition and Consumer Act 2010 of the Commonwealth;

changeover date means 1 July 2009 or some other date fixed as the changeover date by Ministerial Gazette notice;

civil monetary liability means a liability for damages, compensation or any other monetary amount that can be recovered by way of civil proceedings but does not include a liability for a civil penalty or an infringement penalty under this Law or a liability for the costs of a proceeding;

civil penalty —see section 2AB;

civil penalty provision —see section 2AA(1);

conduct provision —see section 2AA(2);

connection service means a connection service within the meaning of the Rules;

constituent components , in relation to a relevant regulatory decision, means the matters that constitute the elements or components of the relevant regulatory decision and on which that relevant regulatory decision is based and includes—

(a) matters that go to the making of the relevant regulatory decision; and

(b) decisions made by the AER for the purposes of the relevant regulatory decision;

Court means—

(a) where this Law applies as a law of the Commonwealth, the Federal Court;

(b) where this Law applies as a law of a participating jurisdiction that is a State or a Territory, the Supreme Court of that jurisdiction;

data holder has the same meaning as in the Competition and Consumer Act 2010 of the Commonwealth;

derogation means a jurisdictional derogation or participant derogation;

declared network functions —AEMO's declared network functions are as set out in section 50C(1);

declared power system of an adoptive jurisdiction has the meaning given by the application Act of that jurisdiction;

declared shared network of an adoptive jurisdiction means the adoptive jurisdiction's declared transmission system excluding any part of it that is a connection asset within the meaning of the Rules;

declared transmission system of an adoptive jurisdiction has the meaning given by the application Act of that jurisdiction and includes any augmentation of the defined declared transmission system;

declared transmission system operator of an adoptive jurisdiction has the meaning given by the application Act of that jurisdiction;

designated energy sector means an energy sector designated under section 56AC of the Competition and Consumer Act 2010 of the Commonwealth;

direct control network service has the meaning given by section 2B;

Dispute resolution panel means a person or panel of persons appointed under the Rules to hear and determine a rule dispute;

distribution determination means a determination of the AER under the Rules that regulates any 1 or more of the following:

(a) the terms and conditions for the provision of electricity network services that are the subject of economic regulation under the Rules including the prices an owner, controller or operator of a distribution system charges or may charge for those services;

(b) the revenue an owner, controller or operator of a distribution system earns or may earn from the provision by that owner, controller or operator of electricity network services that are the subject of economic regulation under the Rules;

distribution reliability standard means a standard imposed by or under the Rules or jurisdictional electricity legislation relating to the reliability or performance of a distribution system;

distribution service standard means a standard relating to the standard of services provided by a regulated distribution system operator by means of, or in connection with, a distribution system imposed—

(a) by or under jurisdictional electricity legislation; or

(b) by the AER in accordance with the Rules;

distribution system means the apparatus, electric lines, equipment, plant and buildings used to convey or control the conveyance of electricity that the Rules specify as, or as forming part of, a distribution system and includes a regulated stand-alone power system to the extent provided by the Rules;

distribution system safety duty means a duty or requirement under an Act of a participating jurisdiction, or any instrument made or issued under or for the purposes of that Act, relating to—

(a) the safe distribution of electricity in that jurisdiction; or

(b) the safe operation of a distribution system in that jurisdiction;

draft Rule determination means a determination of the AEMC under section 99;

ECA amendments means the amendments to this Law made by the Statutes Amendment (Energy Consumers Australia) Act 2014 of South Australia;

effective competition , for Part 3 Division 1A—see section 18B;

electricity contract , for Part 3 Division 1A—see section 18A;

electricity network service means a service provided by means of, or in connection with, a transmission system or distribution system;

electricity services means services that are necessary or incidental to the supply of electricity to consumers of electricity, including—

(a) the generation of electricity;

(b) electricity network services;

end user means a person who acquires electricity for consumption purposes, and includes a retail customer;

Energy Consumers Australia or ECA means the company incorporated, or to be incorporated, by the name Energy Consumers Australia Limited;

energy ombudsman has the same meaning as in the National Energy Retail Law;

Energy Security Board means the Board established by the MCE on 14 July 2017 to provide the MCE with advice for the purposes of—

(a) whole-of-system oversight for energy security and reliability of the national electricity market; and

(b) improving long-term planning for the national electricity market;

Federal Court means the Federal Court of Australia;

final Rule determination means a determination of the AEMC under section 102;

financial risk management product , for Part 3 Division 1A—see section 18A;

form of regulation factors has the meaning given by section 2F;

general market information order means an order under section 53(1)(a) requiring information from persons of a class specified in the order;

general regulatory information order has the meaning given by section 28C;

initial National Electricity Rules means the National Electricity Rules made under section 90;

innovative trial principles —see section 7B;

interconnected national electricity system means the interconnected transmission and distribution system in this jurisdiction and in the other participating jurisdictions used to convey and control the conveyance of electricity to which are connected—

(a) generating systems and other facilities; and

(b) loads settled through the wholesale exchange operated and administered by AEMO under this Law and the Rules;

jurisdictional derogation means a Rule made at the request of a Minister of a participating jurisdiction that—

(a) exempts, in a specified case or class of cases, a person or a body performing or exercising a function or power, or conferred a right, or on whom an obligation is imposed, under the Rules (including a Registered participant), or a class of such a person or body, or AEMO, from complying with a provision, or a part of a provision, of the Rules in the participating jurisdiction to which the derogation relates; or

(b) modifies or varies the application of a provision of the Rules (with or without substitution of a provision of the Rules or a part of a provision of the Rules) to a person or a body performing or exercising a function or power, or conferred a right, or on whom an obligation is imposed, under the Rules (including a Registered participant), or a class of such a person or body, or AEMO, in the participating jurisdiction to which the derogation relates;

jurisdictional electricity legislation means an Act of a participating jurisdiction (other than national electricity legislation), or any instrument made or issued under or for the purposes of that Act, that regulates the generation, transmission, distribution, supply or sale of electricity in that jurisdiction;

jurisdictional regulator means—

(a) if this Law is applied as a law of the State of New South Wales—

(i) the Independent Pricing and Regulatory Tribunal of New South Wales established by section 5(1) of the Independent Pricing and Regulatory Tribunal Act 1992 of New South Wales; or

(ii) if the functions or powers of the Independent Pricing and Regulatory Tribunal of New South Wales under this Law are transferred to the AER by or under a law of New South Wales, the AER;

(b) if this Law is applied as a law of the State of Victoria—

(i) the Essential Services Commission established by section 7(1) of the Essential Services Commission Act 2001 of Victoria; or

(ii) if the functions or powers of that Essential Services Commission under this Law are transferred to the AER by or under a law of Victoria, the AER;

(i) the Queensland Competition Authority established by section 7 of the Queensland Competition Authority Act 1997 of Queensland; or

(ii) if the functions or powers of the Queensland Competition Authority under this Law are transferred to the AER by or under a law of Queensland, the AER;

(d) if this Law is applied as a law of the State of South Australia—

(i) the Essential Services Commission established by section 4(1) of the Essential Services Commission Act 2002 of South Australia; or

(ii) if the functions or powers of that Essential Services Commission under this Law are transferred to the AER by or under a law of South Australia, the AER;

(e) if this Law is applied as a law of the Australian Capital Territory—

(i) the Independent Competition and Regulatory Commission for the Australian Capital Territory established by section 5(1) of the Independent Competition and Regulatory Commission Act 1997 of the Australian Capital Territory; or

(ii) if the functions or powers of the Independent Competition and Regulatory Commission for the Australian Capital Territory under this Law are transferred to the AER by or under a law of the Australian Capital Territory, the AER;

(f) if a person or body referred to in paragraphs (a) to (e) is abolished under an Act of a participating jurisdiction and another person or body is established under an Act of that participating jurisdiction with functions and powers that correspond to the functions and powers of the person or body referred to in paragraphs (a) to (e), that other person or body;

(g) if the functions and powers of a person or body referred to in paragraphs (a) to (e) are transferred to another person or body established under an Act of the relevant participating jurisdiction, that other person or body;

(h) any other person or body established under an Act of a participating jurisdiction that is prescribed by the Regulations as a jurisdictional regulator of that jurisdiction;

jurisdictional system security coordinator means a person appointed under section 110;

liable entity —see section 14D;

listed corporation has the meaning given by section 9 of the Corporations Act 2001 of the Commonwealth;

market information instrument means a general market information order or a market information notice;

market information notice means a notice under section 53(1)(b) requiring information from the person to whom the notice is addressed;

market liquidity obligation means the obligation imposed by Rules made under Schedule 1 item 6G and includes matters related to the obligation;

market monitoring information notice , for Part 3 Division 1A—see section 18EC;

market monitoring information order , for Part 3 Division 1A—see section 18EC;

MCE means the group of Ministers (constituting or forming part of a Ministerial Council, Standing Council of Ministers or similar body (however described)) responsible for energy matters at a national level comprising 9 Ministers as follows:

(a) 1 Minister from the Commonwealth;

(b) 1 Minister from each State (totalling 6 Ministers);

acting in accordance with its own procedures;

MCE directed review means a review conducted by the AEMC under Division 4 of Part 4;

MCE statement of policy principles means a statement of policy principles issued by the MCE under section 8;

Ministerial Gazette notice means a notice in the South Australian Government Gazette published by the South Australian Minister on the recommendation of the MCE;

Ministerial pilot metering determination means a determination made under section 118B;

Ministerial smart metering determination means—

(b) a Ministerial pilot metering determination;

Minister of a participating jurisdiction means a Minister who is a Minister of a participating jurisdiction within the meaning of section 6;

monitored market , for Part 3 Division 1A—see section 18A;

National Electricity Code means the code of conduct called the National Electricity Code approved, in accordance with section 6(1) of the old National Electricity Law, as the initial Code for the purposes of that Law, and as amended from time to time in accordance with its terms and the old National Electricity Law;

national electricity legislation means—

(a) the National Electricity (South Australia) Act 1996 of South Australia and Regulations in force under that Act; and

(b) the National Electricity (South Australia) Law ; and

(c) an Act of a participating jurisdiction (other than South Australia) that applies, as a law of that jurisdiction, any part of—

(i) the Regulations referred to in paragraph (a); or

(ii) the National Electricity Law set out in the Schedule to the Act referred to in paragraph (a); and

(d) the National Electricity Law set out in the Schedule to the Act referred to in paragraph (a) as applied as a law of a participating jurisdiction (other than South Australia); and

(e) the Regulations referred to in paragraph (a) as applied as a law of a participating jurisdiction (other than South Australia);

national electricity market means—

(a) the wholesale exchange operated and administered by AEMO under this Law and the Rules; and

(b) the national electricity system;

national electricity objective means the objective set out in section 7;

National Electricity Rules or Rules means—

(a) the initial National Electricity Rules; and

(ab) additional Minister initiated Rules; and

(b) Rules made by the AEMC under this Law, including Rules that amend or revoke—

(i) the initial National Electricity Rules or additional Minister initiated Rules; or

(ii) Rules made by it;

national electricity system means—

(a) the generating systems and other facilities owned, controlled or operated in the participating jurisdictions connected to the interconnected national electricity system; and

(b) the interconnected national electricity system; and

National Energy Retail Law means the National Energy Retail Law set out in the Schedule to the National Energy Retail Law (South Australia) Act 2011 of South Australia;

National Energy Retail Rules has the same meaning as in the National Energy Retail Law;

National Gas Law means the National Gas Law set out in the Schedule to the National Gas (South Australia) Act 2008 of South Australia;

National Gas Rules has the same meaning as in the National Gas Law;

national transmission grid means the transmission systems that form part of the interconnected national electricity system;

National Transmission Planner means AEMO acting in the performance of NTP functions;

negotiated network service has the meaning given by section 2C;

NEMMCO means National Electricity Market Management Company Limited (ACN 072 010 327);

Note—

NEMMCO becomes AEMO (without change of corporate identity). A reference to NEMMCO is a reference to AEMO before its change of name.

network agreement means the agreement required by section 50D(1);

network revenue or pricing determination means a distribution determination or a transmission determination;

network service provider means a Registered participant registered for the purposes of section 11(2) that owns, controls or operates a transmission system or distribution system that forms part of the interconnected national electricity system or that owns, controls or operates a regulated stand-alone power system;

network service provider performance report means a report prepared by the AER under section 28V;

network service user means a user who is provided with an electricity network service;

NTP functions means the functions described in section 49(2);

offence provision means a provision of this Law the breach or contravention of which by a person exposes that person to a finding of guilt by a court;

officer has the same meaning as officer has in relation to a corporation under section 9 of the Corporations Act 2001 of the Commonwealth;

old National Electricity Law means the National Electricity Law set out in the Schedule to the National Electricity (South Australia) Act 1996 of South Australia as in force from time to time before the commencement of section 12 of the National Electricity (South Australia) (New National Electricity Law) Amendment Act 2005 of South Australia;

participant derogation means a Rule made at the request of a person who is conferred a right, or on whom an obligation is imposed, under the Rules (including a Registered participant), or AEMO, that—

(a) exempts, in a specified case or class of cases, that person or a class of person of which that person is a member, or AEMO, from complying with a provision, or a part of a provision, of the Rules, including a jurisdictional derogation; or

(b) modifies or varies the application of a provision of the Rules, including a jurisdictional derogation, (with or without substitution of a provision of the Rules or a part of a provision of the Rules) to that person or class of person of which that person is a member, or AEMO;

participating jurisdiction means a jurisdiction that is a participating jurisdiction within the meaning of section 5;

power system security means the safe scheduling and dispatch, and operation and control, of the national electricity system (other than regulated stand-alone power systems);

prospective network service user means a person who seeks or wishes to be provided with an electricity network service;

protected information has the meaning given by section 54(1);

rate of return instrument —see section 18I(2);

Registered participant means a person who is registered as such by AEMO under this Law and the Rules or is registered as such by AEMO otherwise in accordance with the Rules;

regulated distribution system operator means an owner, controller or operator of a distribution system—

(a) who is a Registered participant; and

(b) whose revenue from, or prices that are charged for, the provision of electricity network services are regulated under a distribution determination;

regulated network service provider means—

(a) a regulated distribution system operator; or

(b) a regulated transmission system operator;

regulated stand-alone power system —see section 6B;

regulated transmission system operator means an owner, controller or operator of a transmission system—

(a) who is a Registered participant; and

(b) whose revenue from, or prices that are charged for, the provision of electricity network services are regulated under a transmission determination;

Regulations means the regulations made under Part 4 of the National Electricity (South Australia) Act 1996 of South Australia that apply as a law of this jurisdiction;

regulatory information instrument means a general regulatory information order or a regulatory information notice;

regulatory information notice has the meaning given by section 28D;

regulatory obligation or requirement has the meaning given by section 2D;

regulatory payment has the meaning given by section 2E;

relevant agreement , for Part 3 Division 1A—see section 18A;

relevant court means any court of this jurisdiction;

relevant regulatory decision means—

(a) a network revenue or pricing determination that specifies a period to be a regulatory period for the purposes of the determination; or

(b) any other determination (including a distribution determination or transmission determination) or decision of the AER that is prescribed by the Regulations to be a relevant regulatory decision,

but does not include a decision of the AER made under Part 3 Division 6;

reliability obligation civil penalty provision —see section 2AA(1a);

reliability obligations means the obligations that apply to a liable entity under sections 14P(1) and (3) and 14R(2);

Reliability Panel means the panel of persons established by the AEMC under section 38;

retail customer means a person to whom electricity is sold by a retailer, and supplied in respect of connection points, for the premises of the person, and includes a person (or a person who is of a class of persons) prescribed by the Rules for the purposes of this definition;

retailer means a person who is the holder of a retailer authorisation issued under the National Energy Retail Law in respect of the sale of electricity;

Retailer Reliability Obligation means—

(a) Part 2A of this Law; and

(b) the provisions of the Rules that relate to Part 2A of this Law;

revenue and pricing principles means the principles set out in section 7A;

Rule dispute means a dispute between persons in relation to a matter or thing arising under the Rules in respect of which the Rules provide that the dispute must be resolved in accordance with the Rules;

shared network capability service means a service described in section 50D(1) as a shared network capability service;

shared transmission service means a service classified under the Rules as a shared transmission service;

smart meter amendments means the amendments to this Law made by section 5 of the National Electricity (South Australia) (Smart Meters) Amendment Act 2009 of South Australia;

statutory functions , in relation to AEMO, means functions or powers conferred under—

(a) this Law or the Rules; or

(b) the National Gas Law, the National Gas Rules, or related subordinate legislation;

superseded jurisdictional rules means—

(a) legislation (including subordinate legislation) of a participating jurisdiction regulating the electricity industry in that jurisdiction that—

(i) was in force immediately before the changeover date; and

(ii) is superseded by the AEMO amendments; and

(b) a licence condition governing the activities of the licensee in, or in relation to, an electricity market in a participating jurisdiction—

(i) in force immediately before the changeover date; and

(ii) superseded by the AEMO amendments; and

(c) a guideline, code, standard or other instrument governing the operation or regulation of an electricity market in a participating jurisdiction—

(i) made or issued by the jurisdictional regulator; and

(ii) in force immediately before the changeover date; and

(iii) superseded by the AEMO amendments;

Territory means the Australian Capital Territory or the Northern Territory;

transmission determination means a determination of the AER under the Rules that regulates any 1 or more of the following:

(a) the terms and conditions for the provision of electricity network services that are the subject of economic regulation under the Rules including the prices an owner, controller or operator of a transmission system charges or may charge for those services;

(b) the revenue an owner, controller or operator of a transmission system earns or may earn from the provision by that owner, controller or operator of electricity network services that are the subject of economic regulation under the Rules;

transmission reliability standard means a standard imposed by or under the Rules or jurisdictional electricity legislation relating to the reliability or performance of a transmission system;

transmission service standard means a standard relating to the standard of services provided by a regulated transmission system operator by means of, or in connection with, a transmission system imposed—

(a) by or under jurisdictional electricity legislation; or

(b) by the AER in accordance with the Rules;

transmission system means the apparatus, electric lines, equipment, plant and buildings used to convey or control the conveyance of electricity that the Rules specify as, or forming part of, a transmission system;

transmission system safety duty means a duty or requirement under an Act of a participating jurisdiction, or any instrument made or issued under or for the purposes of that Act, relating to—

(a) the safe transmission of electricity in that jurisdiction; or

(b) the safe operation of a transmission system in that jurisdiction;

trial project means a project—

(a) that—

(i) the AER is satisfied is genuinely innovative taking into account the innovative trial principles (in relation to a trial waiver for a trial project); or

(ii) the AEMC is satisfied is genuinely innovative taking into account the innovative trial principles (in relation to a trial Rule for the purposes of a trial project); and

(b) that tests an approach in relation to the supply of, or demand for, electricity;

trial Rule —see section 87;

trial waiver —see section 18ZL;

Tribunal means the Australian Competition Tribunal referred to in the Competition and Consumer Act 2010 of the Commonwealth and includes a member of the Tribunal or a Division of the Tribunal performing functions of the Tribunal;

VENCorp means the Victorian Energy Networks Corporation continued under Part 8 of the Gas Industry Act 2001 of Victoria until the AEMO amendments came into force;

wholesale electricity market means any wholesale market for electricity regulated under this Law and the Rules.

(2) A reference in this Law to an end user includes a reference to a prospective end user.

2A—Meaning of access dispute

An access dispute is—

(a) a dispute between a network service user (or prospective network service user) and a network service provider about an aspect of access to an electricity network service specified by the Rules to be an aspect to which Part 10 applies; or

(b) without limiting paragraph (a)—a dispute between a retail customer (or other person specified by the Rules) and a regulated distribution system operator about an aspect of access to a connection service specified by the Rules to be an aspect to which Part 10 applies.

2AA—Meaning of civil penalty provision and conduct provision

(1) A civil penalty provision is—

(a) a provision of this Law specified in the Table at the foot of this subsection; or

(ba) a reliability obligation civil penalty provision; or

(c) a provision of this Law (other than an offence provision) or the Rules that is prescribed by the Regulations to be a civil penalty provision.

Table

Provision

Section heading

Section 11(1), (2), (3) and (4)

Electricity market activities in this jurisdiction

Section 14A

Regulated transmission system operator must comply with transmission determination

Section 14B

Regulated distribution system operator must comply with distribution determination

Section 14P(1) and (3)

Obligation to report net contract position

Section 18ZC(1) and (2)

Obligation of regulated entities to keep records

Section 18ZD

Obligation of regulated entities to provide information and data about compliance

Section 18ZF(1) and (3)

Compliance audits by regulated entities

Section 28N

Compliance with regulatory information notice that is served

Section 28O

Compliance with general regulatory information order

Section 50D(1)

Network agreement

Section 50F(1), (4) and (5)

Augmentation

Section 53C(3) and (4)

Compliance with market information instrument

Section 136

Compliance with access determination

Section 157(1)

Preventing or hindering access

Provision	Section heading
Section 11(1), (2), (3) and (4)	Electricity market activities in this jurisdiction
Section 14A	Regulated transmission system operator must comply with transmission determination
Section 14B	Regulated distribution system operator must comply with distribution determination
Section 14P(1) and (3)	Obligation to report net contract position
Section 18ZC(1) and (2)	Obligation of regulated entities to keep records
Section 18ZD	Obligation of regulated entities to provide information and data about compliance
Section 18ZF(1) and (3)	Compliance audits by regulated entities
Section 28N	Compliance with regulatory information notice that is served
Section 28O	Compliance with general regulatory information order
Section 50D(1)	Network agreement
Section 50F(1), (4) and (5)	Augmentation
Section 53C(3) and (4)	Compliance with market information instrument
Section 136	Compliance with access determination
Section 157(1)	Preventing or hindering access

(1a) A reliability obligation civil penalty provision is section 14R(2).

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

2AB—Civil penalty amounts for breaches of civil penalty provisions

(1) Subject to this section, the civil penalty for a breach of a civil penalty provision is—

(a) in the case of a breach of a civil penalty provision, other than a provision prescribed under paragraph (b), (c) or (d)—

(i) if the breach is by a natural person—

(A) an amount not exceeding $33 900; plus

(B) an amount not exceeding $3 390 for every day during which the breach continues;

(ii) if the breach is by a body corporate—

(A) an amount not exceeding $170 000; plus

(B) an amount not exceeding $17 000 for every day during which the breach continues; or

(b) in the case of a breach of a civil penalty provision prescribed by the Regulations for the purposes of this paragraph—

(i) if the breach is by a natural person—

(A) an amount not exceeding $287 000; plus

(B) an amount not exceeding $14 400 for every day during which the breach continues;

(ii) if the breach is by a body corporate—

(A) an amount not exceeding $1 435 000; plus

(B) an amount not exceeding $71 800 for every day during which the breach continues; or

(c) in the case of a breach of a civil penalty provision prescribed by the Regulations for the purposes of this paragraph—

(i) if the breach is by a natural person—an amount not exceeding $500 000;

(ii) if the breach is by a body corporate—an amount not exceeding the greater of the following:

(A) $10 000 000;

(B) if the Court can determine the value of any benefit reasonably attributable to the breach of the civil penalty provision that the body corporate, and any body corporate related to the body corporate, has obtained, directly or indirectly—3 times the value of that benefit;

(C) if the Court cannot determine the value of the benefit—10% of the annual turnover of the body corporate during the 12-month period ending at the end of the month in which the body corporate breached, or began breaching, the civil penalty provision; or

(d) in the case of a breach of a reliability obligation civil penalty provision—

(i) if the breach is by a natural person—an amount not exceeding $1 435 000;

(ii) if the breach is by a body corporate—

(A) an amount not exceeding $1 435 000 for a breach that relates to a reliability gap period; or

(B) an amount that applies under paragraph (c)(ii), as if the reliability obligation civil penalty provision were prescribed by the Regulations for the purposes of paragraph (c), for a breach that relates to a second or subsequent reliability gap period.

Note—

See section 67A, which deals with conduct that constitutes a breach of a reliability obligation civil penalty provision on 2 or more occasions in relation to the same reliability gap period.

Note—

See Schedule 2 clause 37A, which provides for the amounts specified in this subsection to be adjusted every 3 years to reflect movements in the consumer price index. The adjusted amounts are published on the AER's website.

(2) Subsection (1)(c)(ii)(B) or (C) will only apply in a particular case (including by operation of subsection (1)(d)(ii)(B)) if the AER, in applying for an order under section 61(2)(a), requests that those provisions be applied in that particular case.

2B—Meaning of direct control network service

A direct control network service is an electricity network service—

(a) the Rules specify as a service the price for which, or the revenue to be earned from which, must be regulated under a distribution determination or transmission determination; or

(b) if the Rules do not do so, the AER specifies, in a distribution determination or transmission determination, as a service the price for which, or the revenue to be earned from which, must be regulated under the distribution determination or transmission determination.

2C—Meaning of negotiated network service

A negotiated network service is an electricity network service—

(a) that is not a direct control network service; and

(b) that—

(i) the Rules specify as a negotiated network service; or

(ii) if the Rules do not do so, the AER specifies as a negotiated network service in a distribution determination or transmission determination.

2D—Meaning of regulatory obligation or requirement

(1) A regulatory obligation or requirement is—

(a) in relation to the provision of an electricity network service by a regulated network service provider—

(i) a distribution system safety duty or transmission system safety duty; or

(ii) a distribution reliability standard or transmission reliability standard; or

(iii) a distribution service standard or transmission service standard; or

(b) an obligation or requirement under—

(i) this Law or Rules; or

(ia) the National Energy Retail Law or the National Energy Retail Rules; or

(ii) an Act of a participating jurisdiction, or any instrument made or issued under or for the purposes of that Act, that levies or imposes a tax or other levy that is payable by a regulated network service provider; or

(iii) an Act of a participating jurisdiction, or any instrument made or issued under or for the purposes of that Act, that regulates the use of land in a participating jurisdiction by a regulated network service provider; or

(iv) an Act of a participating jurisdiction or any instrument made or issued under or for the purposes of that Act that relates to the protection of the environment; or

(v) an Act of a participating jurisdiction, or any instrument made or issued under or for the purposes of that Act (other than national electricity legislation or an Act of a participating jurisdiction or an Act or instrument referred to in subparagraphs (ii) to (iv)), that materially affects the provision, by a regulated network service provider, of electricity network services that are the subject of a distribution determination or transmission determination.

(2) A regulatory obligation or requirement does not include an obligation or requirement to pay a fine, penalty or compensation—

(a) for a breach of—

(i) a distribution system safety duty or transmission system safety duty; or

(ii) a distribution reliability standard or transmission reliability standard; or

(iii) a distribution service standard or transmission service standard; or

(b) under this Law or the Rules, the National Energy Retail Law or the National Energy Retail Rules or an Act or an instrument referred to in subsection (1)(b)(ii) to (v).

Notes—

1 See also section 7A(2)(b).

2 The RoLR cost recovery scheme is dealt with under Part 6 of the National Energy Retail Law.

2E—Meaning of regulatory payment

A regulatory payment is a sum that a regulated network service provider has been required or allowed to pay to a network service user or an end user for a breach of, as the case requires—

(a) a distribution reliability standard or transmission reliability standard; or

(b) a distribution service standard or transmission service standard,

because it was efficient for the regulated network service provider (in terms of the provider's overall business) to pay that sum.

Note—

See also sections 48 and 108.

32—AEMC must have regard to national electricity objective

In performing or exercising any function or power under this Law, the Regulations or the Rules, the AEMC must have regard to the national electricity objective.

32A—Targets statement for greenhouse gas emissions targets

(1) The AEMC must prepare and maintain a document (the targets statement ) stating the targets set by a participating jurisdiction mentioned in section 7(c).

(2) If the MCE or a Minister of a participating jurisdiction gives a written direction to the AEMC to include a target in, or remove a target from, the targets statement, the AEMC must comply with the direction.

(3) A Minister may give a written direction under subsection (2) only in relation to a target set by the Minister's participating jurisdiction.

(4) The AEMC must publish on its website—

(a) the targets statement; and

(b) each direction given under subsection (2).

(5) In having regard to the national electricity objective under this Law, the Regulations or the Rules with respect to the matters mentioned in section 7(c), a person or body must consider, as a minimum, the targets stated in the targets statement.

33—AEMC must have regard to MCE statements of policy principles in relation to Rule making and reviews

The AEMC must have regard to any relevant MCE statement of policy principles—

(a) in making a Rule; or

(b) in conducting a review under section 45.

Division 2—Rule making functions and powers of the AEMC

34—Rule making powers

(1) Subject to this Division, the AEMC, in accordance with this Law and the Regulations, may make Rules, to be known, collectively, as the "National Electricity Rules", for or with respect to—

(a) regulating—

(i) the operation of the national electricity market;

(ii) the operation of the national electricity system for the purposes of the safety, security and reliability of that system;

(iii) the activities of persons (including Registered participants) participating in the national electricity market or involved in the operation of the national electricity system;

(iv) the provision of connection services to retail customers; and

(aa) facilitating and supporting the provision of services to retail customers; and

(ab) any matter or thing related to, or necessary or expedient for, the purposes of the Retailer Reliability Obligation; and

(ac) any matter or thing related to, or necessary or expedient for, the purposes of a trial Rule, trial project or trial waiver; and

(ad) any matter or thing related to, or necessary or expedient for, the purposes of orderly exit management under Part 8AA; and

(b) any matter or thing contemplated by this Law, or is necessary or expedient for the purposes of this Law.

Note—

The procedure for the making of a Rule by the AEMC is set out in Division 3 of Part 7.

(2) Without limiting subsection (1), the AEMC, in accordance with this Law and the Regulations, may make Rules for or with respect to any matter or thing specified in Schedule 1 to this Law.

(3) Rules made by the AEMC in accordance with this Law and the Regulations may—

(a) be of general or limited application;

(b) vary according to the persons, times, places or circumstances to which they are expressed to apply;

(i) the AER, the AEMC, AEMO or a jurisdictional regulator; or

(ii) the Reliability Panel or any other panel or committee established by the AEMC; or

(iii) any other body established, or person appointed, in accordance with the Rules;

(d) confer rights or impose obligations on any person or a class of person (other than the AER, the AEMC or a jurisdictional regulator);

(e) confer a function on the AER, the AEMC, AEMO or a jurisdictional regulator to make, prepare, develop or issue guidelines, tests, standards, procedures or any other document (however described) in accordance with the Rules, including guidelines, tests, standards, procedures or any other document (however described) that leave any matter or thing to be determined by the AER, the AEMC, AEMO or jurisdictional regulator;

(f) empower or require any person (other than a person referred to in paragraph (e)) or body to make or issue guidelines, tests, standards, procedures or any other document (however described) in accordance with the Rules;

(fa) provide for procedures governing the operation of the national electricity market and the sale and supply of electricity to retail customers;

(g) apply, adopt or incorporate wholly or partially, or as amended by the Rules, the provisions of any standard, rule, specification, method or document (however described) formulated, issued, prescribed or published by any person, authority or body whether—

(i) as formulated, issued, prescribed or published at the time the Rules are made or at any time before the Rules are made; or

(ii) as amended from time to time;

(h) confer a power of direction on the AER, the AEMC, AEMO or a jurisdictional regulator to require a person conferred a right or on whom an obligation is imposed under the Rules (including a Registered participant) to comply with—

(i) a guideline, test, standard, procedure or other document (however described) referred to in paragraph (e), (f) or (fa); or

(ii) a standard, rule, specification, method or document (however described) referred to in paragraph (g);

(i) if this section authorises or requires Rules that regulate any matter or thing, prohibit that matter or thing or any aspect of that matter of thing;

(j) provide for the review of, or a right of appeal against, a decision or determination made under the Rules and for that purpose, confer jurisdiction on the Court;

(k) require a form prescribed by or under the Rules, or information or documents included in, attached to or given with the form, to be verified by statutory declaration;

(l) in a specified case or class of case, exempt—

(i) AEMO; or

(ii) a Registered participant or class of Registered participant; or

(iii) any other person or body performing or exercising a function or power, or conferred a right, or on whom an obligation is imposed, under the Rules or a class of any such person or body,

from complying with a provision, or a part of a provision, of the Rules;

(m) provide for the modification or variation of a provision of the Rules (with or without substitution of a provision of the Rules or a part of a provision of the Rules) as it applies to—

(i) AEMO; or

(ii) a Registered participant or class of Registered participant; or

(iii) any other person or body performing or exercising a function or power, or conferred a right, or on whom an obligation is imposed, under the Rules or a class of any such person or body;

(n) confer an immunity on, or limit the liability of, any person or body performing or exercising a function or power, or conferred a right, or on whom an obligation is imposed, under the Rules;

(o) require a person or body performing or exercising a function or power, or conferred a right, or on whom an obligation is imposed, under the Rules to indemnify another such person or body;

(p) contain provisions of a savings or transitional nature consequent on the amendment or revocation of a Rule.

35—Rules relating to MCE or Ministers of participating jurisdictions require MCE consent

The AEMC must not, without the consent of the MCE, make a Rule that confers a right or function, or imposes an obligation, on the MCE or a Minister of a participating jurisdiction.

Note—

The term "function" is defined in clause 10 of Schedule 2 to this Law to include "duty".

36—AEMC must not make Rules that create criminal offences or impose civil penalties for breaches

The AEMC must not make a Rule that—

(a) creates an offence for a breach of a provision of the Rules; or

(b) provides for a criminal penalty or civil penalty for a breach of a provision of the Rules.

37—Documents etc applied, adopted and incorporated by Rules to be publicly available

(1) The AEMC must make publicly available—

(a) every standard, rule, specification, method or document (however described) formulated, issued, prescribed or published by any person, authority or body that is applied, adopted or incorporated by a Rule; and

(b) if a standard, rule, specification, method or document (however described) formulated, issued, prescribed or published by any person, authority or body is applied, adopted or incorporated by a Rule as amended from time to time—any amendment to that standard, rule, specification, method or document.

(2) For the purposes of subsection (1), the AEMC makes a standard, rule, specification, method or document (however described) formulated, issued, prescribed or published by any person, authority or body applied, adopted or incorporated by any Rule publicly available if the AEMC—

(a) publishes the standard, rule, specification, method or document on the AEMC's website; or

(b) specifies a place from which the standard, rule, specification, method or document may be obtained or purchased (as the case requires).

Division 3—Committees, panels and working groups of the AEMC

38—The Reliability Panel

(1) The AEMC must establish a panel of persons to be known as the Reliability Panel, the composition of which must be in accordance with the Rules.

(2) The functions and powers of the Reliability Panel are—

(a) to monitor, review and report on, in accordance with the Rules, the safety, security and reliability of the national electricity system; and

(b) at the request of the AEMC, to provide advice in relation to the safety, security and reliability of the national electricity system; and

(3) At the completion of a review, the Reliability Panel must give a report to the AEMC.

(4) If requested to do so by the AEMC, the Reliability Panel must provide advice to the AEMC in relation to the safety, security and reliability of the national electricity system.

39—Establishment of committees and panels (other than the Reliability Panel) and working groups

The AEMC may establish committees and panels (other than the Reliability Panel) and working groups to—

(a) provide advice on specified aspects of the AEMC's functions; or

(b) undertake any other activity in relation to the AEMC's functions as is specified by the AEMC.

Division 4—MCE directed reviews

41—MCE directions

(1) The MCE may give a written direction to the AEMC that the AEMC conduct a review into—

(a) any matter relating to the national electricity market; or

(ab) any matter relating to any other market for electricity; or

(b) the operation and effectiveness of the Rules; or

(d) the effectiveness of competition in a market for electricity for the purpose of giving advice about whether to retain, remove or reintroduce price controls on prices for retail electricity services.

(2) A direction given to the AEMC under this section is binding on the AEMC and must be complied with despite anything to the contrary in the Rules.

(3) A direction given under this section must be published in the South Australian Government Gazette .

(4) The AEMC must cause a direction given under this section to be published on its website.

42—Terms of reference

(1) The terms of reference of a MCE directed review will be as specified in the direction given by the MCE.

Example—

The terms of reference may require a MCE directed review to be conducted—

(a) about a specific matter within a specified time; or

(b) whenever a specified event occurs; or

(2) Without limiting subsection (1), the MCE may in its direction to the AEMC do one or more of the following—

(a) require the AEMC to give a report on a MCE directed review to the MCE within a specified period;

(b) require the AEMC to make the report on a MCE directed review publicly available or available to specified persons or bodies;

(c) require the AEMC to make a draft report publicly available or available to specified persons or bodies during a MCE directed review;

(d) require the AEMC to consider specified matters in the conduct of a MCE directed review;

(e) require the AEMC to have specified objectives in the conduct of a MCE directed review which need not be limited by the national electricity objective;

(ea) require the AEMC to assess a particular matter in relation to services provided in a market for electricity against specified criteria or a specified methodology;

(eb) require the AEMC—

(i) to assess a particular matter in relation to services provided in a market for electricity; and

(ii) to develop appropriate and relevant criteria, or an appropriate and relevant methodology, for the purpose of the required assessment;

(f) give the AEMC other specific directions in respect of the conduct of a MCE directed review.

43—Notice of MCE directed review

(1) The AEMC must publish notice of a MCE directed review on its website.

(2) The AEMC must publish a further such notice if a term of reference or a requirement or direction relating to the MCE directed review is varied.

44—Conduct of MCE directed review

Subject to any requirement or direction of the MCE, a MCE directed review—

(a) may be conducted in such manner as the AEMC considers appropriate; and

(b) may (but need not) involve public hearings.

Division 5—Other reviews

45—Reviews by AEMC

(1) The AEMC may conduct a review into—

(a) the operation and effectiveness of the Rules; or

(b) any matter relating to the Rules.

(2) A review—

(a) may be conducted in such manner as the AEMC considers appropriate; and

(b) may (but need not) involve public hearings.

(3) During the course of a review, the AEMC may—

(a) consult with any person or body that it considers appropriate;

(b) establish working groups to assist it in relation to any aspect, or any matter or thing that is the subject, of the review;

(c) commission reports by other persons on its behalf on any aspect, or matter or thing that is the subject, of the review;

(d) publish discussion papers or draft reports.

(4) At the completion of a review, the AEMC must—

(a) give a copy of the report to the MCE; and

(b) publish a report or a version of a report from which confidential information has been omitted in accordance with section 48.

Division 6—Miscellaneous

46—AEMC must publish and make available up to date versions of Rules

The AEMC must, at all times—

(a) maintain, on its website, a copy of the National Electricity Rules, as in force from time to time; and

(b) make copies of the National Electricity Rules, as in force from time to time, available to the public for inspection at its offices during business hours.

47—Fees

(1) The AEMC may charge a fee specified, or a fee calculated in accordance with a formula or methodology specified, in the Regulations for services provided by it in performing or exercising any of its functions or powers under this Law, the Regulations or the Rules.

(2) The fee must not be such as to amount to taxation.

48—Confidentiality of information

(1) Information provided to the AEMC for the purposes of a MCE directed review or a review conducted by the AEMC under section 45 is confidential information for the purposes of Division 4 or 5 if—

(a) the person who provides it claims, when providing it to the AEMC, that it is confidential information; and

(b) the AEMC decides that the information is confidential information.

(2) Nothing prevents the disclosure of confidential information in a report to the MCE or a Minister of a participating jurisdiction under Division 4 or 5, but the AEMC must ensure that the information is identified as such in the report.

(3) If the AEMC decides that information provided to it for the purposes of a MCE directed review, or a review conducted by the AEMC under section 45, is confidential information, the AEMC, the MCE or a Minister of a participating jurisdiction may only make public a version of the report from which the information has been omitted.

(4) If information is omitted from a published version of a report as being confidential information, a note to that effect must be included in the report at the place in the report from which the information is omitted.

Note—

See also section 31 of this Law and section 24 of the Australian Energy Market Commission Establishment Act 2004 of South Australia.

Part 5—Role of AEMO under National Electricity Law

Division 1—General

49—AEMO's statutory functions

(1) The following functions are conferred on AEMO:

(a) to operate and administer the wholesale exchange;

(b) to promote the development and improve the effectiveness of the operation and administration of the wholesale exchange;

(d) to exempt certain persons from being registered as Registered participants;

(e) to maintain and improve power system security;

(f) to facilitate retail customer transfer, metering and retail competition;

(fa) any functions of a data holder under the Competition and Consumer Act 2010 of the Commonwealth for CDR data relating to a designated energy sector;

(g) for an adoptive jurisdiction—the additional advisory functions or declared network functions (as the case requires);

(h) any functions conferred by jurisdictional electricity legislation or an application Act;

(i) any other functions conferred under this Law or the Rules.

Notes—

1 AEMO has additional functions under its Constitution.

2 It should be noted that AEMO's statutory functions include its functions under the National Gas Law, the National Gas Rules and related subordinate legislation: See definition of statutory functions in section 2.

3 AEMO also has responsibilities, under Part 4 of the Australian Energy Market Commission Establishment Act 2004 of South Australia, related to administrative costs associated with the work of the Consumer Advocacy Panel.

4 AEMO has additional functions and powers under the National Energy Retail Law and the National Energy Retail Rules.

(2) In its role as National Transmission Planner, AEMO has the following functions:

(a) to prepare, maintain and publish a plan for the development of the national transmission grid (the National Transmission Network Development Plan ) in accordance with the Rules;

(b) to establish and maintain a database of information relevant to planning the development of the national transmission grid and to make the database available to the public;

(c) to keep the national transmission grid under review and provide advice on the development of the grid or projects that could affect the grid;

(d) to provide a national strategic perspective for transmission planning and coordination;

(e) any other functions conferred on AEMO under this Law or the Rules in its capacity as National Transmission Planner.

(3) AEMO must, in carrying out functions referred to in this section, have regard to the national electricity objective.

49A—AEMO's power to carry out statutory functions

AEMO has the power to do all things necessary or convenient for or in connection with its statutory functions.

49B—Delegation

(1) Subject to subsection (2) and the Rules, AEMO may delegate any of its functions or powers under this Law or the Rules to—

(a) a director, officer or employee of AEMO; or

(b) a member of a committee established by AEMO.

(2) However, a function or power classified by the Regulations as non-delegable cannot be delegated.

(3) A delegate may, subject to AEMO's directions, subdelegate a delegated function or power to a director, officer or employee of AEMO.

(4) A delegate (or subdelegate) must comply with any direction given by AEMO that is relevant to the exercise of the delegated functions or powers.

Division 2—AEMO's adoptive jurisdiction functions

Subdivision 1—Preliminary

50—Application of this Division

(1) Subdivision 2 applies to, and in relation to, a participating jurisdiction if (and only if) the application Act of that jurisdiction, or an instrument made under that Act, declares that it does so apply.

(2) Subdivision 3 applies to, and in relation to, a participating jurisdiction if (and only if) the application Act of that jurisdiction, or an instrument made under that Act, declares that it does so apply.

(3) A Rule or other form of subordinate legislation made for the purposes of Subdivision 2 or 3 applies to and in relation to a participating jurisdiction if (and only if) the relevant Subdivision applies to and in relation to that jurisdiction.

50A—AEMO to account to relevant Minister for performance of adoptive functions

(1) AEMO must, at the written request of the Minister of an adoptive jurisdiction, provide information about the performance of its adoptive functions with respect to that jurisdiction.

(2) Protected information provided in response to a request under subsection (1) must be identified as such by AEMO at the time of providing the information.

(3) No fee is to be charged for the provision of information under this section.

Subdivision 2—AEMO's additional advisory functions

50B—Additional advisory functions

(1) AEMO's additional advisory functions are as follows:

(a) to prepare and publish a report on an adoptive jurisdiction's declared power system;

(b) to report to the Minister of an adoptive jurisdiction on matters relevant to the future capacity and reliability of the declared power system.

(2) The additional advisory functions are to be exercised as follows:

(a) a report on an adoptive jurisdiction's declared power system is to be prepared and published under subsection (1)(a) at the request of the Minister of the relevant jurisdiction;

(b) a report is to be provided under subsection (1)(b) at the request of the Minister of the relevant jurisdiction or on AEMO's own initiative.

(3) A report under subsection (1)(a) must include an assessment of the performance of connections between transmission systems and distribution systems in the relevant jurisdiction and the need (if any) for new connections.

(4) A request under subsection (1)(a) or (1)(b) may be for a single report or for reports to be made on an annual or other periodic basis.

Subdivision 3—AEMO's declared network functions

50C—AEMO's declared network functions

(1) AEMO's declared network functions are as follows:

(a) to plan, authorise, contract for, and direct, augmentation of the declared shared network;

(b) to provide information about the planning processes for augmentation of the declared shared network;

(c) to provide information and other services to facilitate decisions for investment and the use of resources in the adoptive jurisdiction's electricity industry;

(d) to provide shared transmission services by means of, or in connection with, the declared shared network;

(e) any other functions, related to the declared transmission system or electricity network services provided by means of or in connection with the declared transmission system, conferred on it under this Law or the Rules;

(f) any other functions, related to the declared transmission system or electricity network services provided by means of or in connection with the declared transmission system, conferred on it under a law of the adoptive jurisdiction.

(2) AEMO—

(a) is not limited in planning augmentation of the declared shared network to its role as National Transmission Planner; and

(b) may make or issue market information instruments as may be necessary or expedient for that or any other declared network function.

50D—Network agreement

(1) A declared transmission system operator must have an agreement (a network agreement ) with AEMO—

(a) for the provision of electricity network services ( shared network capability services ) for the performance of AEMO's declared network functions; and

(b) containing such other provisions as may be required by the Rules.

Note—

Subsection (1) is a civil penalty provision.

(2) A declared transmission system operator or a prospective declared transmission system operator must, if asked to do so by AEMO, offer to enter into a network agreement with AEMO subject to and in accordance with the Rules.

(3) The offer must be submitted within 20 business days after the date of the request.

(4) The terms and conditions of a network agreement under this section are to be regarded as protected information but are liable to disclosure under the provisions of Division 6 that allow for the disclosure of protected information.

Exception—

Insofar as the terms and conditions of a network agreement can be inferred from a determination to be published on AEMO's website under section 50H(6), they are not to be regarded as protected information.

(5) The Rules may require or regulate the provision of shared network capability services.

(6) If there is any inconsistency between a network agreement and a transmission determination as to the price of electricity network services to be provided by means of, or in connection with, the declared transmission system, the transmission determination prevails.

(7) In this section—

prospective declared transmission system operator means a person who is to carry out an augmentation of the declared transmission system and who may therefore become a declared transmission system operator on completion of the augmentation.

50E—Connection agreements

(1) A person to whom this section applies must have connection agreements as follows:

(a) an agreement with AEMO for the provision of shared transmission services; and

(b) an agreement with the relevant declared transmission system operator for the provision of connection services as defined in the Rules.

(2) An agreement required by this section must be in accordance with the Rules.

(3) If—

(a) a person to whom this section applies (the applicant ) wants to connect to a declared shared network; but

(b) the fault levels at the proposed connection point would, if the connection were allowed, be likely to exceed the limits fixed under the Rules,

AEMO may, as a condition of entering into a connection agreement with the applicant, require the applicant to make a contribution to the cost of carrying out the augmentation to the declared shared network necessary to reduce fault levels to an acceptable level.

(4) This section applies to each of the following:

(a) a network service provider for a distribution system situated in the adoptive jurisdiction;

(b) another network service user who is provided with electricity network services by means of, or in connection with, the declared shared network.

50F—Augmentation

(1) A declared transmission system operator must not augment the declared shared network, or any part of the declared shared network, unless—

(a) AEMO authorises or directs the operator to carry out the augmentation; or

(b) the operator wins a competitive tender conducted by AEMO to carry out the augmentation; or

(2) In deciding whether a proposed augmentation to the declared shared network should proceed, AEMO—

(a) must undertake a cost benefit analysis; and

(b) must apply a probabilistic (as distinct from a deterministic) approach to determining the benefit of an augmentation unless—

(i) a probabilistic approach will not produce a materially different result; or

(ii) it is not reasonably practicable to use a probabilistic approach; or

(iii) a probabilistic approach is, for some other reason, inappropriate.

Example—

Probabilistic planning is not relevant to negotiated network services. Hence, if the services to be provided as a result of the augmentation are negotiated network services, a probabilistic approach would be inappropriate.

(3) Subject to the Rules, AEMO must conduct a competitive tender to determine who will carry out an augmentation to a declared shared network.

(4) A declared transmission system operator—

(a) must do anything required by the Rules to facilitate the planning, construction or operation of an augmentation; and

(b) must, at AEMO's request, do anything else reasonably required by AEMO to facilitate the planning, construction or operation of an augmentation.

Example—

A declared transmission system operator will be required by the Rules to enter into an augmentation connection agreement with the person responsible for operation of an augmentation to connect the augmentation with the declared shared network.

(5) A declared transmission system operator must not engage in conduct that has the effect of preventing or hindering the planning, construction or operation of an augmentation.

Note—

Subsections (1), (4) and (5) are civil penalty provisions: See the definition of civil penalty provision in section 2AA(1).

50G—AEMO to have qualified exemption for performing statutory functions

(1) For performing statutory functions, AEMO—

(a) is not required to be registered as a Registered participant; and

(b) is not subject to the provisions of the Rules applicable to network service providers.

(2) However—

(a) a Rule applicable to a Registered participant or a network service provider extends (with or without modification) to AEMO if provision is made for its application (or modified application) to AEMO by the Rules; and

(b) provision may be made for extending the application of such a Rule to AEMO even though AEMO does not own, control or operate the declared shared network.

50H—Resolution of dispute arising from attempt to negotiate a network agreement or augmentation connection agreement

(1) The AER may, on application by AEMO or 1 or more declared transmission system operators, make a determination to resolve a dispute arising from an attempt to negotiate—

(a) a network agreement or an augmentation connection agreement; or

(b) an amendment to a network agreement or an augmentation connection agreement.

(2) The determination may determine the terms and conditions of the agreement or the amendment.

(3) If the AER determines the terms and conditions of an agreement or an amendment, an agreement is taken to arise between the interested parties, or the agreement between the interested parties is taken to be amended, in accordance with the AER's determination.

(4) A determination may only be made under this section if—

(a) the AER is satisfied that the applicant has made a reasonable, but unsuccessful, attempt to negotiate the agreement or amendment; and

(b) the AER has given AEMO and all declared transmission system operators that are to be affected by the determination an opportunity to make representations about the terms of the proposed determination.

(5) A determination under this section takes effect on a date specified in the determination.

(6) A determination under this section must be published on AEMO's website.

(7) In this section, a reference to a declared transmission system operator extends to a prospective declared transmission system operator within the meaning of section 50D(7).

50J—General principles governing determinations

(1) A determination under this Subdivision must be compatible with the proper performance of AEMO's declared network functions.

(2) In determining a dispute about a network agreement or an augmentation connection agreement, or an amendment to a network agreement or an augmentation connection agreement, the AER must have regard to the Rules and the allocation of functions, powers and duties between AEMO and the declared transmission system operator, so far as relevant to—

(a) the allocation of risk under such an agreement; or

(b) the provision of shared network capability services; or

(3) A determination cannot alter the allocation of risk under an existing network agreement unless AEMO agrees.

(4) The provisions applicable to the determination of an access dispute apply to a determination by the AER under this Subdivision with the following changes:

(a) section 131(1)(c), section 131(2), section 132 and section 133 do not apply; and

(b) any further changes necessary to adapt those provisions to the determination of a dispute under this Division.

(5) In this section, a reference to a declared transmission system operator extends to a prospective declared transmission system operator within the meaning of section 50D(7).

Division 3—Information etc to be provided to Ministers

51—Ministerial request

(1) The MCE or a Minister of a participating jurisdiction may ask AEMO for information, a report or other services.

(2) The request may be accompanied by a written statement of the purpose for which the information, report or other services are sought.

51A—Compliance with request

(1) AEMO must comply with a request under this Division.

(2) However, if compliance with the request would involve disclosure of protected information, AEMO may only provide the information if its disclosure is authorised under this Law or the Rules.

Note—

The Minister of an adoptive jurisdiction may be entitled to certain protected information under section 50A.

51B—Quarterly report

(1) AEMO must report to the MCE in each quarter on its work under this Division for the previous quarter.

(2) The report must—

(a) summarise each request received in the relevant quarter; and

(b) state by whom each request was made.

Division 4—Fees and charges

52—AEMO fees and charges

(1) AEMO may—

(a) determine fees and charges for services provided by it under this Law or the Rules; and

(b) charge for and recover the fees and charges in accordance with this Law and the Rules.

(2) The fees and charges for a service are to be determined on a non-profit basis that—

(a) provides for full recovery of the costs of providing the service; and

(b) does not amount to taxation; and

(3) Exact equivalence is not required between the costs of providing a service and the revenue derived from providing the service in a particular accounting period if there are reasonable grounds to believe that costs will over time approximate revenue.

Note—

This section does not prevent AEMO from generating a profit from the performance of non-statutory functions (such as the provision of consultancy services). Any such profit would not, however, be available for distribution to members.

(4) Despite the above provisions, a component of AEMO's fees and charges may, if the Rules so provide, relate to costs that are not specifically referable to services provided under this Law or the Rules.

Note—

As a general rule, AEMO's expenditures will be allocated to services provided to the electricity industry or the gas industry. Subsection (4) deals with costs that cannot be wholly attributed to either industry.

(5) This section does not limit AEMO's power to determine, charge for and recover fees and charges for carrying out functions conferred by jurisdictional legislation.

(6) In this section—

service includes the performance of statutory functions.

Division 5—Information gathering

53—Information gathering powers

(1) If AEMO considers it reasonably necessary to do so for the exercise of a relevant function, it may—

(a) make a general market information order requiring information from persons of a class specified in the order; or

(b) serve a market information notice requiring information from the person to whom the notice is addressed.

(2) A relevant function is—

(a) an NTP function; or

(b) an additional advisory function; or

(d) any other statutory function for which this Law authorises AEMO to gather information by means of a market information instrument.

(3) In considering whether to make a general market information order or to issue a market information notice and, if so, the terms of the order or notice, AEMO must have regard to the reasonable costs of efficient compliance.

(4) A market information instrument—

(a) must specify—

(i) the information, or categories of information, that is to be provided to AEMO; and

(ii) the time by which the information is required; and

(iii) in the case of a general market information order—the class of persons to which the order applies; and

(iv) in the case of a market information notice—the name of the person to whom the notice is addressed; and

(b) may specify the manner and form in which information must be provided.

(5) Without limiting subsection (4), a market information instrument—

(a) may require information of any of the following kinds:

(i) historic, current and forecast information;

(ii) information that may be derived from other information in the possession or control of the person required to provide the information; and

(b) may require the provision of information on an annual or other periodic basis.

53A—Making and publication of general market information order

(1) Before making a final decision to make a general market information order, AEMO must—

(a) invite persons of the class to which the proposed order is addressed to make representations about the terms of the proposed order within a period (at least 20 business days) specified in the invitation; and

(b) consider any written representations made in response to the invitation within the specified period.

(2) A general market information order must be published on AEMO's website as soon as practicable after it is made.

53B—Service of market information notice

(1) Before serving a market information notice, AEMO must—

(a) give the person on whom AEMO intends to serve the market information notice (the respondent ) written notice of its intention to do so; and

(b) give the respondent a draft of the market information notice.

(2) A notice under subsection (1) must—

(a) invite the respondent to make written representations to AEMO about whether AEMO should serve the market information notice; and

(b) specify the period (at least 20 business days) allowed for making the representations.

(3) AEMO must consider written representations made in response to the invitation within the specified period before making a final decision to serve the market information notice.

53C—Compliance with market information instrument

(1) A market information instrument takes effect as follows:

(a) in the case of a general market information order—on publication on AEMO's website; or

(b) in the case of a market information notice—on service of the notice on the person to whom it is addressed.

(2) AEMO may, by written notice, exempt a person from compliance with a general market information order—

(a) unconditionally or on specified conditions; and

(b) wholly or to a specified extent.

(3) Subject to any exemption, a person who is a member of a class to which a general market information order applies must comply with the order.

Note—

Subsection (3) is a civil penalty provision.

(4) A person on whom a market information notice is served must comply with the notice.

Note—

Subsection (4) is a civil penalty provision.

(5) The duty to comply with a market information instrument prevails over a duty of confidence.

(6) However—

(a) a person cannot be required by a market information instrument to disclose information that is the subject of legal professional privilege; and

(b) a natural person cannot be required by a market information instrument to disclose information that would incriminate the person or make the person liable to a criminal penalty under the law of an Australian jurisdiction (whether or not the jurisdiction is a participating jurisdiction).

(7) A person incurs no liability, by complying with a market information instrument, for breach of contract, breach of confidence or any other civil wrong.

53D—Use of information

Subject to this Law, the Rules and the Regulations, AEMO may use information obtained by market information instrument or in any other way for any purpose connected with the exercise of any of its statutory functions.

53E—Providing false or misleading information

A person must not, in purported compliance with a market information instrument, provide information to AEMO that the person knows is false or misleading in a material particular.

Maximum penalty:

(a) in the case of a natural person—$6 300;

(b) in the case of a body corporate—$31 500.

Note—

Division 6—Protected information

Subdivision 1—AEMO's obligation to protect information

54—Protected information

(1) AEMO must take all reasonable measures to protect from unauthorised use or disclosure information ( protected information )—

(a) given to it in confidence; or

(b) given to it in connection with the performance of its statutory functions and classified under the Rules or the Regulations as confidential information.

(2) AEMO makes unauthorised use of protected information if (and only if) it uses the information contrary to this Law, the Rules or the Regulations.

Note—

Section 53D authorises AEMO (subject to the Law, the Rules and the Regulations) to use information (whether obtained by market information instrument or in any other way) for any purpose connected with the exercise of any of its statutory functions.

(3) AEMO makes an unauthorised disclosure of protected information if the disclosure is not authorised under this Law, the Rules or the Regulations.

Subdivision 2—Disclosure of protected information held by AEMO

54A—Authorised disclosure of protected information

(1) AEMO is authorised to disclose protected information in accordance with this Subdivision.

(2) AEMO may also be authorised to disclose protected information by the Rules or the Regulations (or both).

54B—Disclosure with prior written consent

AEMO is authorised to disclose protected information if it has the written consent of the person from whom the information was obtained.

54C—Disclosure required or permitted by law etc

(1) The disclosure of protected information as required or permitted by a law of the Commonwealth, a State or Territory is authorised.

(2) The disclosure of protected information to any of the following is authorised:

(a) the Australian Competition and Consumer Commission;

(b) the Australian Energy Regulator;

(ca) the Energy Security Board;

(d) the Economic Regulation Authority of Western Australia;

(e) a jurisdictional regulator;

(f) if the information is reasonably required by an energy ombudsman to resolve a dispute between a Registered participant and a retail customer but the information is not end-use consumer information—the energy ombudsman;

(g) a prescribed body;

(h) any staff or consultant assisting a body mentioned above in performing its functions or exercising its powers.

(3) A person or body to whom protected information is disclosed under subsection (2) may use the information for any purpose connected with the performance of the functions, or the exercise of the powers, of the person or body.

(4) AEMO may impose conditions to be complied with in relation to protected information disclosed under subsection (2).

(5) The disclosure of protected information by a person in the ordinary course of carrying out functions as an officer or employee of, or consultant to, AEMO or a body mentioned in subsection (2) is authorised.

54D—Disclosure for purposes of court and tribunal proceedings

AEMO is authorised to disclose protected information for the purposes of—

(a) civil or criminal proceedings; or

(b) a proceeding before the Tribunal or a tribunal established by or under a law of this jurisdiction or another participating jurisdiction.

54E—Disclosure of document with omission of protected information

(1) If a document contains both protected information and other information, AEMO may disclose the document with the omission of the protected information.

(2) AEMO must include a note at the place in the document from which the protected information is omitted to the effect that protected information has been omitted from the document.

54F—Disclosure of non-identifying information

AEMO is authorised to disclose protected information if—

(a) it does not disclose any elements of the information that could lead to the identification of the person to whom the information relates; or

(b) the manner in which it discloses the information does not identify the person to whom that information relates.

Example—

Protected information may be combined or arranged with other information to prevent the identification of the person to whom the protected information relates.

54FA—Disclosure of information in an aggregated form

AEMO is authorised to disclose information given to it in confidence, in compliance with this Law or the Rules or voluntarily, if the information has been combined or arranged with other information so that it does not reveal any confidential aspects of the information.

54G—Disclosure of protected information for safety, proper operation of the market etc

(1) AEMO is authorised to disclose protected information if—

(a) the disclosure is necessary for—

(i) the safety, reliability or security of the supply of electricity; or

(ii) the safety, reliability or security of the national electricity system; or

(b) the disclosure is necessary for the proper operation of the national electricity market; or

(d) the information is in the public domain.

(2) AEMO may impose conditions to be complied with in relation to information disclosed under subsection (1)(a), (b) or (c).

54H—Disclosure of protected information authorised if detriment does not outweigh public benefit

(1) Subject to this section, AEMO is authorised to disclose protected information after the restricted period if AEMO is of the opinion—

(a) that the disclosure of the information would not cause detriment to the person who has given it or to a person from whom that person received it; or

(b) that, although the disclosure of the information would cause detriment to such a person, the public benefit in disclosing it outweighs that detriment.

(2) Before disclosing the protected information, AEMO must give the person who gave the protected information—

(a) a written notice (an initial disclosure notice ) stating—

(i) that AEMO wishes to disclose the information, specifying the nature of the intended disclosure; and

(ii) that AEMO is of the opinion required by subsection (1); and

(iii) that the person, within the period specified in the notice, may make representations to AEMO against disclosure of the information; and

(b) AEMO's decision, in writing, setting out the reasons why AEMO—

(i) wishes to make the disclosure; and

(ii) is of the opinion required by subsection (1).

(3) If AEMO is aware that the person who gave the protected information in turn received the information from another person and is aware of the other person's identity and address, AEMO must, before disclosing the information give the other person—

(a) a written notice (an initial disclosure notice ) stating—

(i) that AEMO wishes to disclose the information, specifying the nature of the intended disclosure; and

(ii) that AEMO is of the opinion required by subsection (1); and

(iii) that the person, within the period specified in the notice, may make representations to AEMO against disclosure of the information; and

(b) AEMO's decision, in writing, setting out the reasons why AEMO—

(i) wishes to make the disclosure; and

(ii) is of the opinion required by subsection (1).

(4) AEMO must consider every representation made to it by a person given an initial disclosure notice within the time specified in the notice.

(5) The period specified in an initial disclosure notice must not be less than 5 business days after the date the initial disclosure notice is given to the person.

(6) If, after considering the representations, AEMO wishes to disclose the protected information, AEMO must give the person given the initial disclosure notice—

(a) a written notice (a further disclosure notice ) stating—

(i) that AEMO intends to disclose the information, specifying the nature of the intended disclosure; and

(ii) that AEMO is of the opinion required by subsection (1); and

(b) AEMO's decision, in writing, setting out the reasons why AEMO—

(i) intends to make the disclosure; and

(ii) is of the opinion required by subsection (1).

(7) For the purposes of this section, the disclosure of anything that is already in the public domain at the time AEMO wishes to disclose it cannot cause detriment to any person referred to in subsection (2) or (3).

(7a) Despite anything to the contrary in this Law, this section is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to—

(a) AEMO's decision under subsection (1) to disclose protected information; and

(b) without limiting paragraph (a), if AEMO's decision under subsection (1) is to disclose the protected information, AEMO's opinion—

(ii) that, although the disclosure of the information would cause detriment to such a person, the public benefit in disclosing it outweighs that detriment.

(8) In this section—

restricted period means a period of 5 business days after—

(a) an initial disclosure notice has been given under this section; or

(b) a further disclosure notice has been given under this section,

whichever is the later.

Division 7—AEMO's statutory funds

55—Definitions

In this Division—

Rule fund means a fund existing in NEMMCO's books as a Rule fund immediately before the changeover date or a fund established as a Rule fund under this Division.

55A—AEMO's Rule funds

(1) Subject to the Rules, AEMO is responsible for the administration of each Rule fund.

(2) AEMO must, if required to do so by the Rules, establish and maintain a new Rule fund in accordance with the Rules.

(3) Nothing in this Law or the Rules constitutes AEMO, or a director of AEMO, as a trustee of a Rule fund.

55B—Payments into and out of Rule funds

(1) AEMO must ensure that there is paid into each Rule fund—

(a) all amounts received by AEMO that, under the Rules, are required to be paid into the fund; and

(b) income from investment of money in the fund.

(2) Money held in a Rule fund may be applied only in payment of—

(a) amounts that, under the Rules, are required or permitted to be paid from the fund; or

(b) liabilities or expenses of the fund.

55C—Investment

(1) AEMO may invest money standing to the credit of a Rule fund.

(2) AEMO must, in exercising the power of investment, exercise the care, diligence and skill that a prudent person would exercise in managing the affairs of others.

Part 5A—Functions and powers of Minister of this participating jurisdiction

57A—Functions and powers of Minister of this participating jurisdiction

(1) The Minister of this participating jurisdiction has the functions and powers conferred on him or her under this Law, the Regulations or the Rules.

(2) The Minister of this participating jurisdiction has power to do all things necessary or convenient to be done for or in connection with the performance of his or her functions.

(3) In this section—

Minister of this participating jurisdiction means the Minister that administers the Act of this jurisdiction that applies this Law or a part of this Law as a law of this jurisdiction—see section 6(1)(b).

Part 5B—Functions and powers of Tribunal

57B—Functions and powers of Tribunal under this Law

(1) The Tribunal has the functions and powers conferred on it under Division 3A of Part 6 and any Regulations made for the purposes of that Division.

(2) The Tribunal has power to do all things necessary or convenient to be done for or in connection with the performance of its functions.

Part 6—Proceedings under the National Electricity Law

Division 1—General

59—Instituting civil proceedings under this Law

(1) Proceedings may not be instituted in a relevant court in respect of a breach of a provision of this Law, the Regulations or the Rules that is not an offence provision by any person (other than the AER) except as provided for in this Part.

(2) Despite subsection (1), a person may institute a proceeding in the Court in respect of any matter or thing arising out of or that is the subject of a Rule dispute if the Rules provide that a proceeding may be instituted in the Court in respect of that matter or thing.

(3) To avoid doubt, nothing in this Part prevents the use of this Law, the Regulations or the Rules as evidence in any proceedings.

Division 1A—Enforceable undertakings

59A—Enforceable undertakings

(1) The AER may accept a written undertaking given by a person for the purposes of this section in connection with a matter in relation to which the AER has a function or power under this Law or the Rules.

(2) A person may withdraw or vary the undertaking at any time, but only with the consent of the AER.

(3) If the AER considers that the person who gave the undertaking has breached any of its terms, the AER may apply to the Court for an order under subsection (4).

(4) If the Court is satisfied that the person has breached a term of the undertaking, the Court may make any or all of the following orders:

(a) an order directing the person to comply with that term of the undertaking;

(b) an order directing the person to pay the Commonwealth an amount up to the amount of any financial benefit that the person has obtained directly or indirectly and that is attributable to the breach;

(c) an order that the Court considers appropriate directing the person to compensate any other person who has suffered loss or damage as a result of the breach;

(d) any other order that the Court considers appropriate.

Division 2—Proceedings by the AER in respect of this Law, the Regulations and the Rules

60—Time limit within which AER may institute proceedings

(1) A proceeding for a breach of a provision of this Law, the Regulations or the Rules by a person that is not an offence provision may only be instituted by the AER within 6 years of the date on which the breach occurred.

(2) A person, other than the AER, may only institute a proceeding for a breach of a conduct provision by another person within 6 years after the date on which the breach occurred.

61—Proceedings for breaches of a provision of this Law, the Regulations or the Rules that are not offences

(1) The Court may make an order, on application by the AER on behalf of the Commonwealth, declaring that a person has breached a provision of this Law, the Regulations or the Rules that is not an offence provision.

Note—

A Supreme Court of a participating jurisdiction that is a State may hear an application by the AER under subsection (1) by operation of subsection 39(2) of the Judiciary Act 1903 of the Commonwealth.

(2) If the order declares the person has breached a provision of this Law, the Regulations or the Rules that is not an offence provision, the order may include one or more of the following—

(a) an order that the person pay a civil penalty determined in accordance with this Law, the Regulations and the Rules;

(b) an order that the person cease, within a specified period, the act, activity or practice constituting the breach;

(c) an order that the person take such action, or adopt such practice, as the Court requires for remedying the breach or preventing a recurrence of the breach;

(d) an order that the person implement a specified program for compliance with this Law, the Regulations and the Rules;

(da) an order that the person perform a specified service that relates to the breach and that is for the benefit of the community or a section of the community;

(db) an order that the person, at the person's expense, engage—

(i) another person specified in the order; or

(ii) another person in a class of persons specified in the order,

to perform a service that is specified in the order and that relates to the breach and that is for the benefit of the community or a section of the community;

(dc) an order to ensure that the person does not engage in further conduct of the same nature, or similar or related conduct, during the period of the order (which cannot exceed 3 years), including—

(i) an order that the person establish a compliance program or an education and training program for employees or other persons involved in the person's business, being a program designed to ensure their awareness of the responsibilities and obligations in relation to the conduct constituting the breach, or similar or related conduct; or

(ii) an order that the person revise the internal operations of the person's business that led to the person committing the breach;

(dd) an order that the person—

(i) disclose, in the way and to the persons specified in the order, specified information, being information that the person has possession of or access to; and

(ii) publish, at the person's expense and in the way specified in the order, an advertisement in the terms specified in, or determined in accordance with, the order;

(e) an order of a kind prescribed by the Regulations.

(2a) An order under subsection (2) paragraph (db) is not enforceable against a person mentioned in paragraph (db)(i) or (ii).

(3) If a person has engaged, is engaging or is proposing to engage in any conduct in breach of a provision of this Law, the Regulations or the Rules that is not an offence provision, the Court may, on application by the AER on behalf of the Commonwealth, grant an injunction—

(a) restraining the person from engaging in the conduct; and

(b) if, in the Court's opinion, it is desirable to do so—requiring the person to do something.

(4) The power of the Court under subsection (3) to grant an injunction restraining a person from engaging in conduct of a particular kind may be exercised—

(a) if the Court is satisfied that the person has engaged in conduct of that kind—whether or not it appears to the Court that the person intends to engage again, or to continue to engage, in conduct of that kind; or

(b) if it appears to the Court that, if an injunction is not granted, it is likely that the person will engage in conduct of that kind—whether or not the person has previously engaged in conduct of that kind and whether or not there is an imminent danger of substantial damage to any person if the person engages in conduct of that kind.

61A—Proceedings for declaration that a person has breached a conduct provision

(1) The Court may make an order, on application by a person other than the AER, declaring that another person has breached a conduct provision.

(2) If the order declares a person has breached a conduct provision, the order may include one or more of the following:

(a) an order that the person cease, within a specified period, the act, activity or practice constituting the breach;

(b) an order that the person take such action, or adopt such practice, as the Court requires for remedying the breach or preventing a recurrence of the breach;

(d) an order of a kind prescribed by the Regulations.

(3) If a person has engaged, or is engaging or proposing to engage in any conduct in breach of a conduct provision, the Court may, on application by another person (other than the AER), grant an injunction—

(a) restraining the first mentioned person from engaging in the conduct; and

(b) if, in the Court's opinion, it is desirable to do so—requiring the first mentioned person to do something.

(4) The power of the Court under subsection (3) to grant an injunction restraining a person from engaging in conduct of a particular kind may be exercised—

61B—Actions for damages by persons for breach of conduct provisions

A person other than the AER who suffers loss or damage by conduct of another person that was done in breach of a conduct provision may recover the amount of the loss or damage by action against that other person in a court of competent jurisdiction.

62—Additional Court orders

An order under section 61 by the Court may, in relation to a Registered participant that has been declared in that order to have breached a provision of this Law, the Regulations or the Rules that is not an offence provision, also include either or both of the following—

(a) a direction that the Registered participant's loads be disconnected in accordance with the Rules;

(b) a direction that the Registered participant be suspended from, as the case requires, purchasing or supplying electricity through the wholesale exchange operated and administered by AEMO.

63—Orders for disconnection in certain circumstances where there is no breach

(1) The Court, on application by the AER on behalf of the Commonwealth, may make an order that directs that a Registered participant's loads be disconnected if a relevant disconnection event occurs.

(2) In this section—

relevant disconnection event means an event specified in the Rules as being an event for which a Registered participant's loads may be disconnected, being an event that does not constitute a breach of the Rules.

64—Matters for which there must be regard in determining amount of civil penalty

Every civil penalty ordered to be paid by a person declared to have breached a provision of this Law, the Regulations or the Rules must be determined having regard to all relevant matters, including—

(a) the nature and extent of the breach; and

(b) the nature and extent of any loss or damage suffered as a result of the breach; and

(ba) without limiting the operation of section 2AB(1)(c)(ii)(B) or (C) or (d)(ii)(B)—the value of any benefit reasonably attributable to the breach that the person or, in the case of a body corporate, any related body corporate, has obtained, directly or indirectly; and

(d) whether the person has engaged in any similar conduct and been found to have breached a provision of this Law, the Rules or the Regulations in respect of that conduct; and

(e) whether the service provider had in place a compliance program approved by the AER or required under the Rules, and if so, whether the service provider has been complying with that program.

65—Breach of a civil penalty provision is not an offence

A breach of a civil penalty provision is not an offence.

66—Breaches of civil penalty provisions involving continuing failure

For the purpose of determining the civil penalty for a breach of a civil penalty provision if the breach consists of a failure to do something that is required to be done, the breach is to be regarded as continuing until the act is done despite the fact that any period within which, or time before which, the act is required to be done has expired or passed.

67—Conduct in breach of more than one civil penalty provision

(1) If the conduct of a person constitutes a breach of 2 or more civil penalty provisions, proceedings may be instituted under this Law against the person in relation to the breach of any one or more of those provisions.

(2) However, the person is not liable to more than one civil penalty under this Law in respect of the same conduct.

Note—

Clause 39 of Schedule 2 to this Law sets out further provisions in relation to double jeopardy.

67A—Conduct in breach of reliability obligation civil penalty provision

(1) This section applies for the purpose of determining the civil penalty for a breach of the reliability obligation civil penalty provision.

(2) If the conduct of a person constitutes a breach of the reliability obligation civil penalty provision on 2 or more occasions in relation to the same reliability gap period, proceedings may be instituted under this Law against the person in relation to the breach of the provision on any 1 or more of those occasions.

(3) However, the person is not liable to more than 1 civil penalty under this Law in respect of a breach of the reliability obligation civil penalty provision for 1 reliability gap period.

68—Persons involved in breach of civil penalty provision or conduct provision

(1) A person must not—

(a) aid, abet, counsel or procure a breach of a civil penalty provision or conduct provision by another person; or

(b) be in any way directly or indirectly knowingly concerned in, or a party to, a breach of a civil penalty provision or conduct provision by another person.

(2) This Law applies to a person who breaches subsection (1) in relation to a civil penalty provision or conduct provision as if the person were a person who has breached the civil penalty provision or conduct provision.

68A—Attempt to breach civil penalty provision

A person who attempts to commit a breach of a civil penalty provision commits a breach of that provision.

69—Civil penalties payable to the Commonwealth

If a person is ordered to pay a civil penalty, the penalty is payable to the Commonwealth.

Division 2A—Proceedings before, and awards etc of, Dispute resolution panels

69A—Commercial Arbitration Acts apply to proceedings before Dispute resolution panels

(1) Subject to the modifications prescribed by the Regulations, the procedural provisions of the Commercial Arbitration Act of this jurisdiction apply to the hearing of a Rule dispute and decision or determination of a Dispute resolution panel.

(2) In this section—

procedural provisions of the Commercial Arbitration Act of this jurisdiction means the provisions prescribed by the Regulations for the purposes of this section.

Division 3—Judicial review of decisions and determinations under this Law, the Regulations and the Rules

70—Applications for judicial review

(1) A person aggrieved by—

(a) a decision or determination of the AEMC or AEMO under this Law, the Regulations or the Rules; or

(b) a failure by the AEMC or AEMO to make a decision or determination under this Law, the Regulations or the Rules; or

(c) conduct engaged in, or proposed to be engaged in, by the AEMC or AEMO for the purpose of making a decision or determination under this Law, the Regulations or the Rules,

may apply to the Court for judicial review of the decision or determination, failure or conduct or proposed conduct.

Note—

The AER is subject to judicial review under the Administrative Decisions (Judicial Review) Act 1977 of the Commonwealth.

(2) Unless the Court otherwise orders, the making of an application to the Court under subsection (1) does not affect the operation of the decision or determination referred to in that subsection or prevent the taking of action to implement the decision or determination.

(3) In this section—

person aggrieved includes a person whose interests are adversely affected.

71—Appeals on questions of law from decisions or determinations of Dispute resolution panels

(1) A person who is a party to a Rule dispute may appeal to the Court, on a question of law, against a decision or determination of a Dispute resolution panel.

(2) Subject to the modifications prescribed by the Regulations, the review provisions of the Commercial Arbitration Act of this jurisdiction apply to a decision or determination of a Dispute resolution panel.

(3) In this section—

review provisions of the Commercial Arbitration Act of this jurisdiction means the provisions prescribed by the Regulations for the purposes of this section.

Division 3A—Merits review and other non-judicial review

Subdivision 1—Interpretation

71A—Definitions

In this Division—

applicant means—

(b) a person who makes an application under section 71S;

information disclosure decision means—

(a) a decision to disclose information made by the AER under section 28ZB; or

(b) a decision to disclose information made by AEMO under section 54H;

review under this Division means a review under Subdivision 3.

Subdivision 3—Tribunal review of information disclosure decisions

71S—Application for review

(1) A person whose interests are adversely affected by an information disclosure decision may apply to the Tribunal for a review of the decision.

(2) An application must be made in the form and manner determined by the Tribunal.

(3) An application may only be made on the ground that—

(a) the decision was not made in accordance with law; or

(b) the decision is unreasonable having regard to all relevant circumstances.

(4) The person must lodge the application with the Tribunal no later than 5 business days after the date of the last notice given under section 28ZB or section 54H (as the case requires).

(5) An application under this section stays the operation of the decision until the earlier of—

(a) 20 business days; or

(b) the making of a determination by the Tribunal in respect of the application.

71T—Exclusion of public in certain cases

On the application of a party to a review under this Subdivision, the Tribunal may conduct the review in the absence of the public.

71U—Determination in the review

(1) Subject to this Division, on receipt of an application under section 71S, the Tribunal must make a determination in respect of the application.

(2) A determination under this section must only—

(a) affirm the information disclosure decision; or

(b) forbid disclosure by the AER or AEMO of the information or document to which the information disclosure decision relates; or

(c) restrict, as specified in the determination, the intended disclosure by the AER or AEMO of the information or document to which the information disclosure decision relates.

(3) For the purposes of making a determination of the kind in subsection (2)(a), the Tribunal may perform all the functions and exercise all the powers of the AER or AEMO (as the case requires) under this Law or the Rules.

(4) A determination by the Tribunal affirming the information disclosure decision, or forbidding or restricting disclosure of information, is, for the purposes of this Law (other than this Part), to be taken to be a decision of the AER or AEMO (as the case requires).

71V—Tribunal must be taken to have affirmed decision if decision not made within time

(1) This section applies if the Tribunal does not make a determination under section 71U within 20 business days after an application is lodged under section 71S.

(2) The Tribunal must be taken to have made a determination under section 71U affirming the information disclosure decision to which the application relates.

71W—Assistance from AER or AEMO

The member of the Tribunal presiding in the review may require the AER or AEMO (as the case requires) to give information, to make a report or to give other assistance for the purposes of the review.

Subdivision 4—General

71X—Costs in a review

(1) Subject to this section, the Tribunal may order that a party to a review under this Division pay all or a specified part of the costs of another party to the review.

(2) The Tribunal must not make an order requiring the AER to pay the costs of another party to the review unless the Tribunal considers that the AER has conducted their case in the review without due regard to—

(a) the costs that would have to be incurred by another party to the review as a result of that conduct; or

(b) the time required by—

(i) the Tribunal to hear the review as a result of that conduct; or

(ii) another party to prepare their case as a result of that conduct; or

71Y—Amount of costs

(1) If the Tribunal makes an order for costs in a review under this Division, the Tribunal may in that order fix the amount of costs payable by a party to the review on—

(a) a party and party basis; or

(b) a solicitor and client basis; or

(d) any other basis as the Tribunal may decide.

Division 3B—Enforcement of access determinations

71ZA—Enforcement of access determinations

(1) If the Court is satisfied, on the application of a party to an access determination, that another party to the determination has engaged, is engaging, or is proposing to engage in conduct that constitutes a contravention of the determination, the Court may make all or any of the following orders:

(a) an order granting an injunction on such terms as the Court thinks appropriate—

(i) restraining the other party from engaging in the conduct; or

(ii) if the conduct involves refusing or failing to do something—requiring the other party to do that thing;

(b) an order directing the other party to compensate the applicant for loss or damage suffered as a result of the contravention;

(2) The revocation of an access determination does not affect any remedy under subsection (1) in respect of a contravention of the determination that occurred when the determination was in force.

(3) If the Court has power under subsection (1) to grant an injunction restraining a person from engaging in particular conduct, or requiring a person to do anything, the Court may make any other orders (including granting an injunction) that it thinks appropriate against any other person who was involved in the contravention concerned.

(4) A reference in this section to a person involved in the contravention is a reference to a person who has—

(a) aided, abetted, counselled or procured the contravention; or

(b) induced the contravention, whether through threats or promises or otherwise; or

(d) conspired with others to effect the contravention.

71ZB—Consent injunctions

On an application for an injunction under section 71ZA, the Court may grant an injunction by consent of all of the parties to the proceedings, whether or not the Court is satisfied that the section applies.

71ZC—Interim injunctions

The Court may grant an interim injunction pending determination of an application under section 71ZA.

71ZD—Factors relevant to granting a restraining injunction

The power of the Court to grant an injunction under section 71ZA restraining a person from engaging in conduct may be exercised whether or not—

(a) it appears to the Court that the person intends to engage again, or to continue to engage, in conduct of that kind; or

(b) the person has previously engaged in conduct of that kind; or

(c) there is an imminent danger of substantial damage to any person if the first mentioned person engages in conduct of that kind.

71ZE—Factors relevant to granting a mandatory injunction

The power of the Court to grant an injunction under section 71ZA requiring a person to do a thing may be exercised whether or not—

(a) it appears to the Court that the person intends to refuse or fail again, or to continue to refuse or fail, to do that thing; or

(b) the person has previously refused or failed to do that thing; or

(c) there is an imminent danger of substantial damage to any person if the first mentioned person refuses or fails to do that thing.

71ZF—Discharge or variation of injunction or other order

The Court may discharge or vary an injunction or order granted under this Division.

Division 4—Other civil proceedings

72—Obligations under Rules to make payments

(1) If, under the Rules—

(a) a relevant person is required to pay an amount to AEMO or another relevant person; or

(b) AEMO is required to pay an amount to a Registered participant,

and that amount is not paid within 28 days after it is due in accordance with the Rules, the relevant person to whom the amount is due, or AEMO (as the case requires), may recover that amount in a relevant court of competent jurisdiction as a civil debt payable to them.

(2) If, under the Rules, a relevant person is required to pay an amount to AEMO or another relevant person, or AEMO is required to pay an amount to a Registered participant, and the Rules do not specify a date for payment of that amount—

(a) that amount must be paid within the period of time specified in any notice to pay issued by the relevant person or AEMO (as the case requires) that specifies that amount; and

(b) the relevant person that issued the notice to pay, or AEMO (as the case requires), may, if that amount is not paid within 28 days after it is due in accordance with that notice, recover that amount in a relevant court of competent jurisdiction as a civil debt payable to them.

(3) Subsection (1) and (2) apply despite a relevant person or AEMO disputing, in accordance with the Rules, an amount to be paid under the Rules, or specified in a notice to pay, unless—

(a) the Rules otherwise provide; or

(b) the parties to the dispute agree otherwise; or

(c) a relevant Dispute resolution panel, in a civil claim Rule dispute in respect of the payment of an amount referred to in subsection (1) or (2), determines that the relevant subsection does not apply; or

(d) a relevant court of competent jurisdiction determines that subsection (1) or (2) does not apply.

(4) In this section—

civil claim Rule dispute means a dispute between relevant persons, or between AEMO and a relevant person, in relation to the payment of an amount under the Rules in respect of which the Rules provide that the dispute must be resolved in accordance with the Rules;

relevant Dispute resolution panel means a Dispute resolution panel appointed to hear and determine a civil claim Rule dispute;

relevant person means—

(a) a Registered participant; or

(b) a liable entity;

notice to pay includes a statement of payment, settlement statement, bill or invoice.

Division 5—Infringement notices

73—Definitions

In this Division—

tier 1 civil penalty provision means a civil penalty provision with a civil penalty determined under section 2AB(1)(c) or (d)(ii)(B);

tier 2 civil penalty provision means a civil penalty provision with a civil penalty determined under section 2AB(1)(b) or (d)(i) or (ii)(A);

tier 3 civil penalty provision means a civil penalty provision with a civil penalty determined under section 2AB(1)(a).

74—Power to serve a notice

(1) Subject to this section, the AER may serve an infringement notice on a person if the AER believes on reasonable grounds that the person has breached a civil penalty provision.

(1a) The AER must, however, serve an infringement notice not later than 12 months after the date on which the AER forms a belief that there has been a breach of a civil penalty provision.

(2) An infringement notice may be served on a person—

(a) if the person is a natural person—

(i) by delivering it personally to the person; or

(ii) by sending it by post addressed to the person to their usual or last known place of residence or business; or

(b) if the person is a body corporate—

(i) by delivering it personally to the registered office or usual or last known place of business of the body corporate; or

(ii) by sending it by post addressed to the body corporate to its registered office or usual or last known place of business.

75—Form of notice

An infringement notice must state—

(a) the date of the notice;

(b) that the alleged breach is a breach of the civil penalty provision;

(d) the date, time and place of the alleged breach;

(e) the infringement penalty for the alleged breach;

(f) the manner in which the infringement penalty may be paid;

(g) the time (being not less than 28 days after the date on which the notice is served) within which the infringement penalty must be paid;

(h) that, if the amount of the infringement penalty is paid before the end of the time specified in the notice, proceedings will not be instituted in respect of the alleged breach by the AER unless the notice is withdrawn before the end of that time in accordance with section 79;

(i) that the person is entitled to disregard the notice and defend any proceedings in respect of the civil penalty provision;

(j) any other particulars prescribed by the Regulations.

76—Infringement penalties

(1) The infringement penalty for a breach of a civil penalty provision is—

(a) in the case of a tier 3 civil penalty provision—

(i) if the breach is alleged to have been committed by a natural person—$6 790 or any lesser amount that is prescribed by the Regulations in relation to the civil penalty provision;

(ii) if the breach is alleged to have been committed by a body corporate—

(A) if the AER makes a determination under subsection (2)—$6 790 or any lesser amount that is prescribed by the Regulations in relation to the civil penalty provision; or

(B) in any other case—$33 900 or any lesser amount that is prescribed by the Regulations in relation to the civil penalty provision;

(b) in the case of a tier 1 or tier 2 civil penalty provision—

(i) if the breach is alleged to have been committed by a natural person—$13 600 or any lesser amount that is prescribed by the Regulations in relation to the civil penalty provision;

(ii) if the breach is alleged to have been committed by a body corporate—$67 800 or any lesser amount that is prescribed by the Regulations in relation to the civil penalty provision.

(2) In the case of a body corporate that is not a listed corporation or a body corporate that is subject to the infringement penalty by virtue only of being a related body corporate, the AER may, in a particular case, determine that the infringement penalty to be included in an infringement notice to be issued to the body corporate in relation to an alleged breach of a tier 3 civil penalty provision will be the amount applying under subsection (1)(a)(ii)(A) if the AER considers this to be an appropriate course of action after taking into account—

(a) the nature of the alleged breach; and

(b) the degree of financial impact on the body corporate if the higher infringement penalty under subsection (1)(a)(ii)(B) were to be imposed; and

(c) the extent to which the imposition of the higher infringement penalty would appear to be excessive in the circumstances; and

(d) any other matter considered relevant by the AER.

Note—

See Schedule 2 clause 37A, which provides for the amounts specified in this section to be adjusted every 3 years to reflect movements in the consumer price index. The adjusted amounts are published on the AER's website.

77—AER cannot institute proceedings while infringement notice on foot

On serving an infringement notice under this Division, the AER must not institute a proceeding in respect of the breach for which the infringement notice was served if—

(a) the time for payment stated in the infringement notice has not expired; and

(b) the infringement notice has not been withdrawn by the AER in accordance with section 79.

78—Late payment of penalty

The AER may accept payment of the infringement penalty even after the expiration of the time for payment stated in the infringement notice if—

(a) a proceeding has not been instituted in respect of the breach to which the infringement penalty relates; and

(b) the infringement notice has not been withdrawn by the AER in accordance with section 79.

79—Withdrawal of notice

(1) The AER may withdraw an infringement notice at any time before the end of the time for payment specified in the notice by serving a withdrawal notice on the person served with the infringement notice.

(2) A withdrawal notice may be served on a person—

(a) if the person is a natural person—

(i) by delivering it personally to the person; or

(ii) by sending it by post addressed to the person to their usual or last known place of residence or business; or

(b) if the person is a body corporate—

(i) by delivering it personally to the registered office or usual or last known place of business of the body corporate; or

(ii) by sending it by post addressed to the body corporate to its registered office or usual or last known place of business.

(3) An infringement notice may be withdrawn even if the infringement penalty has been paid.

80—Refund of infringement penalty

If an infringement notice is withdrawn in accordance with section 79, the amount of any infringement penalty paid must be refunded by the AER.

81—Payment expiates breach of civil penalty provision

No proceedings may be taken by the AER against a person on whom an infringement notice was served in respect of an alleged breach of a civil penalty provision if—

(a) the infringement penalty is—

(i) paid within the time for payment stated in the notice; and

(ii) not withdrawn by the AER within the time for payment stated in the notice in accordance with section 79; or

(b) the infringement penalty is accepted in accordance with section 78.

82—Payment not to have certain consequences

The payment of an infringement penalty under this Division is not and must not be taken to be an admission of a breach of a civil penalty provision or an admission of liability for the purpose of any proceeding instituted in respect of the breach.

83—Conduct in breach of more than one civil penalty provision

(1) If the conduct of a person constitutes a breach of 2 or more civil penalty provisions, an infringement notice may be served on the person under this Division in relation to the breach of any one or more of those provisions.

(2) However, the person is not liable to pay more than one infringement penalty in respect of the same conduct.

Note—

Clause 39 of Schedule 2 to this Law sets out further provisions in relation to double jeopardy.

Division 6—Miscellaneous

85—Offences and breaches by corporations

(1) If a corporation contravenes an offence provision or breaches a civil penalty provision, each officer of the corporation is to be taken to have contravened the offence provision or to have breached the civil penalty provision if the officer knowingly authorised or permitted the contravention or breach.

(2) An officer of a corporation may be proceeded against under an offence provision or civil penalty provision pursuant to this section whether or not the corporation has been proceeded against under the provision.

(3) Nothing in this section affects the liability of a corporation for a contravention of an offence provision or for a breach of a civil penalty provision.

86—Corporations also in breach if officers and employees are in breach

If an officer or employee of a corporation commits an act, which is within the scope of the actual or apparent authority of the officer or employee, that would, if that act were committed by the corporation, constitute a breach of a provision of this Law, the Regulations or the Rules, the corporation is taken to have contravened that provision.

Part 7—The making of the National Electricity Rules

Division 1—General

Subdivision 1—Interpretation

87—Definitions

In this Part—

AEMC initiated Rule means a Rule of the kind referred to in section 91(2);

AEMC Rule review means a review conducted by the AEMC under Division 5 of Part 4;

electricity market regulatory body means—

(a) the AER;

(b) AEMO;

market initiated proposed Rule means a request for a Rule, including a trial Rule, made under section 91(1) in respect of which the AEMC publishes a notice under section 95;

more preferable Rule has the meaning given by section 91A;

non-controversial Rule means a Rule that is unlikely to have a significant effect on the national electricity market;

proposed Rule means—

(a) a market initiated proposed Rule; or

(b) a proposal for an AEMC initiated Rule; or

publish means—

(a) in relation to a notice required to be published under this Part (except section 90 or 103)—publish in the South Australian Government Gazette and on the AEMC's website;

(ab) in relation to a decision under section 94(2)—publish on the AEMC's website and make available at the offices of the AEMC;

(b) in relation to a proposed Rule referred to in section 95 and any other documents prescribed by the Regulations in relation to a proposed Rule referred to in section 95—publish on the AEMC's website and make available at the offices of the AEMC;

(c) in relation to a draft Rule determination or final Rule determination—publish on the AEMC's website and make available at the offices of the AEMC;

(ca) in relation to a notice setting out requirements imposed under section 104B—publish on the AEMC's website;

(d) in relation to any submissions or comments received by the AEMC under this Part—subject to section 108, publish on the AEMC's website and make available at the offices of the AEMC;

(e) in relation to a report prepared under section 108A—publish on the AEMC's website and make available at the offices of the AEMC;

trial Rule means a Rule for the purposes of a trial project;

urgent Rule means a Rule relating to any matter or thing that, if not made as a matter of urgency, will result in that matter or thing imminently prejudicing or threatening—

(a) the effective operation or administration of the wholesale exchange operated and administered by AEMO; or

(b) the safety, security or reliability of the national electricity system.

Subdivision 2—Rule making tests

88—Application of national electricity objective

(1) The AEMC may only make a Rule if it is satisfied that the Rule will or is likely to contribute to the achievement of the national electricity objective.

(2) For the purposes of subsection (1), the AEMC may give such weight to any aspect of the national electricity objective as it considers appropriate in all the circumstances, having regard to any relevant MCE statement of policy principles.

88A—AEMC must take into account form of regulation factors in certain cases

In addition to complying with sections 88 and 88B, the AEMC must take into account the form of regulation factors and any other matter the AEMC considers relevant—

(a) in making a Rule that—

(i) specifies an electricity network service as a direct control network service or negotiated network service; or

(ii) confers a function or power on the AER to specify under a network revenue or pricing determination an electricity network service (to which the relevant determination applies) as—

(A) a direct control network service; or

(B) a negotiated network service; or

(b) in revoking a Rule that has been made or is in force that—

(i) specifies an electricity network service as a direct control network service or negotiated network service; or

(ii) confers a function or power on the AER to specify under a network revenue or pricing determination an electricity network service (to which the relevant determination applies) as—

(A) a direct control network service; or

(B) a negotiated network service.

88B—AEMC must take into account revenue and pricing principles in certain cases

In addition to complying with sections 88 and 88A, the AEMC must take into account the revenue and pricing principles in making a Rule for or with respect to any matter or thing specified in items 15 to 24 and 25 to 26J of Schedule 1 to this Law.

88C—AEMC must take into account innovative trial principles in certain cases

In addition to complying with sections 88 to 88B, the AEMC must take into account the innovative trial principles in making a trial Rule.

89—AEMC must have regard to certain matters in relation to the making of jurisdictional derogations

In making a jurisdictional derogation, the AEMC must have regard to whether—

(a) the derogation provides for the orderly transfer of the regulation of the electricity industry in a participating jurisdiction under jurisdictional electricity legislation to the regulation of that industry under the national electricity legislation; or

(b) the derogation continues existing regulatory arrangements applying to the electricity industry in a participating jurisdiction and the Minister of the participating jurisdiction requesting the derogation has notified, in writing, the AEMC that he or she considers it necessary and appropriate that the existing regulatory arrangements continue; or

(c) the derogation is necessary to exempt, on an ongoing basis, generating, transmission or distribution systems or other facilities owned, controlled or operated in the participating jurisdiction to which the derogation relates from complying with technical standards relating to connection to the national electricity system set out in the Rules because those systems or facilities, by reason of their design or construction, are unable to comply with those standards.

Division 2—Minister initiated National Electricity Rules

Subdivision 1—Initial Rules made by Minister

90—South Australian Minister to make initial National Electricity Rules

(1) The Minister in right of the Crown of South Australia administering Part 2 of the National Electricity (South Australia) Act 1996 of South Australia may make Rules for or with respect to any matter or thing referred to in section 34 and Schedule 1 to this Law.

(2) As soon as practicable after making Rules under subsection (1), the Minister referred to in that subsection must—

(a) publish notice of the making of the Rules in the South Australian Government Gazette ; and

(b) make the Rules publicly available.

(3) The notice referred to in subsection (2)(a) must state the date on which the Rules commence operation.

(4) The Rules made under subsection (1) may only be made on the recommendation of the MCE.

(5) If the Minister referred to in subsection (1) makes Rules under that subsection, the Minister cannot make another Rule under that subsection.

90A—South Australian Minister to make further Rules relating to distribution determinations consumer advocacy and other matters

(1) The Minister in right of the Crown of South Australia administering Part 2 of the National Electricity (South Australia) Act 1996 of South Australia may make Rules—

(a) for or with respect to any matter or thing referred to in—

(i) items 14A and 14B of Schedule 1 to this Law; and

(ii) items 25 to 26H of Schedule 1 to this Law; and

(iii) items 26I and 26J of Schedule 1 to this Law as they relate to distribution determinations and access determinations relating to access disputes about access to electricity network services provided by means of a distribution system;

(iv) items 26K, 30A to 30D and 34A to 34C of Schedule 1 to this Law;

(b) for or with respect to any matter or thing contemplated by, or is necessary or expedient for the purposes of the items of Schedule 1 to this Law referred to in paragraph (a);

(c) that revoke or amend a Rule as a consequence of the enactment of the Australian Energy Market Commission Establishment (Consumer Advocacy Panel) Amendment Act 2007 of South Australia.

(2) Despite anything to the contrary in this Law, the Minister referred to in subsection (1) may make a Rule under this section that is a derogation without a request from any person.

(3) Section 34(3) applies to the making of Rules under subsection (1) as if the Rules being made under subsection (1) were Rules being made by the AEMC.

(4) As soon as practicable after making Rules under subsection (1), the Minister referred to in that subsection must—

(a) publish notice of the making of the Rules in the South Australian Government Gazette; and

(b) make the Rules publicly available.

(5) The notice referred to in subsection (4)(a) must state—

(a) the date on which the Rules commence operation; or

(b) if different Rules will commence operation on different dates, those dates.

(6) The Rules made under subsection (1) may only be made on the recommendation of the MCE.

(7) If the Minister referred to in subsection (1) makes Rules under that subsection, the Minister cannot make another Rule under that subsection.

90AB—South Australian Minister to make initial Rules relating to consumer data right and further Rules relating to disclosure of data

(1) The Minister in right of the Crown of South Australia administering Part 2 of the National Electricity (South Australia) Act 1996 of South Australia (the South Australian Minister ) may make Rules—

(a) for or with respect to the implementation of the CDR provisions relating to a designated energy sector, including the disclosure of CDR data; and

(b) for or with respect to the recovery of costs incurred by AEMO in the carrying out of functions under section 49(1)(fa); and

(d) that revoke or amend a Rule as a consequence of the enactment of the consumer data right amendments.

(2) Rules may only be made under subsection (1) on the recommendation of the MCE.

(3) Section 34(3) applies to Rules made under subsection (1) in the same way as it applies to Rules made by the AEMC.

(4) As soon as practicable after making Rules under this section, the South Australian Minister must—

(a) publish notice of the making of the Rules in the South Australian Government Gazette; and

(b) make the Rules publicly available.

(5) The notice referred to in subsection (4)(a) must state—

(a) the date on which the Rules commence operation; or

(b) if different Rules will commence operation on different dates, those dates.

(6) Once the first Rules have been made under subsection (1), no further Rules can be made under that subsection.

(7) In this section—

consumer data right amendments means the amendments made to this Law by the National Electricity (South Australia) (Consumer Data Right) Amendment Act 2022 .

90B—South Australian Minister to make initial Rules related to AEMO's functions under this Law

(a) AEMO's statutory functions (including the additional advisory functions and the declared network functions);

(b) the subject matter of a new head of power added to Schedule 1 by the AEMO amendments;

(2) Rules may only be made under subsection (1) on the recommendation of the MCE.

(3) Rules in the nature of a derogation may be made under subsection (1) even though there may not have been a request for a derogation.

(4) Section 34(3) applies to Rules made under subsection (1) in the same way as it applies to Rules made by the AEMC.

(5) As soon as practicable after making Rules under subsection (1), the South Australian Minister must—

(a) publish in the South Australian Government Gazette notice of the making of the Rules stating the date of commencement of the Rules or, if different Rules commence at different times, the various dates of commencement; and

(b) make the Rules publicly available.

(6) Once the first Rules have been made under subsection (1), no further Rules can be made under that subsection.

90BA—South Australian Minister may make consequential Rules relating to rate of return instrument

(1) The South Australian Minister may make Rules that revoke or amend a Rule if the revocation or amendment is consequential on the enactment of the Statutes Amendment (National Energy Laws) (Binding Rate of Return Instrument) Act 2018 .

(2) Without limiting subsection (1), the South Australian Minister may make a rule providing that the rate of return on capital under a rate of return instrument in force at the start of a regulatory period applies throughout the period.

(3) Section 34(3) applies to Rules made under this section in the same way it applies to Rules made by the AEMC.

(4) As soon as practicable after making Rules under this section, the South Australian Minister must—

(a) publish notice of the making of the Rules in the South Australian Government Gazette; and

(b) make the Rules publicly available.

(5) The notice referred to in subsection (4)(a) must state—

(a) the date on which the Rules commence operation; and

(b) if different Rules will commence operation on different dates, those dates.

(6) Rules may only be made under this section on the recommendation of the MCE.

(7) Once the first Rules have been made under subsection (1), no further Rules can be made under that subsection.

(8) In this section—

regulatory period means the period specified in a network revenue or pricing determination to be the regulatory period;

South Australian Minister means the Minister in right of the Crown of South Australia administering Part 2 of the National Electricity (South Australia) Act 1996 of South Australia.

90C—South Australian Minister to make initial Rules related to smart meters

(a) the smart meter amendments;

(b) any other subject contemplated by, or consequential on, the smart meter amendments.

(2) Rules may only be made under subsection (1) on the recommendation of the MCE.

(3) Section 34(3) applies to Rules made under subsection (1) in the same way as it applies to Rules made by the AEMC.

(4) As soon as practicable after making Rules under subsection (1), the South Australian Minister must—

(b) make the Rules publicly available.

(5) Once the first Rules have been made under subsection (1), no further Rules can be made under that subsection.

90D—South Australian Minister may make initial Rules relating to implementation of NERL and NERR

(a) retail support obligations between regulated distribution system operators and retailers;

(b) credit support arrangements between regulated distribution system operators and retailers;

(d) any other matter consequential on the making of the National Energy Retail Law or the National Energy Retail Rules or on the application of that Law or those Rules in a participating jurisdiction.

(2) The South Australian Minister may make Rules that amend the Rules made under subsection (1) for any purpose that is necessary or consequential on the application of the National Energy Retail Law or the National Energy Retail Rules in a participating jurisdiction.

(3) Rules in the nature of a derogation may be made under this section even though there may not have been a request for a derogation.

(4) Section 34(3) applies to Rules made under this section in the same way as it applies to Rules made by the AEMC.

(5) As soon as practicable after making Rules under this section, the South Australian Minister must—

(a) publish notice of the making of the Rules in the South Australian Government Gazette; and

(b) make the Rules publicly available.

(6) The notice referred to in subsection (5)(a) must state—

(a) the date on which the Rules commence operation; or

(b) if different Rules will commence operation on different dates, those dates.

(7) Rules may only be made under this section on the recommendation of the MCE.

(8) Rules cannot be made under this section once any one of the participating jurisdictions applies the National Energy Retail Law as a law of that jurisdiction.

90DA—South Australian Minister to make initial Rules relating to regulatory sandboxing

(a) for or with respect to—

(i) the regulatory sandboxing amendments; and

(ii) any other subject contemplated by, or necessary or expedient for the regulatory sandboxing amendments; and

(b) that revoke or amend a Rule as a consequence of the enactment of the regulatory sandboxing amendments.

(2) section 34(3) applies to Rules made under subsection (1) in the same way as it applies to Rules made by the AEMC.

(3) As soon as practicable after making Rules under this section, the South Australian Minister must—

(a) publish notice of the making of the Rules in the South Australian Government Gazette; and

(b) make the Rules publicly available.

(4) The notice referred to in subsection (3)(a) must state—

(a) the date on which the Rules commence operation; or

(b) if different Rules will commence operation on different dates, those dates.

(5) Rules may only be made under subsection (1) on the recommendation of the MCE.

(6) Once the first Rules have been made under subsection (1), no further Rules can be made under that subsection.

(7) In this section—

regulatory sandboxing amendments means the amendments made to this Law by the Statutes Amendment (National Energy Laws) (Regulatory Sandboxing) Act 2022 .

90E—South Australian Minister to make initial Rules relating to Energy Consumers Australia

(a) for or with respect to Energy Consumers Australia (including provisions for its funding); and

(b) for or with respect to any other subject contemplated by, or consequential on, the ECA amendments; and

(2) Section 34(3) applies to Rules made under subsection (1) in the same way as it applies to Rules made by the AEMC.

(3) As soon as practicable after making Rules under subsection (1), the South Australian Minister must—

(a) publish notice of the making of the Rules in the South Australian Government Gazette; and

(b) make the Rules publicly available.

(4) The notice referred to in subsection (3)(a) must state—

(a) the date on which the Rules commence operation; or

(b) if different Rules will commence operation on different dates, those dates.

(5) The Rules made under subsection (1) may only be made on the recommendation of the MCE.

(6) Once the first Rules have been made under subsection (1), no further Rules can be made under that subsection.

90EA—South Australian Minister to make initial Rules relating to Retailer Reliability Obligation

(a) for or with respect to—

(i) the Retailer Reliability Obligation amendments; and

(ii) any other subject contemplated by, or consequential on, the Retailer Reliability Obligation amendments; and

(b) that revoke or amend a Rule as a consequence of the enactment of the Retailer Reliability Obligation amendments.

(2) Rules may be made under subsection (1) only on the recommendation of the MCE.

(3) For the purposes of subsection (1), a reference in section 34(1) to the national electricity system is taken to be a reference to the national electricity system or a local electricity system (as the context requires).

(4) Rules in the nature of a derogation may be made under subsection (1) even though there may not have been a request for a derogation.

(5) Rules made under subsection (1) may be differential Rules.

(6) Section 34(3) applies to Rules made under subsection (1) in the same way as it applies to Rules made by the AEMC.

(7) If the Minister makes Rules under subsection (1), the Minister cannot make another Rule under that subsection.

(8) In this section—

differential Rule means a Rule that—

(a) varies in its terms as between—

(i) the national electricity system; and

(ii) 1 or more, or all, of the local electricity systems; or

(b) does not have effect with respect to 1 or more of those systems;

local electricity system means—

(a) an electricity system in this jurisdiction prescribed or declared in or under the application Act of this jurisdiction to be a local electricity system; and

(b) the generating systems and other facilities owned, controlled or operated in this jurisdiction connected to that local electricity system;

Retailer Reliability Obligation amendments means the amendments made to this Law by the National Electricity (South Australia) (Retailer Reliability Obligation) Amendment Act 2019 .

90EB—South Australian Minister to make initial Rules relating to stand-alone power systems

(a) for or with respect to the stand-alone power system amendments; and

(b) for or with respect to any other subject contemplated by, or necessary or expedient for, the stand-alone power system amendments; and

(2) Section 34(3) applies to Rules made under subsection (1) in the same way as it applies to Rules made by the AEMC.

(3) As soon as practicable after making Rules under subsection (1), the South Australian Minister must—

(a) publish notice of the making of the Rules in the South Australian Government Gazette; and

(b) make the Rules publicly available.

(4) The notice referred to in subsection (3)(a) must state—

(a) the date on which the Rules commence operation; or

(b) if different Rules will commence operation on different dates, those dates.

(5) The Rules made under subsection (1) may only be made on the recommendation of the MCE.

(6) Once the first Rules have been made under subsection (1), no further Rules can be made under that subsection.

(7) In this section—

stand-alone power system amendments means the amendments made to this Law by the Statutes Amendment (National Energy Laws) (Stand-Alone Power Systems) Act 2021 .

90EC—South Australian Minister to make initial Rules relating to Ministerial reliability instrument

(a) for or with respect to—

(i) the Ministerial reliability instrument amendments; and

(ii) any other subject contemplated by, or necessary or expedient for, the Ministerial reliability instrument amendments; and

(b) that revoke or amend a Rule as a consequence of the enactment of the Ministerial reliability instrument amendments.

(2) Section 34(3) applies to Rules made under subsection (1) in the same way as it applies to Rules made by the AEMC.

(4) Rules in the nature of a derogation may be made under subsection (1) even though there may not have been a request for a derogation.

(5) Rules made under subsection (1) may be differential Rules.

(6) As soon as practicable after making Rules under this section, the South Australian Minister must—

(a) publish notice of the making of the Rules in the South Australian Government Gazette; and

(b) make the Rules publicly available.

(7) The notice referred to in subsection (6)(a) must state—

(a) the date on which the Rules commence operation; or

(b) if different Rules will commence operation on different dates, those dates.

(8) Rules may only be made under subsection (1) on the recommendation of the MCE.

(9) Once the first Rules have been made under subsection (1), no further Rules can be made under that subsection.

(10) In this section—

differential Rule means a Rule that—

(a) varies in its terms as between—

(i) the national electricity system; and

(ii) 1 or more, or all, of the local electricity systems; or

(b) does not have effect with respect to 1 or more of those systems;

local electricity system means—

(a) an electricity system in this jurisdiction prescribed or declared in or under the application Act of this jurisdiction to be a local electricity system; and

(b) the generating systems and other facilities owned, controlled or operated in this jurisdiction connected to that local electricity system;

Ministerial reliability instrument amendments means the amendments made to this Law by the National Electricity (South Australia) (Ministerial Reliability Instrument) Amendment Act 2023 .

90ED—South Australian Minister may make initial Rules relating to national electricity objective

(1) The Minister in right of the Crown of South Australia administering Part 2 of the National Electricity (South Australia) Act 1996 of South Australia may, within 9 months after the commencement of this section—

(a) make Rules for or with respect to any matter or thing necessary or expedient to implement the amended objective; and

(b) make Rules for or with respect to any other subject contemplated by, or necessary or expedient for implementing, the amended objective; and

(c) make Rules that revoke or amend a Rule as a consequence of the enactment of the Statutes Amendment (National Energy Laws) (Emissions Reduction Objectives) Act 2023 of South Australia.

(2) Rules in the nature of a derogation may be made under subsection (1) even though there may not have been a request for a derogation.

(3) Section 34(3) applies to the making of Rules under subsection (1) as if the Rules being made under subsection (1) were Rules being made by the AEMC.

(4) As soon as practicable after making Rules under subsection (1), the Minister referred to in that subsection must—

(a) publish notice of the making of the Rules in the South Australian Government Gazette; and

(b) make the Rules publicly available.

(5) The notice referred to in subsection (4)(a) must state—

(a) the date on which the Rules commence operation; or

(b) if different Rules will commence operation on different dates, those dates.

(6) The Rules made under subsection (1) may only be made on the recommendation of the MCE.

(7) If the Minister referred to in subsection (1) makes Rules under that subsection, the Minister cannot make another Rule under that subsection.

(8) In this section—

amended objective means the national electricity objective as in force on the commencement of this section.

90EF—South Australian Minister to make initial Rules relating to wholesale market monitoring matters

(1) The Minister in right of the Crown of South Australia administering Part 2 of the National Electricity (South Australia) Act 1996 of South Australia may make Rules for the following:

(a) the making of—

(i) market monitoring information orders; and

(ii) wholesale market monitoring guidelines;

(b) the way the AER consults—

(i) on the wholesale market monitoring guidelines under section 18EO(3); and

(ii) the public, under section 18EH, before making a market monitoring information order.

(2) Section 34(3) applies to Rules made under subsection (1) in the same way as it applies to Rules made by the AEMC.

(3) As soon as practicable after making Rules under subsection (1), the South Australian Minister must—

(a) publish notice of the making of the Rules in the South Australian Government Gazette; and

(b) make the Rules publicly available.

(4) The notice referred to in subsection (3)(a) must state—

(a) the date on which the Rules commence operation; or

(b) if different Rules will commence operation on different dates, those dates.

(5) The Rules made under subsection (1) may only be made on the recommendation of the MCE.

(6) Once the first Rules have been made under subsection (1), no further Rules can be made under that subsection.

90EG—South Australian Minister to make initial Rules relating to orderly exit management

(1) The Minister in right of the Crown of South Australia administering Part 2 of the National Electricity (South Australia) Act 1996 of South Australia may make Rules for matters or things necessary or expedient for the following:

(a) the making of mandatory operation directions under Part 8AA Division 2;

(b) the information that must be given to the AER, or otherwise disclosed, under Part 8AA Division 3;

(d) the administration of the OEM fund under Part 8AA Division 4 Subdivision 2;

(e) payments to and by MOD generators under section 118AY;

(f) the orderly exit management cost recovery mechanism under Part 8AA Division 4 Subdivision 4.

(2) Section 34(3) applies to Rules made under subsection (1) in the same way as it applies to Rules made by the AEMC.

(3) As soon as practicable after making Rules under subsection (1), the South Australian Minister must—

(a) publish notice of the making of the Rules in the South Australian Government Gazette; and

(b) make the Rules publicly available.

(4) The notice referred to in subsection (3)(a) must state—

(a) the date on which the Rules commence operation; or

(b) if different Rules will commence operation on different dates, those dates.

(5) The Rules made under subsection (1) may only be made on the recommendation of the MCE.

(6) Once the first Rules have been made under subsection (1), no further Rules can be made under that subsection.

Subdivision 2—Rules made by Minister from time to time

90F—South Australian Minister may make Rules on recommendation of MCE and Energy Security Board

(2) The MCE may only recommend the making of Rules under subsection (1) if—

(a) the Rules are for or with respect to any matter or thing referred to in section 34 and Schedule 1 to this Law; and

(b) the Energy Security Board has recommended to the MCE that it recommend the making of the Rules under subsection (1).

(3) For the purposes of subsection (2), references in section 34(1) to the national electricity system will be taken to be references to the national electricity system or a local electricity system (as the context requires).

(4) The Energy Security Board may only make a recommendation for the purposes of subsection (2)(b) in relation to Rules if—

(a) the Rules are in connection with any of the following:

(i) energy security and reliability of the NEM or long-term planning for the NEM;

(ii) energy security and reliability of a local electricity system or long-term planning for a local electricity system; and

(b) the Energy Security Board is satisfied that the Rules are consistent with the national electricity objective; and

(c) the Energy Security Board has undertaken consultation on the Rules in accordance with any requirements determined by the MCE.

(5) In considering whether Rules are consistent with the national electricity objective, the Energy Security Board must regard the reference in the national electricity objective to the national electricity system as a reference to—

(a) the national electricity system; or

(b) 1 or more, or all, of the local electricity systems; or

as the Energy Security Board considers appropriate in the circumstances, having regard to the nature, scope or operation of the Rules.

(6) Rules in the nature of a derogation may be made under this section even though there may not have been a request for a derogation.

(7) Rules made under subsection (1) may be differential Rules.

(8) Section 34(3) applies to Rules made under subsection (1) in the same way as that section applies to Rules made by the AEMC.

(9) As soon as practicable after making Rules under this section, the South Australian Minister must—

(a) publish notice of the making of the Rules in the South Australian Government Gazette; and

(b) make the Rules publicly available.

(10) The notice referred to in subsection (9)(a) must state—

(a) the date on which the Rules commence operation; or

(b) if different Rules will commence operation on different dates, those dates.

(11) In this section—

differential Rule means a Rule that—

(a) varies in its terms as between—

(i) the national electricity system; and

(ii) 1 or more, or all, of the local electricity systems; or

(b) does not have effect with respect to 1 or more of those systems,

but is not a jurisdictional derogation, participant derogation or Rule that has effect with respect to an adoptive jurisdiction for the purpose of section 91(8);

local electricity system means—

(a) an electricity system in this jurisdiction prescribed or declared in or under the application Act of this jurisdiction to be a local electricity system; and

(b) the generating systems and other facilities owned, controlled or operated in this jurisdiction connected to that local electricity system.

Division 3—Procedure for the making of a Rule by the AEMC

91—Initiation of making of a Rule

(1) The AEMC may make a Rule at the request of any person, the MCE or the Reliability Panel.

Note—

Section 34 and Schedule 1 to this Law specify the subject matter for Rules.

(2) The AEMC must not make a Rule without a request under subsection (1) unless—

(a) it considers the Rule corrects a minor error in the Rules; or

(b) it considers the Rule involves a non-material change to the Rules; or

(c) the Rule is in respect of any matter that is prescribed by the Regulations as a matter on which it may make a Rule on its own initiative.

(3) A Minister of a participating jurisdiction, after consulting with the Ministers of the other participating jurisdictions, may request the AEMC to make a jurisdictional derogation in respect of the jurisdiction of which he or she is a Minister.

(4) The Reliability Panel may only request the AEMC to make a Rule that relates to its functions.

Note—

Section 38(2) describes the functions of the Reliability Panel.

(5) A person conferred a right, or on whom an obligation is imposed, under the Rules (including a Registered participant) may request the AEMC to make a participant derogation that relates to, as the case requires—

(a) that person; or

(b) a class of person of which that person is a member.

(6) AEMO may itself, or on behalf of itself and a Registered participant or a class of Registered participant, request the AEMC to make a participant derogation that relates to (as the case requires)—

(a) it; or

(b) it and the Registered participant; or

(7) A request for a Rule regulating AEMO's declared network functions may only be made by—

(a) AEMO; or

(b) a declared transmission system operator that is a party to a network agreement with AEMO; or

(8) The AEMC may only make a Rule that has effect with respect to an adoptive jurisdiction if satisfied that the proposed Rule is compatible with the proper performance of AEMO's declared network functions.

(9) The AEMC may only make a Rule that affects the allocation of powers, functions and duties between AEMO and a declared transmission system operator if—

(a) AEMO consents to the making of the Rule; or

(b) the Rule is requested by the Minister of the relevant adoptive jurisdiction.

91A—AEMC may make more preferred Rule in certain cases

The AEMC may make a Rule that is different (including materially different) from a market initiated proposed Rule (a more preferable Rule ) if the AEMC is satisfied that, having regard to the issue or issues that were raised by the market initiated proposed Rule (to which the more preferable Rule relates), the more preferable Rule will or is likely to better contribute to the achievement of the national electricity objective.

91B—AEMC may make Rules that are consequential to a Rule request

(1) Despite section 91(2), the AEMC may, having regard to a request to make a Rule under section 91(1), make a Rule under this Law, the National Gas Law or the National Energy Retail Law that is necessary or consequential, or corresponds, to the Rule.

(2) For the purposes of this Part, the AEMC must treat a Rule it may make under subsection (1) as if it were part of the Rule to be made on that request.

92—Contents of requests for Rules

(1) A request for the making of a Rule—

(a) must contain the information prescribed by the Regulations or the Rules (or both); and

(ab) must, subject to section 92A, be accompanied by the fee prescribed by the Regulations (if any); and

(b) may be accompanied by a draft of the Rule to be made.

(2) A request for the making of a participant derogation must specify a date on which the participant derogation, if made, will expire.

(3) A request for the making of a jurisdictional derogation may specify a date on which the jurisdictional derogation, if made, will expire.

92A—Waiver of fee for Rule requests

The AEMC may waive the payment of any fee prescribed by the Regulations for the purposes of section 92.

93—Consolidation of 2 or more Rule requests

(1) If the AEMC considers it necessary or desirable that 2 or more requests for the making of a Rule should be dealt with together, the AEMC may—

(a) treat those requests as 1 request for the purposes of this Part (a consolidated Rule request ); or

(b) treat any later request as a submission in relation to the earliest Rule request.

(2) For the purposes of this Part, the AEMC may treat a consolidated Rule as being received by it on the day it receives either the first or last of the Rule requests forming part of the consolidated Rule request.

94—Initial consideration of request for Rule

(1) Subject to this Part, as soon as practicable after receiving a request for the making of a Rule, the AEMC must consider whether—

(a) the request for the Rule appears to—

(i) contain the information prescribed by the Regulations or the Rules (or both); and

(ii) not be misconceived or lacking in substance; and

(b) the subject matter of the request appears to be for or with respect to a matter in respect of which the AEMC may make a Rule under this Law; and

Note—

Section 34 and Schedule 1 to this Law specify the subject matter for Rules.

(i) a Rule made, or a request for the making of a Rule under section 91(1) not proceeded with, in the 12 months immediately before the date of receipt of the request; or

(ii) another request for the making of a Rule under section 91(1) in respect of which the AEMC is taking action under this Part; and

(d) in the case of a request for a trial Rule—the subject matter of the request appears to relate to the subject matter of—

(i) a trial waiver granted by the AER; or

(ii) an application for a trial waiver that has been received by the AER (but that has not been granted at the time of the request for the trial Rule).

(2) If the AEMC considers that—

(a) in the case of a request for the making of any Rule—having regard to the matters set out in subsection (1), it should not take any action under this Division in respect of the request; or

(b) in the case of a request for the making of a trial Rule—it should not take any action under this Division in respect of the request on the basis that—

(i) the trial project to which the request relates—

(A) is unlikely to be carried out; or

(B) offers no reasonable prospect of leading to better services and outcomes for consumers of electricity; or

(ii) the trial Rule requested—

(A) is unnecessary to enable the trial project to be undertaken (including, for example, because the trial project could be undertaken under a trial waiver); or

(B) is unlikely to enable the trial project to be undertaken; or

the AEMC must make a decision to that effect and inform the person or body, in writing, that requested the Rule of that decision.

(3) Despite subsection (1) or (2), the AEMC may make a decision to the effect that it should not take any action under this Division in respect of the request for the making of the Rule if the person or body that made the request has not complied with a notice in accordance with section 94A.

(4) In making a decision under subsection (3), the AEMC must have regard to any representation it receives under section 94A(4).

(5) A decision under subsection (2) or (3) must—

(a) set out the reasons for the decision; and

(b) be given to the person or body that made the request without delay; and

(6) Subject to this Part, if the AEMC considers that, having regard to the matters set out in subsection (1), it should take action under this Division in respect of the request for the making of the Rule, the AEMC must publish notice of the request for the making of a Rule in accordance with section 95.

(7) The AEMC must, as soon as practicable after receiving a request for the making of a trial Rule, consult with AEMO on the matter.

94A—AEMC may request further information from Rule proponent in certain cases

(1) This section applies if the AEMC—

(a) receives a request for the making of a Rule under section 91(1); and

(b) considers, having regard to the nature and content of the request, that further information is required from the person or body that has made the request to assist it to understand the request's purpose or content.

(2) The AEMC may, by notice in writing, request the person or body that made the request under section 91(1) to provide the AEMC further information.

(3) A notice under subsection (2) must specify—

(a) the kind of information the AEMC requires from the person or body; and

(b) the time within which that information must be provided to the AEMC.

(4) A person or body given a notice under this section may make a written representation to the AEMC as to why it cannot provide the information specified in the notice within the time specified in the notice.

95—Notice of proposed Rule

(1) This section applies if the AEMC—

(a) considers that it should take action under this Division in respect of a request for the making of a Rule; or

(b) forms an intention to make an AEMC initiated Rule.

(1a) The AEMC must publish—

(a) notice of the request or intention (as the case requires); and

(b) a draft of the proposed Rule; and

(2) A notice published under this section must—

(a) invite written submissions and comments from any person or body in relation to the proposed Rule by the date specified in the notice by the AEMC, being a date that is not less than 4 weeks from the date the notice is published; and

(b) contain any other information prescribed by the Regulations.

(3) Nothing in this Division is to be taken as requiring the AEMC to publish notices under this section in the same order as it—

(a) considers that it should take action under this Division in respect of a request for the making of a Rule; or

(b) forms an intention to make an AEMC initiated Rule.

96—Publication of non-controversial or urgent final Rule determination

(1) Subject to this section, if the AEMC considers that—

(a) an AEMC initiated Rule is a non-controversial Rule; or

(b) a request for a Rule is a request for a non-controversial Rule; or

the AEMC may make the relevant Rule in accordance with this Division (except sections 98 to 101) and as if the period of time within which the final Rule determination in respect of the relevant Rule must be published were 8 weeks from the date of publication of the notice under section 95.

(2) Before making a Rule as set out in subsection (1), the AEMC must include in a notice under section 95 a statement to the effect that the AEMC may make the relevant Rule if the AEMC does not receive a written request, and reasons, not to do so from any person or body within 2 weeks of publication of that notice.

(3) The AEMC must not make a Rule in accordance with this section if, following publication of a notice under section 95 containing a statement to the effect set out in subsection (2)—

(a) the AEMC receives a written request not to do so; and

(b) the reasons set out in that request are not, in its opinion, misconceived or lacking in substance.

(4) If the AEMC is of the opinion that the reasons given by a person or body in a written request for it not to make the non-controversial Rule or urgent Rule are misconceived or lacking in substance, the AEMC must—

(a) make a decision to that effect; and

(b) give the person or body its reasons, in writing, for that decision without delay.

(5) If the AEMC is of the opinion that the reasons given by a person or body in a written request for it not to make the non-controversial Rule or urgent Rule, are not misconceived or lacking in substance, the AEMC must publish a notice to the effect that it will make the relevant Rule in accordance with this Division (other than this section).

96AA—Publication of final Rule determination for trial Rule

(1) If the AEMC considers that a request for a Rule is a request for a trial Rule, the AEMC may make the relevant Rule in accordance with this Division (except sections 98 to 101) and as if the period of time within which the final Rule determination in respect of the relevant Rule must be published were 10 weeks from the date of publication of the notice under section 95.

(2) Sections 96 and 96A do not apply to a request for a trial Rule.

96A—"Fast track" Rules where previous public consultation by electricity market regulatory body or an AEMC review

(1) This section applies if—

(a) an electricity market regulatory body has—

(i) made a request for the making of a Rule under section 91(1); and

(ii) consulted with the public on the nature and content of the request before making that request; or

(b) a person or the MCE has made a request for the making of a Rule under section 91(1) on the basis of—

(i) a recommendation for the making of a Rule contained in a MCE directed review; or

(ii) a conclusion for the making of a Rule contained in an AEMC Rule review.

(2) The AEMC may take action under this Division in respect of the request without complying with section 95(2)(a) or 98 if it is of the opinion that—

(a) in the case where the request has been made by an electricity market regulatory body in the circumstances described in subsection (1)(a)—the consultation conducted by the electricity market regulatory body was adequate, having regard to—

(i) the nature and content of that request; and

(ii) the kind of consultation conducted by the electricity market regulatory body;

(b) in the case where the request has been made by a person or the MCE in the circumstances described in subsection (1)(b)—

(i) the request reflects, or is consistent with, the relevant recommendation contained in the MCE directed review or relevant conclusion in the AEMC Rule review (as the case requires); and

(ii) there was adequate consultation with the public by the AEMC on the content of the relevant recommendation or relevant conclusion during the MCE directed review or AEMC Rule review (as the case requires).

(3) To avoid doubt—

(a) section 94 applies to a request for the making of a Rule to which this section applies; and

(b) section 97 does not apply to a request for the making of a Rule to which this section applies.

97—Right to make written submissions and comments

Any person or body, within the period specified in a notice under section 95, may make a written submission or comment in relation to the proposed Rule to which the notice relates.

98—AEMC may hold public hearings before draft Rule determination

(1) The AEMC may (but need not), at any time after publication of a notice under section 95 and before making a draft Rule determination, hold a hearing in relation to any proposed Rule.

(2) Notice of a hearing held under this section must—

(a) be published; and

(b) contain the information prescribed by the Regulations (if any).

99—Draft Rule determinations

(1) The AEMC must make a draft Rule determination before making a final Rule determination in relation to the proposed Rule.

(1a) Subject to this Part, the AEMC must, within 10 weeks after the date specified in a notice under section 95, publish—

(a) the draft Rule determination; and

(b) notice of the making of the draft Rule determination.

(1b) In the case of a proposed Rule to which section 96A applies, the AEMC must publish the draft Rule determination and notice of the making of the draft Rule determination within 5 weeks after the date notice under section 95(1a) is published.

(2) A draft Rule determination must contain—

(a) the reasons of the AEMC as to whether or not it should make the proposed Rule, including—

(i) in the case where the proposed Rule is not a proposed more preferable Rule, the reasons of the AEMC as to whether it is satisfied the proposed Rule will or is likely to contribute to the achievement of the national electricity objective; and

(ii) in the case of a proposed more preferable Rule, the reasons of the AEMC as to whether it is satisfied the proposed more preferable Rule will or is likely to better contribute to the achievement of the national electricity objective than the market initiated Rule request to which the more preferable Rule relates; and

(iii) if the AEMC is required to take into account the form of regulation factors or the revenue and pricing principles, the reasons of the AEMC taking those factors or principles (as the case requires) into account; and

(iv) the reasons of the AEMC having regard to any relevant MCE statement of policy principles; and

(v) the reasons of the AEMC having regard to any other matters the AEMC considers relevant; and

(b) if the AEMC determines to make a Rule, a draft of the Rule to be made; and

(3) The draft of the Rule to be made need not be the same as the draft of the proposed Rule to which the notice under section 95 relates.

(4) A notice referred to in subsection (1a) must—

(a) invite written submissions and comments from any person or body in relation to the determination within a period specified by the AEMC, being a period not less than 6 weeks from the date of publication of the notice; and

(b) include a statement to the effect that any interested person or body may request, in writing within one week after the publication of the notice, the AEMC to hold a hearing in accordance with section 101; and

100—Right to make written submissions and comments in relation to draft Rule determination

Any person or body, within the period specified in a notice under section 99(1a)(b), may make a written submission or comment in relation to a draft Rule determination to which the notice relates.

101—Pre-final Rule determination hearings

(1) The AEMC may (but need not), at any time after publication of a notice under section 99(1a)(b) and before making a final Rule determination, hold a hearing in relation to a draft Rule determination.

(1a) In addition, any person or body may request, in writing, within 1 week after the publication of a notice under section 99(1a)(b), the AEMC to hold a hearing in relation to a draft Rule determination.

(2) Despite subsection (1), the AEMC may decide not to a hold a hearing in relation to a draft Rule determination.

(2a) Without limiting the reasons why the AEMC may decide not to hold a hearing in relation to a draft Rule determination, the AEMC may decide not to hold a hearing if—

(a) the person or body that requests the AEMC to hold a hearing does not make a written submission or comment in accordance with section 100; and

(b) no other person or body requests the AEMC to hold a hearing.

(3) If the AEMC decides not to hold a hearing after a request under subsection (2), it must give the person or body that requested the hearing its reasons, in writing, for declining that person's or body's request.

(4) If the AEMC decides to hold a hearing, or agrees to hold a hearing after a request under subsection (1a), the AEMC must—

(a) appoint a date (being not later than 3 weeks after the date of publication of the notice under section 99), time and place for the holding of the hearing; and

(b) publish a notice of that date, time and place.

102—Final Rule determinations

(1) Subject to section 102A, the AEMC must make a final Rule determination as to whether to make a proposed Rule.

(1a) Subject to this Part, the AEMC must, within 6 weeks after the period for written submissions or comments in relation to the draft Rule determination ends, publish—

(a) the final Rule determination; and

(b) notice of the making of the final Rule determination.

(2) A final Rule determination must contain—

(a) the reasons of the AEMC as to whether or not it should make a Rule, including—

(i) in the case where the Rule to be made is not a more preferable Rule, the reasons of the AEMC as to whether it is satisfied the Rule will or is likely to contribute to the achievement of the national electricity objective; and

(ii) in the case where the Rule to be made is a more preferable Rule, the reasons of the AEMC as to whether it is satisfied the more preferable Rule to be made will or is likely to better contribute to the achievement of the national electricity objective than the market initiated Rule request to which the more preferable Rule relates; and

(iiia) if the AEMC is required to take into account the innovative trial principles, the reasons of the AEMC taking those principles into account; and

(iv) the reasons of the AEMC having regard to any relevant MCE statement of policy principles; and

(v) the reasons of the AEMC having regard to any other matters the AEMC considers relevant; and

(b) any other matters that are prescribed by the Regulations.

(3) A notice referred to in subsection (1a) must contain the information prescribed by the Regulations.

102A—Proposal to make more preferable Rule

(1) If, in view of the response to a draft Rule determination, the AEMC proposes to make a more preferable Rule, the AEMC may—

(a) make, and publish notice of, a draft Rule determination in respect of the proposed more preferable Rule; or

(b) make, and publish notice of, a final Rule determination for the proposed more preferable Rule.

(2) The final Rule determination, or further draft Rule determination, and the related notice, must be published within 6 weeks after the end of the period for submissions or comments on the earlier draft Rule determination.

103—Making of Rule

(1) Subject to this section, if the AEMC, in its final Rule determination, determines to make a Rule, the AEMC must make the relevant Rule as soon as practicable after the publication of the final Rule determination.

(2) Notice of the making of the Rule must be published in the South Australian Government Gazette as soon as practicable after the making of the Rule.

(3) The Rule that is made in accordance with subsection (1) need not be the same as the draft of the proposed Rule to which a notice under section 95 relates or the draft of a Rule contained in a draft Rule determination.

(4) In the case of—

(a) a participant derogation; or

(b) a jurisdictional derogation where the request for the derogation specified a date on which the derogation will expire,

the AEMC must not make the derogation unless that derogation specifies a date on which it will expire.

(5) The AEMC must not make a trial Rule unless the date on which the Rule will expire (which must be no more than 5 years after the date on which the trial Rule commences operation) is specified in the Rule.

104—Operation and commencement of Rule

A Rule made under section 103 commences operation on the day the relevant notice is published in the South Australian Government Gazette or on any day after that day that is provided for in the relevant notice or the Rule.

104A—Extension of trial Rule

(1) Subject to this section, the AEMC may, on request, extend, by notice, the date on which a trial Rule will expire (the expiry date ) to a later date, being a date that falls not more than the period prescribed by the Regulations after the expiry date.

(2) Before extending the expiry date of a trial Rule, the AEMC—

(a) must have regard to the innovative trial principles; and

(b) must consult with the AER; and

(c) if the AEMC considers that the trial Rule, or the trial project to which the trial Rule relates, may impact on AEMO's operation of the national electricity system and national electricity market—must consult with AEMO; and

(d) may consult with any other person.

(3) A request under subsection (1) must—

(a) be made to the AEMC at least 60 days before the expiry date; and

(b) specify the length of the extension required.

(4) A notice under subsection (1) must—

(a) be published; and

(b) specify the later date referred to in subsection (1).

(5) The expiry date of a trial Rule may only be extended once under subsection (1).

104B—AEMC may impose requirements on proponent of trial project on making trial Rule

(1) The AEMC may, in connection with making a trial Rule, by notice, impose requirements on a person or body that proposes to undertake the trial project (a proponent ) to which the trial Rule relates.

(2) Without limiting subsection (1), the AEMC may impose a requirement that 1 or more reports be submitted to the AER in relation to the trial project.

(3) A notice under subsection (1) must—

(a) be published; and

(b) comply with any other requirements prescribed by the Regulations.

(4) A proponent to which requirements imposed under this section apply must comply with those requirements.

(5) If a proponent breaches subsection (4) and, as a result of the breach, the AER recommends that a trial Rule be revoked before the date on which the Rule will expire, the AEMC may—

(a) revoke the trial Rule; or

(b) vary or revoke a requirement imposed on the proponent, or impose further requirements on the proponent.

104C—AEMC may revoke trial Rule on recommendation of AER

(1) The AEMC may, on the recommendation of the AER, revoke a trial Rule in accordance with this Part.

(2) This section is in addition to, and does not limit, section 104B.

104D—Special provision for revocation of trial Rule

(1) Division 1 Subdivision 2, Division 3 and Division 4 do not apply to the revocation of a trial Rule by the AEMC under section 104B(5)(a) or 104C(1).

(2) As soon as practicable after revoking a trial Rule under section 104B(5)(a) or 104C(1), the AEMC must—

(a) publish notice of the revocation, specifying the date on which the revocation takes effect, on its website; and

(b) publish reasons for the revocation on its website.

105—Rule that is made to be published on website and made available to the public

On publication of a notice in accordance with section 103(2), the AEMC must, without delay—

(a) publish the Rule on its website; and

(b) make copies of the Rule available to the public at its offices.

106—Evidence of the National Electricity Rules

A document purporting to be a copy of—

(a) the National Electricity Rules; or

(b) the initial National Electricity Rules; or

endorsed with a certificate to which the seal of the AEMC has been duly affixed certifying the document is such a copy, is evidence that the document is such a copy.

Division 4—Miscellaneous provisions relating to Rule making by the AEMC

107—Extensions of periods of time in Rule making procedure

(1) Despite anything to the contrary in this Part, the AEMC may, by notice, extend a period of time specified in Division 3 if the AEMC considers that a request for a Rule raises issues of sufficient complexity or difficulty or there is a material change in circumstances such that it is necessary that the relevant period of time specified in Division 3 be extended.

(2) A notice under subsection (1) must—

(a) be published; and

(b) set out the period of time specified in Division 3 to be extended; and

(2a) A notice under subsection (1) may be published at the same time as a notice under section 95.

(3) The AEMC may only extend a period of time under this section before the expiry of that time.

107A—AEMC may extend period of time for making of final Rule determination for further consultation

(1) This section applies if—

(a) a person or body raises an issue in—

(i) a submission or comment in relation to a draft Rule determination; or

(ii) a hearing held under section 98 or 101; and

(b) the AEMC considers the issue raised by the person or body requires further public consultation in relation to the proposed Rule or draft Rule determination.

(2) Despite anything to the contrary in this Part and without limiting section 107, the AEMC may, by notice, extend the period of time specified in section 102 within which it must make a final Rule determination.

(3) A notice under subsection (2) must—

(a) be published; and

(b) specify a new period of time to apply in the place of the period of time specified in section 102; and

(d) invite written submissions and comments from any person or body by the date specified in the notice.

(4) The new period of time must not have the effect of extending the relevant period of the time specified in section 102 by more than 4 weeks.

(5) The AEMC may only extend the period of time under this section before the expiry of the time specified in section 102.

(6) Any person or body, within the period specified in a notice under subsection (2) may make a written submission or comment in relation to the issue specified in the notice.

108—AEMC may publish written submissions and comments unless confidential

(1) Subject to this section, the AEMC may publish any information in any written submission or comment given to it under this Part unless—

(a) the person or body who gave the information, claims, when giving it to the AEMC, that it contains confidential information; and

(b) the AEMC decides that the written submission or comment contains confidential information.

(2) A written submission or comment given to the AEMC under this Part that has been claimed under this section to contain confidential information, and that the AEMC has decided contains confidential information, may be published if that information is omitted.

(3) If information is omitted from a published written submission or comment given to the AEMC under this Part as being confidential information, a note to that effect must be included in the submission or comment at the place in the submission or comment from which the information is omitted.

Note—

See also section 31 of this Law and section 24 of the Australian Energy Market Commission Establishment Act 2004 of South Australia.

108A—AEMC must publicly report on Rules not made within 12 months of public notification of requests

(1) This section applies if the AEMC—

(a) publishes a notice under section 95 in respect of a request for the making of a Rule; but

(b) does not make a final Rule determination in respect of that request within 12 months after the publication of that notice (the report trigger date ).

(2) The AEMC must prepare a report on the request as soon as practicable after the report trigger date.

(3) A report prepared under this section must—

(a) contain the reasons why the final Rule determination has not been made within 12 months after the publication of the notice under section 95; and

(b) specify when the AEMC considers it will make the final Rule determination; and

108B—Subsequent rule making by AEMC

Nothing in Division 2 Subdivision 2 is to be taken to affect the power of the AEMC to make Rules (in accordance with this Law and the Regulations) for or with respect to any matter or thing referred to in section 34 and Schedule 1 to this Law (whether before or after Rules have been made under that Division).

Part 8—Safety and security of the National Electricity System

109—Definitions

In this Part—

AEMO load shedding procedures means procedures developed under section 112;

jurisdictional load shedding guidelines means guidelines prepared under section 111;

sensitive loads means the loads or classes of loads specified as such in jurisdictional load shedding guidelines.

110—Appointment of jurisdictional system security coordinator

(1) A Minister of this jurisdiction may, for the purposes of this Law and the Rules, appoint a person to be the jurisdictional system security coordinator for this jurisdiction.

(2) An appointment under subsection (1) must be in writing.

(3) AEMO is eligible for appointment as a jurisdictional system security coordinator for 1 or more participating jurisdictions.

(4) In its capacity as a jurisdictional system security coordinator for a participating jurisdiction, AEMO is subject to direction by the Minister for the relevant jurisdiction with respect to—

(a) jurisdictional load shedding guidelines; and

(b) the order in which loads are to be shed or restored; and

(d) the sensitive loads that are not to be shed or restored without the Minister's approval.

111—Jurisdictional system security coordinator to prepare jurisdictional load shedding guidelines

(1) The jurisdictional system security coordinator must, subject to the Rules, prepare, maintain, and if necessary, update guidelines in relation to the shedding, and restoration, of loads in this jurisdiction for—

(a) the purpose of enabling AEMO to maintain power system security; or

(b) reasons of public safety.

(2) The guidelines must specify—

(a) loads or classes of loads as sensitive loads; and

(b) requirements in relation to the shedding and restoration of loads that AEMO must comply with, in accordance with the Rules, in the event that it is necessary to do so for AEMO to maintain power system security, or for reasons of public safety.

(3) The guidelines must also specify the following lists—

(a) a list of sensitive loads or classes of sensitive loads in this jurisdiction—

(i) to be shed and restored and the order in which those loads are to be shed or restored in the event that it is necessary to do so for AEMO to maintain power system security, or for reasons of public safety; and

(ii) which must not be shed, or the restoration of which must not be prevented, without the prior approval of the jurisdictional system security coordinator; and

(b) a list of loads or classes of loads (other than sensitive loads) to be shed and restored in this jurisdiction and the order in which those loads are to be shed or restored in the event that it is necessary to do so for AEMO to maintain power system security, or for reasons of public safety.

(4) If AEMO is not the jurisdictional system security coordinator, the coordinator must give a copy of the jurisdictional load shedding guidelines and any updated guidelines to AEMO.

(5) The jurisdictional load shedding guidelines must reflect the terms of any relevant agreement or determination about load shedding under section 115A.

112—AEMO to develop load shedding procedures for each participating jurisdiction

(1) AEMO must, in accordance with the Rules, develop, maintain, and if necessary, update procedures in relation to the manner in which loads or classes of loads (including sensitive loads) will be shed or restored—

(a) in this jurisdiction in accordance with the jurisdictional load shedding guidelines; and

(b) as between participating jurisdictions.

(2) AEMO (if not the jurisdictional system security coordinator) must give to the jurisdictional system security coordinator a copy of the AEMO load shedding procedures, and any updated procedures, applicable to this jurisdiction.

(3) The procedures must be consistent with the relevant jurisdictional load shedding guidelines.

113—Exchange of information

(1) For the purpose of enabling AEMO to maintain power system security, or for reasons of public safety, the relevant authorities may exchange information about loads and load shedding in the participating jurisdictions.

(2) A relevant authority must pass on information about loads and load shedding to the Minister of a particular participating jurisdiction so far as the information may be necessary—

(a) to enable the Minister—

(i) to manage the safety and security of those parts of the national electricity system in the participating jurisdiction; or

(ii) to manage the safety and security of a gas system in the participating jurisdiction; or

(b) for reasons of public safety.

(3) The Minister may give information received under subsection (2) to other Ministers or officials responsible for public safety, or power system or gas system safety or security, in a participating jurisdiction.

(4) A person to whom information is disclosed under subsection (3) must not further disclose the information unless the further disclosure is to a Minister or officials responsible for public safety, or power system or gas system safety or security in a participating jurisdiction.

(5) In this section—

information includes confidential information relating to loads or classes of loads given to AEMO by a Registered participant;

information about loads and load shedding means information about—

(a) loads and classes of loads in a particular participating jurisdiction; and

(b) the possibility or probability that the supply of electricity will prove insufficient to meet the loads or some other reason for load shedding may arise; and

(i) the Rules; or

(ii) jurisdictional load shedding guidelines; or

(iii) AEMO load shedding procedures;

relevant authority means—

(a) AEMO; or

(b) a jurisdictional system security coordinator.

114—AEMO to ensure maintenance of supply of sensitive loads

AEMO must use its reasonable endeavours to ensure that the national electricity system (other than regulated stand-alone power systems) is operated in a manner that maintains the supply to sensitive loads.

115—Shedding and restoring of loads

(1) Subject to subsection (2), if AEMO considers that it is necessary for loads to be shed in this jurisdiction to maintain power system security, or for reasons of public safety, AEMO may direct the shedding or restoration of loads (including sensitive loads) in this jurisdiction in accordance with the AEMO load shedding procedures developed for this jurisdiction.

(2) AEMO must use reasonable endeavours to obtain the approval of the jurisdictional system security coordinator before directing the shedding, or preventing the restoration of, sensitive loads or a class of sensitive loads that the jurisdictional system security coordinator has listed in the jurisdictional load shedding guidelines as requiring the coordinator's approval before—

(a) those loads or classes of loads may be shed; or

(b) the restoration of those loads or classes of loads may be prevented.

(3) The jurisdictional system security coordinator must not unreasonably withhold the approval referred to in subsection (2).

(4) Subsections (2) and (3) are inapplicable where AEMO is itself the jurisdictional system security coordinator.

115A—Determination of customer load shedding arrangement

(1) AEMO may, with the approval of the Minister of a participating jurisdiction, enter into an agreement with a Registered participant to determine the arrangements to apply to customer load shedding in the relevant participating jurisdiction where the available supply of electricity is, or is likely to become, less than sufficient for the reasonable requirements of the community.

(2) If AEMO is unable to reach agreement with a Registered participant about load shedding arrangements within 6 months after AEMO offers to enter into an agreement with the Registered participant for that purpose, the Minister may determine those arrangements.

(3) The Minister must, at least 14 days before arrangements take effect under subsection (2), give the Registered participant and AEMO written notice of the arrangements.

(4) The Minister may appoint a person to review and advise the Minister on any proposed arrangements under this section.

(5) In determining load shedding arrangements, the Minister must take into account the need to—

(a) protect the national electricity system; and

(b) ensure the safe and effective supply of electricity; and

(d) increase the available supply of electricity; and

(e) regulate the use of the available supply of electricity, having regard to the needs of the community.

(6) AEMO must publish any arrangements determined under this section on its website.

116—Actions that may be taken to ensure safety and security of national electricity system

(1) AEMO may, if it considers that it is necessary—

(a) to maintain power system security; or

(b) for reasons of public safety,

direct a Registered participant, or authorise a person to direct a Registered participant, or subject to subsection (2), authorise a person, to take one or more relevant actions in accordance with the Rules.

(2) A person authorised under subsection (1) must not take any relevant action unless the person has directed the Registered participant to take the action and the Registered participant has failed to take the action within a reasonable period.

(2a) A direction under this section should, if practicable, be consistent with load shedding arrangements agreed or determined under section 115A.

(3) AEMO does not incur any civil monetary liability for any relevant action taken by a Registered participant in accordance with a direction given by it under this section unless the direction is given in bad faith.

(4) A person who directs a Registered participant to take a relevant action, or who takes a relevant action in accordance with an authorisation under subsection (1), does not incur any civil monetary liability for the action taken by the Registered participant or by the person unless the person gives the direction, or takes the relevant action, in bad faith.

(5) A Registered participant does not incur any civil monetary liability for a relevant action taken in accordance with a direction given to it under this section unless that action is taken in bad faith

(6) In this section—

relevant action means—

(a) to switch off, or re-route, a generator;

(b) to call equipment into service;

(d) to commence operation or maintain, increase or reduce active or reactive power output;

(e) to shut down or vary operation;

(f) to, in accordance with the Rules and any procedures made in accordance with the Rules in relation to load shedding, shed or restore load;

(g) to do any other act or thing necessary to be done to maintain power system security or for reasons of public safety.

117—AEMO to liaise with Minister of this jurisdiction and others during an emergency

(1) AEMO must, if required to do so by reason, or as a result, of an emergency direction, liaise with—

(a) a Minister or the jurisdictional system security coordinator of this jurisdiction; or

(b) if the Minister or jurisdictional system security coordinator has nominated another person as the person with whom AEMO must liaise, that person.

(2) In this section—

emergency direction means any direction given or issued, or order given, under or in accordance with any legislation of this jurisdiction, or instrument made under or for the purposes of that legislation, during an emergency in this jurisdiction.

118—Obstruction and non-compliance

(1) A person must not, without reasonable excuse, obstruct or hinder a person in the exercise of a power under section 116.

Maximum penalty:

(a) in the case of a natural person—$34 000;

(b) in the case of a body corporate—$170 000.

Note—

(2) A person must not, without reasonable excuse, fail to comply with a direction under section 116.

Maximum penalty:

(a) in the case of a natural person—$34 000;

(b) in the case of a body corporate—$170 000.

Note—

Part 8AA—Orderly exit management

Division 1—Preliminary

118AA—Definitions

In this Part—

affiliate , of a Registered participant, means the following:

(a) a related body corporate of the Registered participant;

(b) a related entity of the Registered participant;

(i) the Registered participant; or

(ii) another affiliate of the Registered participant;

authorised deposit-taking institution means an authorised deposit-taking institution within the meaning of the Banking Act 1959 of the Commonwealth;

contribution determination —see section 118AZB(1);

contribution order —see section 118AZC(1);

distribution network service provider has the meaning given by the Rules;

early closure proposal means—

(a) a notice given to AEMO, after 31 December 2020, in accordance with the Rules that a Registered participant, registered as a Generator, expects a relevant generating unit to cease supplying electricity—

(i) earlier than the expected closure date previously notified to AEMO; and

(ii) within 7 years of the date of the notice to AEMO; or

(b) an application by a Registered participant for a notice exemption for a relevant generating unit;

financial vehicle means the entity established by the Minister under section 118AS;

generator payment instrument means a payment order made under section 118AY(1)(b);

mandatory operation direction —see section 118AD(1);

mandatory operation period —see section 118AD(2)(e);

Minister means the Minister of the participating jurisdiction in which the relevant generating unit, to which an early closure proposal applies, is located;

MOD generating unit means a relevant generating unit subject to a mandatory operation direction;

notice exemption means an exemption given to a Registered participant by the AER, in accordance with the Rules, from the requirement to notify AEMO of the intended closure date of a relevant generating unit at least 42 months before the intended closure date;

OEM payments —see section 118AZC(1);

orderly exit management fund means the fund established by the financial vehicle in accordance with section 118AT;

payment order means an order made under section 118AY(1);

related body corporate has the same meaning as in the Corporations Act 2001 of the Commonwealth;

related entity has the same meaning as in the Corporations Act 2001 of the Commonwealth;

relevant generating unit means a thermal power turbine and related plant used in the production of electricity that, in accordance with the Rules, is classified as a scheduled generating unit;

Rules obligations means the obligations imposed on a Registered participant by a Rule made under section 118AD(3)(c);

voluntary agreement means a voluntary agreement under section 118AH.

118AB—Application of Part to jurisdiction

(1) This Part does not apply in a participating jurisdiction unless a regulation, made by the Governor of the participating jurisdiction acting on the recommendation of the Minister, is in force specifying for the jurisdiction—

(a) the date from which this Part applies; and

(b) the extent to which this Part applies; and

(2) An agreement made between the Minister and a Registered participant before this Part applies in the participating jurisdiction may be prescribed by a regulation made under this section as a voluntary agreement.

Division 2—Mandatory operation direction

118AC—Generating units that may be subject to mandatory operation direction

The Minister may issue a mandatory operation direction for a relevant generating unit if the relevant Registered participant has submitted an early closure proposal for the unit.

118AD—Mandatory operation direction

(1) The Minister may issue a mandatory operation direction requiring a Registered participant to operate 1 or more relevant generating units if the Minister is satisfied that giving the direction is necessary—

(a) for the national electricity system or a region within the national electricity system—

(i) to maintain power system security; or

(ii) to maintain system reliability; or

(b) for reasons of public safety.

(2) A mandatory operation direction must be given in writing and include the following:

(a) the Registered participant to whom the direction applies;

(b) the relevant generating units to which the direction applies;

(d) the generating capacity that must be supplied by a relevant generating unit or a group of specified units;

(e) the period (a mandatory operation period ) for which a relevant generating unit must be operated, being—

(i) if the Registered participant submitted an early closure proposal for the generating unit prior to the commencement of this Part—a period of not more than 3 years after the closure date specified in the early closure proposal; or

(ii) if the Registered participant submitted an early closure proposal for the generating unit after the commencement of this Part—a period ending no later than the expected closure date previously notified to AEMO;

(f) the date the mandatory operation period commences;

(g) the circumstances in which the Minister must consider amending the direction.

(3) The Rules may—

(a) prescribe additional matters that must be included in a mandatory operation direction; and

(b) prescribe the circumstances, or the types of circumstance, that may be specified under subsection (2)(g); and

(c) prescribe obligations that must be complied with by a Registered participant who receives a mandatory operation direction; and

(d) make provision for the insurances that must be maintained in respect of a MOD generating unit; and

(e) make provision for the advice the Minister obtains from AEMO, including the following:

(i) the scope of advice;

(ii) matters that must be included in the advice;

(iii) the way the advice must be given.

(4) Before issuing a mandatory operation direction, the Minister—

(a) must obtain advice from AEMO on the following:

(i) the impact, or likely impact, of the closure of the relevant generating unit on—

(A) the security of the power system; and

(B) the reliability of the national electricity system;

(ii) alternatives to issuing the direction; and

(b) must be satisfied there are no reasonably practicable alternatives to issuing the direction; and

(d) may obtain and consider other information the Minister considers to be relevant; and

(e) must give the Registered participant to whom the direction applies and the AER a draft of the proposed direction and an opportunity to comment on the proposed direction.

(5) The Minister is not required to consider a comment made more than the prescribed number of days after a draft of the proposed direction is given to the Registered participant and the AER under subsection (4)(e).

(6) In this section—

maintenance of system reliability includes managing the risk of low probability events that may have a high impact;

prescribed number of days means—

(a) 20 business days; or

(b) the number of business days prescribed by the Rules.

118AE—Registered participant must comply with mandatory operation direction

(1) A Registered participant who receives a mandatory operation direction must comply with—

(a) the direction; and

(b) the Rules obligations.

Note—

This subsection is a civil penalty provision: See the definition of civil penalty provision in section 2AA(1).

(2) A Registered participant does not incur liability for breach of contract, breach of confidence or another civil wrong by complying with a mandatory operation direction, including the Rules obligations.

(3) Despite subsection (1), the Rules may prescribe—

(a) circumstances in which a Registered participant is not required to comply with a mandatory operation direction; and

(b) the information a Registered participant who is not required to comply with a mandatory operation direction must give the AER.

118AF—Minister to make information public

(1) The Minister must, when issuing a mandatory operation direction, make the following information publicly available in accordance with the Rules:

(a) the reasons the Minister is satisfied, under section 118AD(1), that giving the direction is necessary;

(b) a list of the energy projects considered before making the direction.

(2) The Minister must make the following information available in the way and at the time prescribed by the Rules:

(a) the advice received from AEMO under section 118AD(4)(a)(ii);

(b) other information prescribed by the Rules.

(3) In this section—

energy project includes the following:

(a) energy generation projects;

(b) energy storage projects;

118AG—AEMO to make information public

AEMO must make the advice given to the Minister under section 118AD(4)(a)(i) publicly available within 60 days after the advice is given to the Minister.

118AH—Voluntary agreement

(1) Before issuing a mandatory operation direction, the Minister must negotiate in good faith to seek agreement with the Registered participant for continued operation of the relevant generating units.

(2) If the Minister is satisfied, on reasonable grounds, that a Registered participant is not negotiating in good faith, the Minister may terminate the negotiations and issue a mandatory operation direction.

(3) The Minister does not fail to negotiate in good faith with a Registered participant only because the Minister takes 1 or more steps under section 118AD(4)—

(a) before or during the negotiations; or

(b) without the knowledge of the Registered participant.

(4) The Minister must, within 28 days after entering into a voluntary agreement, make publicly available the Minister's reasons for entering into the agreement.

Note—

Section 118AO requires a Registered participant to give certain information to the Minister and the AER at certain times, including at the direction of the Minister or the AER.

118AI—Mandatory operation direction applies to affiliates

(1) A mandatory operation direction, including the Rules obligations, applies to an affiliate of a Registered participant in the same way as the direction applies to the Registered participant if the affiliate provides services for 1 or more relevant generating units subject to the mandatory operation direction.

Note—

This subsection is a civil penalty provision: See the definition of civil penalty provision in section 2AA(1).

(2) An affiliate of a Registered participant provides services for a relevant generating unit if the affiliate supplies, contracts for or otherwise arranges the supply of the following for the operation or maintenance of the relevant generating unit:

(a) fuel, equipment and other goods;

(b) labour, labour hire and other services.

(3) An affiliate of a Registered participant does not incur liability for breach of contract, breach of confidence or any other civil wrong, by complying with a mandatory operation direction, including the Rules obligations.

118AJ—Amendment of mandatory operation direction

(1) The Minister may amend a mandatory operation direction by revoking the direction and issuing a new direction in accordance with section 118AD.

(2) When issuing a new mandatory operation direction under this section, the Minister is not required to comply with section 118AD(4)(a) to (d), 118AF(1)(b) or (2) or 118AG.

(3) The Rules may make provision for matters to be included in a mandatory operation direction reissued under this section.

118AK—Termination of mandatory operation direction

(1) The Minister may terminate a mandatory operation direction by giving the Registered participant subject to the direction and the AER written notice specifying—

(a) that the direction is terminated; and

(b) the date, not less than 3 months after the date of the notice, on which the termination takes effect.

(2) The Minister may terminate a mandatory operation direction—

(a) by agreement with the Registered participant subject to the direction; or

(b) if the Minister is satisfied, in accordance with the Rules, that effective compliance with the direction is no longer possible; or

(d) in circumstances prescribed by the Rules.

(3) The AER must, as soon as practicable after receiving a notice under subsection (1), publish the notice on its website.

(4) A Registered participant is not entitled to compensation, other than as provided for in the Rules, because of the termination of a mandatory operation direction.

118AL—Closure of generating unit after mandatory operation period

Immediately after the mandatory operation period applying to a MOD generating unit ends or is terminated under section 118AK—

(a) the Registered participant that operates the generating unit must cease operating the generating unit; and

(b) the Registered participant's registration under section 12 in relation to the generating unit ends.

118AM—Compliance with obligations after closure of generating unit

A Registered participant who is or was subject to a mandatory operation direction must, in accordance with the Rules, keep in place arrangements to ensure the Registered participant can, on the closure of a MOD generating unit—

(a) comply with all of the Registered participant's obligations associated with the generating unit; and

(b) meet all liabilities associated with the generating unit including liabilities arising from closing the unit.

Division 3—Information and reporting

118AN—AEMO and AER may disclose information

(1) The Minister may, for the purposes of this Part, direct AEMO and the AER to provide information and reports to the following:

(a) the Minister;

(b) each other.

(2) The Minister may disclose information obtained under this Part to the AER.

(3) AEMO and the AER are authorised to disclose information for the purposes of this Part.

(4) AEMO may disclose information to the AER about the technical performance and reliability of a relevant generating unit subject to a mandatory operation direction.

118AO—Information must be given to AER

(1) A Registered participant must give the AER prescribed information as follows:

(a) for a Registered participant who submits an early closure proposal after the commencement of this Part—when submitting the early closure proposal;

(b) for a Registered participant who submitted an early closure proposal after 31 December 2020 and before the commencement of this Part—within 28 days after being directed by the Minister or the AER to provide the information.

(2) Subsection (1)(a) does not apply to an early closure proposal for which the closure date is no more than 30 days earlier than the expected closure date previously notified to AEMO.

(3) The AER must—

(a) give a copy of the information received under this section to the Minister; and

(b) in accordance with the Rules, give a copy of the information received under this section to AEMO.

(4) The Minister or the AER may direct a Registered participant to provide—

(a) additional prescribed information; or

(b) an update of prescribed information previously provided to the AER.

(5) A Registered participant who receives a direction under subsection (4) must provide the information to—

(a) the Minister; and

(b) the AER.

(6) The Rules may make provision for the way information must be provided under this section.

(7) In this section—

prescribed information means information prescribed by the Rules.

Note—

Subsections (1) and (5) are civil penalty provisions: See the definition of civil penalty provision in section 2AA(1).

118AP—AER may request other information

(1) The AER may, by written notice, request a Registered participant to give the AER the following information:

(a) information the AER reasonably requires for its functions under this Part;

(b) other information prescribed by the Rules.

(2) A notice under this section may—

(a) be given in the form determined by the AER; and

(b) specify the way in which the information must be given.

(3) A Registered participant who receives a request under this section must comply with the request.

Note—

Subsection (3) is a civil penalty provision: See the definition of civil penalty provision in section 2AA(1).

118AQ—Information disclosure

(1) When the Minister issues a mandatory operation direction, the Minister must publish a notice that includes the following information:

(a) the Registered participant to whom the direction was issued;

(b) the relevant generating units to which the notice applies;

(d) the generating capacity that must be supplied by the relevant generating units;

(e) the period for which the relevant generating units must be operated;

(f) the circumstances in which the Minister must consider amending the direction;

(g) information prescribed by the Rules.

(2) If the Minister enters into a voluntary agreement the Minister must publish a notice containing information prescribed by the Rules.

(3) A notice under this section must be published as follows:

(a) in the Gazette;

(b) in the other ways determined by the Minister.

118AR—Annual performance report

(1) A Registered participant subject to a mandatory operation direction must, in accordance with the Rules, prepare an annual report setting out the following:

(a) the Registered participant's compliance with the direction;

(b) the technical condition of each relevant generating unit to which the direction applies;

(c) the duration, scope and cost of forecast maintenance for each relevant generating unit to which the direction applies;

(d) financial information prescribed by the Rules;

(e) information, prescribed by the Rules, about the fuel used in each relevant generating unit;

(f) other information prescribed by the Rules.

(2) The annual report prepared under this section must, as provided for in the Rules, be given to the following:

(a) the Minister;

(b) the AER;

Note—

Subsections (1) and (2) are civil penalty provisions: See the definition of civil penalty provision in section 2AA(1).

Division 4—Financial matters

Subdivision 1—Financial vehicle

118AS—Establishment and functions of financial vehicle

(1) The Minister must, within a reasonable time after a regulation is made under section 118AB, establish the financial vehicle in the way prescribed by the regulation.

(2) The financial vehicle has the following functions:

(a) functions set out in this Division;

(b) functions prescribed by the Rules.

(3) The financial vehicle must act in a commercially reasonable and prudent way.

Subdivision 2—Orderly exit management fund

118AT—Establishment of orderly exit management fund

(1) The financial vehicle must establish a fund called the orderly exit management fund.

(2) Money in the orderly exit management fund must be paid into an account kept with an authorised deposit-taking institution.

(3) The Rules may make provision for or with respect to the administration of the orderly exit management fund.

118AU—Payments into orderly exit management fund

The following money must be paid into the orderly exit management fund:

(a) all money received by the financial vehicle under a contribution order or a generator payment instrument;

(b) interest paid on money in the fund;

(c) all money appropriated by the Parliament of a participating jurisdiction, or advanced by the Treasurer of a participating jurisdiction, for payment into the fund;

(d) all money borrowed by the financial vehicle;

(e) other money required to be paid into the fund under the Regulations, the Rules or another law of a participating jurisdiction.

118AV—Payments from orderly exit management fund

(1) The following payments may be made from the orderly exit management fund:

(a) money required for the functions and obligations of the financial vehicle under this Part;

(b) money required for the functions and obligations of AEMO and the AER under this Part;

(c) money required to be paid from the fund by the Regulations, the Rules or another law of a participating jurisdiction.

(2) If, in the opinion of the financial vehicle, the orderly exit management fund contains more money than is required to make reasonably anticipated payments under subsection (1), the excess money in the fund must be—

(a) held as a credit against future OEM payments; or

(b) on the expiry of a mandatory operation direction—be returned to electricity consumers in the way provided for by the Rules.

118AW—Payments where mandatory operation direction not made

(1) This section applies if the Minister is satisfied there is a reasonably practicable alternative to issuing a mandatory operation direction.

(2) The Minister may direct the financial vehicle to make payments from the orderly exit management fund to meet reasonable costs associated with the reasonably practicable alternative.

(3) The Rules may make provision for payments under this section.

(4) In this section—

reasonably practicable alternative means the reasonably practicable alternative on which the Minister bases a decision to not issue a mandatory operation direction to a Registered participant.

118AX—Payments where voluntary agreement made

If the Minister makes a voluntary agreement, the Minister may direct the financial vehicle to make payments from the orderly exit management fund in accordance with the agreement.

Subdivision 3—Payments to and by MOD generators

118AY—Ministerial order

(1) Following the making of a mandatory operation direction, the Minister must, by 1 or more written orders made in accordance with the Rules, direct that the payments set out in the order—

(a) be made by the financial vehicle to a MOD generator; or

(b) be made—

(i) by the financial vehicle to a MOD generator; and

(ii) by a MOD generator to the financial vehicle.

(2) A payment order may specify the payments a MOD generator is to receive for the following:

(a) the reasonable costs directly related to operating and maintaining the relevant MOD generating unit and, in accordance with the Rules, a fair margin on those costs;

(b) a risk management margin, including risks associated with the relevant MOD generating unit being inoperable for 1 or more periods of time;

(3) Payments for subsection (2) must be determined by the AER in accordance with the Rules.

(4) The Rules may make provision for the following:

(a) the period of time in which payments under a payment order must be made, including periods before or after the applicable mandatory operation period;

(b) additional matters to be dealt with in a payment order;

(d) other matters that may be addressed in a generator payment instrument.

(5) A MOD generator does not, by complying with a payment order, incur liability for breach of contract, breach of confidence or any other civil wrong.

(6) A person subject to a payment order must comply with the order.

Note—

This subsection is a civil penalty provision: See the definition of civil penalty provision in section 2AA(1).

(7) The Minister may amend a payment order by revoking the order and making a new order.

(8) In this section—

MOD generator means a Registered participant subject to a mandatory operation direction.

118AZ—Excluded matter

A generator payment instrument is, under the Corporations Act 2001 of the Commonwealth, section 5F(1)(d), declared, for that Act, Chapter 7, to be an excluded matter.

Subdivision 4—Orderly exit management cost recovery mechanism

118AZA—Orderly exit management contributions

(1) The orderly exit management contributions to be made by a distribution network service provider comprise—

(a) amounts determined by the AER for payments under a payment order; and

(b) amounts determined by the Minister for payments made—

(i) to a Registered participant under a voluntary agreement; and

(ii) under section 118AW; and

(i) costs incurred by AEMO and the AER for advice, assessments, determinations, information and reports and other functions under this Part; and

(ii) the financial vehicle's reasonable exercise of functions under this Part; and

(d) amounts provided for in the Rules.

(2) The Rules may make provision for—

(a) the process the AER must follow when determining amounts for payments under a payment order; and

(b) the process the Minister must follow when determining amounts under subsection (1)(c).

118AZB—Public notice of orderly exit management contributions

(1) The AER must, in accordance with section 118AZA, determine the orderly exit management contribution to be paid by a distribution network service provider (a contribution determination ) for a financial year and make the determination publicly available—

(a) by no later than the date prescribed by the Rules; or

(b) if the Rules do not prescribe a date for paragraph (a)—at least 5 months before the beginning of the financial year for which the contribution is due.

(2) The Rules may provide for the process to be followed by the AER when making a contribution determination.

(3) If the AER does not make a contribution determination as required by subsection (1) the Minister may make the contribution determination and make it publicly available.

(4) A contribution determination must be made publicly available as follows:

(a) by publication in the Gazette;

(b) in the other ways determined by the AER or the Minister.

118AZC—Orderly exit management payments by distribution network service providers

(1) The financial vehicle may, by written order (a contribution order ), direct a distribution network service provider to make payments to the orderly exit management fund ( OEM payments ) in accordance with the contribution determination applying to the distribution network service provider.

(2) A contribution order must specify the following:

(a) the distribution network service provider required to make the OEM payments;

(b) the amount of each OEM payment;

(d) the way each OEM payment must be made;

(e) that each OEM payment must be made to the financial vehicle for payment into the orderly exit management fund;

(f) matters prescribed by the Rules.

(3) The Rules may provide for the way an OEM payment may be recovered by the financial vehicle from a distribution network service provider, including the period of time over which the payment may be recovered.

(4) An OEM payment is recoverable by the financial vehicle as a debt in a court of competent jurisdiction.

118AZD—Cost recovery by distribution network service providers

The Rules may make provision for a distribution network service provider to—

(a) recover the following from electricity consumers:

(i) an amount equivalent to the OEM payments made by the distribution network service provider under section 118AZC;

(ii) an amount payable under another law of a participating jurisdiction;

(iii) an amount payable as a condition of a licence or authority held in a participating jurisdiction; and

(b) refund an amount, or part of an amount, paid by electricity consumers.

Division 5—Miscellaneous

118AZE—Minister not required to take certain actions before making mandatory operation direction

(1) The Minister is not required to comply with sections 118AD(4)(a) to (d), 118AF(2)(a) and 118AH before issuing a mandatory operation direction for a relevant generating unit if, on the application of this Part in the participating jurisdiction, there are less than 30 months before the expected early closure date of the generating unit.

(2) The Minister is not required to comply with section 118AH before issuing a mandatory operation direction for a relevant generating unit if—

(a) there are less than 30 months before the expected early closure date of the generating unit; and

(b) the Minister is of the opinion that the anticipated closure of the relevant generating unit represents an unacceptable risk to—

(i) power system security; or

(ii) national electricity system reliability.

(3) In this section—

expected early closure date , of a generating unit, means the early closure date for the generating unit as previously notified to AEMO in an early closure proposal.

118AZF—No liability for enactment or operation of Part

No action, claim or demand lies, or may be made or allowed by or in favour of a person, against the Crown, the Minister or another person exercising functions under this Part, including a rule made under this Part, for or in relation to any damage, loss or injury sustained or alleged to be sustained because of—

(a) the enactment of this Part or its operation; or

(b) anything done, or purporting to be done, under this Part or a rule made under this Part.

118AZG—Review of Part

(1) The AEMC must periodically review this Part to determine whether the policy objectives of the Part remain valid and whether the terms of the Part remain appropriate for securing those objectives.

(2) Reviews under this section must consider the following matters:

(a) the contribution of the OEM framework to the orderly exit of generating units from the market;

(b) the contribution of the OEM framework to mitigating disruption in the market from the early exit of generating units from the market;

(d) the cost of the OEM framework;

(e) matters prescribed by the Rules.

(3) Reviews under this section are to be undertaken as follows:

(a) the first review must be undertaken as soon as possible after the period of 5 years from the commencement of this Part;

(b) each subsequent review must commence 5 years after the commencement of the immediately preceding review.

(4) A report on the outcome of each review is to be given to the MCE within 12 months after the commencement of the review.

(5) Each member of the MCE from a mandatory operation jurisdiction must table a report under this section in each House of the jurisdiction's Parliament within 3 months after the report is given to the MCE.

(6) With the prior approval of the MCE, the AEMC may postpone a review, for a period of up to 5 years, if it is satisfied the review is unlikely to be of value.

(7) In this section—

mandatory operation jurisdiction means a participating jurisdiction to which this Part applies;

OEM framework means this Part and Rules made under this Part.

118AZH—Consultation between NSW and ACT

The relevant Minister of New South Wales must consult with the relevant Minister of the Australian Capital Territory—

(a) before seeking advice from AEMO under section 118AD(4)(a); and

(b) before entering into a voluntary agreement or issuing a mandatory operation direction.

Part 8A—Smart metering services

Division 1—Interpretation

118A—Definitions

In this Part—

smart meter assessment means an assessment of the costs and benefits, or operational performance, or both, of different smart metering infrastructure and other related technologies, including devices designed to enable direct load control;

smart metering infrastructure means infrastructure (and associated systems) associated with the installation and operation of remotely read electricity metering and communications, including interval meters designed to transmit data to, and receive data from, a remote locality;

smart meter trials means trials of smart metering infrastructure and other related technologies, including devices designed to enable direct load control.

Division 2—Ministerial pilot metering determinations

118B—Ministerial pilot metering determinations

(1) A Minister of a participating jurisdiction may make a determination that requires a regulated distribution system operator that earns most of its revenue from the provision of electricity network services provided by means of a distribution system situated partly or wholly in that participating jurisdiction to conduct smart meter trials or undertake a smart meter assessment (or both).

(2) In making a Ministerial pilot metering determination, the Minister must have regard to—

(a) the national electricity objective; and

(b) any comments or submissions made to the Minister as part of the consultation conducted under section 118C.

(3) A Ministerial pilot metering determination must specify the regulated distribution system operator, or the class of regulated distribution system operator to which the determination applies (the relevant operator or relevant operators ).

(4) Without limiting subsection (1), a Ministerial pilot metering determination may—

(a) specify minimum standards of performance and service that must be met or investigated by the relevant operator or relevant operators in conducting smart meter trials;

(b) specify the nature and timing of the smart meter trials;

(c) in relation to information derived from a smart meter trial or a smart meter assessment, require the relevant operator or relevant operators to—

(i) subject to any conditions specified in the determination, provide that information to a person specified in the determination; or

(ii) make such information publicly available.

(5) A requirement of the kind referred to in subsection (4)(c) may require information that relates to a person—

(a) be provided to another person; or

(b) be made publicly available.

(6) However, a requirement referred to in subsection (4)(c) must not require the relevant operator to make the information publicly available in a manner that identifies the person to whom the information relates unless the relevant operator has the written consent of the person to do so.

(7) Subsection (6) does not apply to information that is in the public domain.

118C—Consultation with interested persons required before making Ministerial pilot metering determination

Before making a Ministerial pilot metering determination, the Minister must consult with a person or body that the Minister considers has an interest in the determination.

Division 4—Provisions applicable to Ministerial smart metering determinations

118F—Compliance with Ministerial smart metering determinations

(1) A regulated distribution system operator must comply with a Ministerial smart metering determination that applies to the operator.

(2) A regulated distribution system operator incurs, by complying with a Ministerial pilot metering determination, no liability for breach of contract, breach of confidence or any other civil wrong.

118G—Minister of participating jurisdiction must consult with other participating jurisdiction Ministers

A Minister of a participating jurisdiction must consult with the Ministers of the other participating jurisdictions before making a Ministerial smart metering determination.

118H—Content of Ministerial smart metering determinations

A Ministerial smart metering determination—

(a) may be of general or limited application;

(b) may differ according to differences in time, place and circumstances.

118I—Publication and giving of Ministerial smart metering determinations

As soon as practicable after a Ministerial smart metering determination is made the determination—

(a) must be published in the South Australian Government Gazette; and

(b) must be given to—

(i) every regulated distribution system operator to which it applies; and

(ii) the AER; and

(iii) the AEMC.

118J—When Ministerial smart metering determinations take effect

A Ministerial smart metering determination has effect on and after the day specified in the determination for the period specified in the determination.

118K—AEMC must publish Ministerial smart metering determination it receives on its website

The AEMC must publish a Ministerial smart metering determination on its website as soon as practicable after receiving it.

Part 9—Immunities

119—Immunity of AEMO and network service providers

(1) AEMO or an officer or employee of AEMO does not incur any civil monetary liability for an act or omission in the performance or exercise, or purported performance or exercise, of a function or power of AEMO under this Law or the Rules unless the act or omission is done or made in bad faith or through negligence.

(2) A network service provider or an officer or employee of a network service provider does not incur any civil monetary liability for an act or omission in the performance or exercise, or purported performance or exercise, of a system operations function or power unless the act or omission is done or made in bad faith or through negligence.

(3) The civil monetary liability for an act or omission of a kind referred to in subsection (1) or (2) done or made through negligence may not exceed the prescribed maximum amount.

(4) The Regulations may, for the purposes of subsection (3), without limitation—

(a) prescribe a maximum amount that is limited in its application to persons, events, circumstances, losses or periods specified in the Regulations;

(b) prescribe maximum amounts that vary in their application according to the persons to whom or the events, circumstances, losses or periods to which they are expressed to apply;

(5) AEMO or a network service provider may enter into an agreement with a person varying or excluding the operation of a provision of this section and, to the extent of that agreement, that provision does not apply.

(6) This section does not apply to any liability of an officer or employee of a body corporate to the body corporate.

(7) In this section—

system operations function or power means a function or power prescribed as a system operations function or power.

120—Immunity in relation to failure to supply electricity

(1) A Registered participant or AEMO, or an officer or employee of a Registered participant or AEMO, does not incur any civil monetary liability for any partial or total failure to supply electricity unless the failure is due to an act or omission done or made by the Registered participant or AEMO, or the officer or employee of a Registered participant or AEMO, in bad faith or through negligence.

(2) A Registered participant or AEMO may enter into an agreement with a person varying or excluding the operation of subsection (1) and, to the extent of that agreement, that subsection does not apply.

(2A) Subsection (2) does not apply in relation to an agreement between a retailer, or a regulated distribution system operator, and a person who is a small customer within the meaning of the National Energy Retail Law.

(3) This section does not apply—

(a) to AEMO or an officer or employee of AEMO in relation to an act or omission in the performance or exercise, or purported performance or exercise, of a function or power of AEMO under this Law or the Rules; or

(b) to a network service provider or an officer or employee of a network service provider in relation to an act or omission in the performance or exercise, or purported performance or exercise, of a system operations function or power; or

(4) In this section—

system operations function or power has the same meaning as in section 119.

120A—Immunity in relation to use of computer software

(1) A protected person incurs no civil monetary liability for loss or damage suffered by a Registered participant or other person in consequence of the use of computer software to operate the national electricity market.

(2) In this section—

protected person means any of the following:

(a) AEMO;

(b) an officer, employee or agent of AEMO.

120B—Immunity from liability—dispute resolution

(1) A protected person incurs no civil monetary liability for an act or omission in the exercise of powers or functions related to dispute resolution under the Rules unless the act or omission is done or made in bad faith.

(2) In this section—

protected person means—

(a) a person appointed under the Rules to manage and facilitate dispute resolution under or in relation to the Rules; or

(b) an arbitrator, mediator or other person appointed to resolve disputes, or assist in dispute resolution, under or in relation to the Rules; or

121—Immunity from personal liability of AEMC officials

(1) No personal liability attaches to an AEMC official for an act or omission in good faith in the performance or exercise, or purported performance or exercise of a function or power under this Law, the Regulations or the Rules.

(2) A liability that would, but for subsection (1), lie against an AEMC official lies instead against the AEMC.

(3) In this section—

AEMC official means—

(a) a member of the AEMC;

(b) the chief executive of the AEMC;

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 Competition and Consumer Act 2010 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

(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.

Note—

This section is a civil penalty provision.

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

(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

(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;

(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—$3 400;

(b) in the case of a body corporate—$17 000.

Note—

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

(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: $6 300.

Note—

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: $6 300.

Note—

(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—

(d) proposes to appear, or has appeared, as a witness before the AER.

Maximum penalty: $6 300.

Note—

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

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

must not engage in conduct for the purpose of preventing or hindering the access of another person to a regulated network service.

Note—

Subsection (1) is a civil penalty provision.

(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.

Example—

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 AEMO 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.

159—Penalty privilege

If an individual has a privilege against self-exposure to a penalty, other than for a criminal offence, the individual is not excused from doing any of the following on that ground:

(a) providing information under this Law, the Regulations or the Rules;

(b) producing a document under this Law, the Regulations or the Rules;

(d) answering a question under this Law, the Regulations or the Rules.

160—Court may grant relief from liability

If in any proceedings under this Law in which a person, other than a body corporate, may be liable for an offence or a civil penalty it appears to the Court that the person acted honestly and reasonably and, having regard to all the circumstances of the case, ought fairly to be excused, the Court may relieve the person either wholly or partly from liability on such terms as the Court thinks fit.

AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback