44AJHow duty is imposed

44AJ How duty is imposed

Application

(1) This section applies if an AER State/Territory energy law or local energy instrument purports to impose a duty on the AER.

Note 1: Section 44AK sets out when such a law or instrument imposes a duty on the AER.

Note 2: Section 320 of the South Australian Energy Retail Legislation, as it applies as a law of a State or Territory, deals with the case where a duty purportedly imposed on a Commonwealth body under that applied law cannot be imposed by the State or Territory or the Commonwealth due to constitutional doctrines restricting such duties.

State or Territory legislative power sufficient to support duty

(2) The duty is taken not to be imposed by this Part (or any other law of the Commonwealth) to the extent to which:

(a) imposing the duty is within the legislative powers of the State or Territory concerned; and

(b) imposing the duty by the law or instrument of the State or Territory is consistent with the constitutional doctrines restricting the duties that may be imposed on the AER.

Note: If this subsection applies, the duty will be taken to be imposed by force of the law or instrument of the State or Territory (the Commonwealth having consented under section 44AI to the imposition of the duty by that law or instrument).

Commonwealth legislative power sufficient to support duty but State or Territory legislative powers are not

(3) If, to ensure the validity of the purported imposition of the duty, it is necessary that the duty be imposed by a law of the Commonwealth (rather than by the law or instrument of the State or Territory), the duty is taken to be imposed by this Part to the extent necessary to ensure that validity.

(4) If, because of subsection (3), this Part is taken to impose the duty, it is the intention of the Parliament to rely on all powers available to it under the Constitution to support the imposition of the duty by this Part.

(5) The duty is taken to be imposed by this Part in accordance with subsection (3) only to the extent to which imposing the duty:

(a) is within the legislative powers of the Commonwealth; and

(b) is consistent with the constitutional doctrines restricting the duties that may be imposed on the AER.

(6) Subsections (1) to (5) do not limit section 44AI.