1Australian Energy Market Commission Establishment Act 2004

South Australia Australian Energy Market Commission Establishment Act 2004 An Act to establish the Australian Energy Market Commission; and for other purposes.

Contents Part 1—Preliminary 1 Short title 3 Interpretation 4 Crown to be bound Part 2—Australian Energy Market Commission 5 Australian Energy Market Commission 6 Functions 7 Operations outside State 8 Objectives 9 Independence 10 AEMC may publish statements, reports and guidelines 11 Memorandum of Understanding 12 Membership of AEMC 13 Terms and conditions of appointment 14 Acting Chairperson or Commissioner 15 Vacancies or defects in appointment 16 Chief executive 17 Other staff 18 Immunity 19 Consultants 20 Delegation 21 Meetings of AEMC 22 Disclosure of interest 23 Common seal and execution of documents 24 Confidentiality 25 Annual performance plan and budget 26 Accounts and audit 27 Annual report Part 5—Miscellaneous 48 Certain Acts not to apply 49 Regulations Legislative history

The Parliament of South Australia enacts as follows: Part 1—Preliminary 1—Short title This Act may be cited as the Australian Energy Market Commission Establishment Act 2004. 3—Interpretation (1) In this Act, unless the contrary intention appears— AEMC means the Australian Energy Market Commission established under section 5; AEMO means the Australian Energy Market Operator Limited (ACN 072 010 327); Chairperson means the Commissioner appointed to be Chairperson of the AEMC under section 12; Commissioner means the Chairperson or another Commissioner appointed to the AEMC under section 12; eligible MCE Minister means a Minister of the MCE eligible to vote on a question arising for decision by the MCE, in accordance with its procedures; Jurisdictional Energy Law means a law of the Commonwealth, or a State or Territory of the Commonwealth, that relates to energy and is prescribed by regulation for the purposes of this definition; 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); (c) 1 Minister from each Territory (totalling 2 Ministers), acting in accordance with its own procedures; National Electricity Application Act means— (a) the National Electricity (South Australia) Act 1996; or (b) the Electricity (National Scheme) Act 1997 of the Australian Capital Territory; or (c) the National Electricity (New South Wales) Act 1997 of New South Wales; or (d) the Electricity - National Scheme (Queensland) Act 1997 of Queensland; or (e) the Electricity - National Scheme (Tasmania) Act 1999 of Tasmania; or (f) the National Electricity (Victoria) Act 1997 of Victoria; or (g) an Act of the Commonwealth, or any other State or Territory of the Commonwealth, that applies the National Electricity Law as a law of that jurisdiction; National Electricity Law means the National Electricity Law as applied by a National Electricity Application Act; National Electricity Regulations means the National Electricity (South Australia) Regulations as applied by a National Electricity Application Act; National Electricity Rules means the National Electricity Rules as defined in section 2 of the National Electricity Law; National Energy Law means— (a) a National Electricity Application Act; or (b) the National Electricity Law; or (c) the National Electricity Regulations; or (d) the National Electricity Rules; or (e) a National Gas Application Act; or (f) the National Gas Law; or (g) the National Gas Regulations; or (h) the National Gas Rules; or (i) a National Energy Retail Law Application Act; or (j) the National Energy Retail Law; or (k) the National Energy Retail Regulations; or (l) the National Energy Retail Rules; National Energy Retail Law Application Act means— (a) the National Energy Retail Law (South Australia) Act 2011; or (b) any other Act of a State or Territory of the Commonwealth that applies the National Energy Retail Law set out in the Schedule to the National Energy Retail Law (South Australia) Act 2011, with or without modification and whether as in force at a particular time or as in force for the time being, as a law of that jurisdiction; 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 applying as a law of South Australia or as applied, with or without modification and whether as in force at a particular time or as in force for the time being, as a law of another jurisdiction; National Energy Retail Regulations means the National Energy Retail Regulations as defined in section 2 of the National Energy Retail Law; National Energy Retail Rules means the National Energy Retail Rules as defined in section 2 of the National Energy Retail Law; National Gas Application Act means— (a) the National Gas (South Australia) Act 2008; or (b) the Australian Energy Market Act 2004 of the Commonwealth; or (c) any other Act of a State or Territory of the Commonwealth that applies the National Gas Law set out in the Schedule to the National Gas (South Australia) Act 2008, with or without modification and whether as in force at a particular time or as in force for the time being, as a law of that jurisdiction; National Gas Law means the National Gas Law set out in the Schedule to the National Gas (South Australia) Act 2008 applying as a law of South Australia or as applied, with or without modification and whether as in force at a particular time or as in force for the time being, as a law of another jurisdiction; National Gas Regulations means regulations that, under a National Gas Application Act, apply as regulations for the purposes of a National Gas Law; National Gas Rules means the National Gas Rules as defined in section 2 of the National Gas Law; natural gas has the same meaning as in the National Gas Law; Territory means the Australian Capital Territory or the Northern Territory. (2) A reference in this Act to an Act, regulations or law of another jurisdiction is a reference to the Act, regulations or law as amended and in force for the time being, or to any Act, regulations or law enacted or made in substitution for the Act, regulations or law. (3) For the purposes of this Act, if the calculation of two‑thirds of the eligible MCE Ministers results in a fraction, two‑thirds of the eligible MCE Ministers will be the number resulting from rounding up that fraction. 4—Crown to be bound This Act binds the Crown, not only in right of South Australia but also, so far as the legislative power of the Parliament permits, the Crown in all its other capacities. Part 2—Australian Energy Market Commission 5—Australian Energy Market Commission (1) The Australian Energy Market Commission is established. (2) The AEMC— (a) is a body corporate; and (b) has perpetual succession and a common seal; and (c) is capable of suing and being sued in its corporate name. (3) The AEMC has all the powers of a natural person together with powers conferred on the AEMC by or under this Act, National Energy Laws or Jurisdictional Energy Laws. 6—Functions The AEMC has the following functions: (a) the rule-making, market development and other functions conferred on the AEMC under National Energy Laws or Jurisdictional Energy Laws; (b) the provision of advice to the MCE as requested by the MCE; (c) other functions conferred on the AEMC under this or any other Act or any other law; (d) other functions that are reasonably incidental to any of the foregoing. 7—Operations outside State The AEMC may perform its functions and exercise its powers in and outside the State. 8—Objectives The AEMC must, in the performance of its functions, have regard to any relevant objectives set out in National Energy Laws. 9—Independence (1) The AEMC is not subject to direction by the Minister in the performance of its functions. (2) Subsection (1) does not limit any provision of the National Energy Laws about the giving of directions to the AEMC by the MCE. 10—AEMC may publish statements, reports and guidelines The AEMC may publish statements, reports and guidelines relating to the performance of its functions. 11—Memorandum of Understanding (1) The AEMC may enter into a Memorandum of Understanding with other bodies for the purposes of facilitating and coordinating the performance of its functions. (2) The AEMC must ensure that the Memorandum of Understanding is published. 12—Membership of AEMC The AEMC is to consist of at least 3 and not more than 5 Commissioners appointed by the Governor on the recommendation of the Minister, of whom— (a) 1, who will be appointed to be the Chairperson, will be a person nominated for such appointment by at least two‑thirds of the eligible MCE Ministers; and (b) the remainder will be persons nominated for appointment by at least two‑thirds of the eligible MCE Ministers. 13—Terms and conditions of appointment (1) A Commissioner will be appointed— (a) for a term, not exceeding 5 years, specified in the instrument of appointment (and, at the expiration of a term of office, is eligible for reappointment); and (b) on conditions as to remuneration and other matters specified in the instrument of appointment. (1a) The term of office and conditions of appointment of a Commissioner must be matters that the Minister has recommended to the Governor in accordance with a resolution of the MCE. (2) The Governor may remove a Commissioner from office— (a) for breach of, or non-compliance with, a condition of appointment; or (b) for misconduct; or (c) for failure or incapacity to carry out official functions satisfactorily. (3) The office of a Commissioner becomes vacant if the Commissioner— (a) dies; or (b) completes a term of office and is not reappointed; or (c) resigns by written notice to the Minister; or (d) is removed from office under subsection (2). (4) If the office of a Commissioner becomes vacant, the following provisions apply: (a) if, immediately before the occurrence of the vacancy, the AEMC consisted of 3 or fewer Commissioners, a person must be appointed in accordance with this Act to the vacant office; (b) if, immediately before the occurrence of the vacancy, the AEMC consisted of more than 3 Commissioners and— (i) the vacancy occurs in the office of the Commissioner appointed to be the Chairperson, a person must be appointed in accordance with this Act to the vacant office; or (ii) the vacancy occurs in the office of any other Commissioner, the office ceases to exist on the occurrence of the vacancy. 14—Acting Chairperson or Commissioner (1) The Minister may appoint a Commissioner or an Acting Commissioner nominated by at least two‑thirds of the eligible MCE Ministers as an Acting Chairperson to act in the office of the Chairperson during any period for which the Chairperson is unable to perform official functions or the office of the Chairperson is vacant. (2) A person appointed under subsection (1) has, while acting in the office of the Chairperson, all the functions and powers of the Chairperson. (3) The Minister may appoint a person nominated by at least two‑thirds of the eligible MCE Ministers as an Acting Commissioner to act in the office of a Commissioner appointed, or to be appointed, under section 12(b) during any period for which— (a) the Commissioner is unable to perform official functions; or (b) the office is vacant and the vacancy is required to be filled in accordance with section 13(4)(a). (5) Without limiting any other power of appointment under this section, the Minister may appoint a person nominated by at least two‑thirds of the eligible MCE Ministers as an Acting Commissioner to act in the office of a Commissioner during any period for which that Commissioner is acting in the office of the Chairperson. (6) A person appointed under subsection (3) or (5) has, while acting in the office of a Commissioner, all the functions and powers of a Commissioner. (7) The conditions of appointment of an Acting Chairperson or Acting Commissioner will be as determined by the Minister in accordance with a resolution of the MCE. (8) An act or proceeding of the AEMC is not invalid by reason only of a defect in appointment under this section or the fact that a person appointed under this section acts in the office concerned when the circumstances for so acting have not yet arisen or have ceased to exist. 15—Vacancies or defects in appointment An act or proceeding of the AEMC is not invalid by reason only of a vacancy in its membership or a defect in the appointment of a Commissioner. 16—Chief executive (1) There is to be a chief executive of the AEMC. (2) The chief executive is to be appointed by the AEMC on conditions determined by the AEMC. (3) The chief executive is, subject to the control and direction of the AEMC, responsible for giving effect to the decisions and policies of the AEMC. 17—Other staff The members of the staff of the AEMC (other than the chief executive) are to be persons appointed by the AEMC on conditions determined by the AEMC. 18—Immunity (1) No personal liability attaches to a Commissioner or a member of the staff of the AEMC for an act or omission in good faith in the performance or exercise, or purported performance or exercise, of a function or power associated with the activities of the AEMC under this Act. (2) A liability that would, but for subsection (1), lie against a person lies instead against the AEMC. 19—Consultants The AEMC may engage consultants on conditions considered appropriate by the AEMC. 20—Delegation (1) Subject to this section and the National Energy Laws, the AEMC may delegate functions or powers to a Commissioner or the chief executive or some other member of the staff of the AEMC. (2) A delegation under this section— (a) must be in writing; and (b) may be conditional or unconditional; and (c) is revocable at will; and (d) does not prevent the delegator from acting in any matter. 21—Meetings of AEMC (1) The Chairperson may convene as many meetings of the AEMC as he or she considers necessary for the efficient conduct of its affairs. (2) The Chairperson must convene a meeting of the AEMC if requested to do so in writing signed by the other Commissioners. (3) The Chairperson must preside at a meeting of the AEMC. (4) A quorum of the AEMC consists of one half of the total number of Commissioners (ignoring any fraction resulting from the division) plus 1. (5) A decision concurred in by a majority of the votes cast by the Commissioners present at a meeting of the AEMC is a decision of the AEMC. (6) Each Commissioner present at a meeting of the AEMC has 1 vote on a question arising for decision and, if the votes are equal, the Chairperson may exercise a second (or casting) vote. (7) If the AEMC so determines, a Commissioner or Commissioners may participate in, and form part of a quorum for, a meeting of the AEMC by means of any of the following methods of communication: (a) telephone; (b) closed circuit television; (c) another method of communication determined by the AEMC. (8) The AEMC must have accurate minutes kept of its meetings. (9) Subject to this Act, the AEMC may regulate its own procedure. 22—Disclosure of interest (1) If a Commissioner has any direct or indirect interest in a matter being considered, or about to be considered, by the AEMC, being an interest that could conflict with the proper performance of the Commissioner's functions in relation to a matter arising at a meeting of the AEMC, the Commissioner must as soon as practicable disclose the interest at a meeting of the AEMC. (2) The disclosure, and any decision made by the AEMC in relation to the disclosure, must be recorded in the minutes of the meeting. 23—Common seal and execution of documents (1) The common seal of the AEMC must not be affixed to a document except in pursuance of a decision of the AEMC and the affixing of the seal must be attested by the signatures of 1 or more Commissioners. (2) The AEMC may, by instrument under its common seal, authorise a Commissioner, an employee of the AEMC (whether nominated by name or by office or title) or any other person to execute documents on behalf of the AEMC subject to conditions and limitations (if any) specified in the instrument of authority. (3) Without limiting subsection (2), an authority may be given so as to authorise 2 or more persons to execute documents jointly on behalf of the AEMC. (4) A document is duly executed by the AEMC if— (a) the common seal of the AEMC is affixed to the document in accordance with this section; or (b) the document is signed on behalf of the AEMC by a person or persons in accordance with an authority conferred under this section. (5) Where an apparently genuine document purports to bear the common seal of the AEMC, it will be presumed in any legal proceedings, in the absence of proof to the contrary, that the common seal of the AEMC has been duly affixed to that document. 24—Confidentiality (1) The AEMC must take all reasonable measures to protect from unauthorised use or disclosure information— (a) given to it in confidence in or in connection with the performance of its functions or the exercise of its powers; or (b) that is obtained by compulsion in exercise of its powers. (2) For the purposes of subsection (1), the disclosure of information as required or permitted by a law of the State, or a law of the Commonwealth or another State or Territory of the Commonwealth, is taken to be authorised use and disclosure of the information. (3) Disclosing information to a person or body prescribed by the regulations for the purpose of this subsection is authorised use and disclosure of the information. (4) A person or body to whom information is disclosed under subsection (3) may use the information for any purpose connected with the performance of the person's, or body's, functions. (5) The AEMC may impose conditions to be complied with in relation to information disclosed under subsection (3). (6) For the purposes of subsection (1), the use or disclosure of information by a person for the purposes of performing the person's functions as— (a) a Commissioner or a member of the staff of the AEMC; or (b) a consultant engaged by the AEMC, is taken to be authorised use or disclosure of the information. (7) Regulations made for the purposes of this section may specify uses of information and disclosures of information that are authorised uses and authorised disclosures for the purposes of this section. (8) Nothing in subsections (2) to (7) limits what may constitute authorised use or disclosure of information. (9) Information that is classified as confidential by the AEMC under a National Energy Law is not liable to disclosure under the Freedom of Information Act 1991. 25—Annual performance plan and budget (1) The AEMC must, from time to time, prepare and submit to the Minister a performance plan and budget for the next financial year or for some other period determined by the Minister. (2) The plan and the budget must conform with any requirements of the Minister as to the form of the plan or budget or the matters to be addressed by the plan or budget. 26—Accounts and audit (1) The AEMC must ensure that proper accounts are kept in relation to its financial affairs and that financial statements are prepared in accordance with the Public Finance and Audit Act 1987. (2) The Auditor-General may at any time, and must at least once in each year, audit the accounts of the AEMC. 27—Annual report (1) The AEMC must, within 3 months after the end of each financial year, deliver to the Minister a report on its operations during that financial year. (2) The Minister must, on receipt of the report, deliver a copy of the report to each of the other Ministers who are members of the MCE. (3) The Minister must cause a copy of the report to be laid before both Houses of Parliament within 12 sitting days after receipt of the report. Part 5—Miscellaneous 48—Certain Acts not to apply (1) The Public Sector Act 2009 and the Public Sector (Honesty and Accountability) Act 1995 do not apply to or in relation to— (a) the AEMC; or (b) a Commissioner; or (c) the chief executive or other staff of the AEMC. (2) The State Procurement Act 2004 does not apply to or in relation to— (a) the AEMC or its operations or activities. 49—Regulations (1) The Governor may make such regulations as are contemplated by, or necessary or expedient for the purposes of, this Act. (2) The Governor may, by regulation, make additional provisions of a saving or transitional nature consequent on the enactment of the Statutes Amendment (Energy Consumers Australia) Act 2014. (3) A provision of a regulation made under subsection (2) may, if the regulations so provide, take effect from the commencement of this subsection or from a later day. (4) To the extent to which a provision takes effect under subsection (3) from a day earlier than the day of the publication of the regulation in the Gazette, the provision does not operate to the disadvantage of a person by— (a) decreasing the person's rights; or (b) imposing liabilities on the person. Legislative history Notes • Please note—References in the legislation to other legislation or instruments or to titles of bodies or offices are not automatically updated as part of the program for the revision and publication of legislation and therefore may be obsolete. • Earlier versions of this Act (historical versions) are listed at the end of the legislative history. • For further information relating to the Act and subordinate legislation made under the Act see the Index of South Australian Statutes or . Principal Act and amendments New entries appear in bold. Year No Title Assent Commencement 2004 24 Australian Energy Market Commission Establishment Act 2004 8.7.2004 22.7.2004 (Gazette 22.7.2004 p2593) 2007 49 Australian Energy Market Commission Establishment (Consumer Advocacy Panel) Amendment Act 2007 29.11.2007 1.7.2008 (Gazette 26.6.2008 p2552) 2008 19 National Gas (South Australia) Act 2008 26.6.2008 Pt 8 (s 22)—1.7.2008 (Gazette 26.6.2008 p2553) 2009 32 Statutes Amendment (Australian Energy Market Operator) Act 2009 25.6.2009 Pt 2 (ss 4—14) & Sch 1—1.7.2009 (Gazette 25.6.2009 p3001) 2009 84 Statutes Amendment (Public Sector Consequential Amendments) Act 2009 10.12.2009 Pt 19 (s 37)—1.2.2010 (Gazette 28.1.2010 p320) 2011 7 Statutes Amendment (National Energy Retail Law) Act 2011 17.3.2011 Pt 2 (s 4)—1.7.2012 (Gazette 28.6.2012 p2925) 2014 21 Statutes Amendment (Energy Consumers Australia) Act 2014 11.12.2014 Pt 2 (ss 4—20)—30.1.2015 (Gazette 18.12.2014 p6870) 2017 52 Australian Energy Market Commission Establishment (Governance) Amendment Act 2017 28.11.2017 19.12.2017 (Gazette 19.12.2017 p5117) 2021 3 Statutes Amendment (National Energy Laws) (Omnibus) Act 2021 11.2.2021 Pt 2 (s 4)—15.4.2021 (Gazette 15.4.2021 p1169) Provisions amended New entries appear in bold. Entries that relate to provisions that have been deleted appear in italics. Provision How varied Commencement Pt 1 heading inserted by 49/2007 s 4 1.7.2008 s 2 omitted under Legislation Revision and Publication Act 2002 1.7.2008 s 3