Electricity (National Scheme) Act 1997

The Act operates as an incorporation statute. It does not, on its face, restate the regulatory content of the National Electricity Law. Instead it imports that content into ACT law by reference to the South Australian instrument "as in force for the time being" (s 5 and s 6). The legislation therefore rests on three core legal concepts.

1. Dynamic incorporation by reference. The National Electricity (ACT) Law is the National Electricity Law as set out in the South Australian schedule, "as in force for the time being" (s 5). The National Electricity (ACT) Regulations are the South Australian regulations made under part 4 of the South Australian Act, also "as in force for the time being" (s 6). That phrasing means the ACT text follows the in-force version of the South Australian instrument at any given time, rather than freezing a single historical text.

2. Localisation by mapping terms. Section 7(1) maps certain jurisdiction-specific expressions used in the applied law to ACT institutional names and territory references. For practical legal interpretation, the applied law reads as if enacted by the Legislative Assembly (s 5(a)) and uses ACT referents where the applied text uses jurisdictional language. The dictionary further defines "National Electricity (ACT) Law" and "National Electricity (ACT) Regulations" as the provisions applying by reason of ss 5 and 6.

3. Limited interpretative autonomy and delegation. Section 7(2) excludes the Acts Interpretation Act 1915 (SA) and other South Australian Acts from applying to the applied law. That exclusion leaves the interpretation of the applied law to ACT interpretative rules and to any interpretative provisions contained in the applied instruments themselves. Section 8 provides a power for the Executive to make regulations that the National Electricity (ACT) Law contemplates be made under this Act, which is a delegated regulation-making channel limited by the scope the applied law anticipates.

Ancillary concepts in the Act concern extraterritorial reach, editorial and republication formalities, and transitional material recorded in the amendment history. Section 4 expresses an intention that the Act and the applied law operate extraterritorially to the fullest extent possible, including application to land, things, acts and matters outside the Territory and abroad. The republication endnotes and amendment history record amendments, expiry of transitional Part 4 (notably provisions that were inserted by A2012-32 and expired on 1 July 2017), and the penalty unit value at republication.

Taken together, these mechanisms make the ACT a participating jurisdiction for the legal regime embodied in the imported National Electricity Law and its regulations, while retaining local legislative formality and a measure of local control over interpretation and regulation-making.

The Act itself contains no sectoral schedules, licensing regimes or offence provisions. Its effect is to make the National Electricity (ACT) Law and National Electricity (ACT) Regulation part of ACT law, and therefore all persons, entities and interests to whom that applied law applies will be affected within the Territory. The Act therefore changes the legal status of the South Australian National Electricity Law within the ACT, rather than directly imposing new technical obligations in the text of the Act.

Who pays. Financial impacts flow to the persons and organisations subject to the applied law and regulations. Because the Act imports the National Electricity Law "as in force for the time being" (s 5) and the regulations (s 6), costs, fees, compliance obligations and potential financial penalties arising under those instruments will, from an ACT law perspective, be payable by the persons who fall within their operative scope. The Act does not itself set fees, charges or monetary penalties (the republication notes record a penalty unit value for offences under this law under the Legislation Act, see Penalties note).

Who decides. Under the applied law decision-making, licensing, monitoring and enforcement functions will be determined by the institutional structure and powers contained in the National Electricity (ACT) Law and its regulations. The Act localises terminology (s 7(1)) so that references in the applied law to "Legislature of this jurisdiction" or "the jurisdiction" are to be read as references to the ACT Legislative Assembly and the Territory. The Act also preserves an ACT Executive regulation-making route for matters the National Electricity (ACT) Law contemplates should be made under this Act (s 8).

Behaviour changes. For regulated persons, behaviour changes will be driven by the substantive duties, standards and compliance mechanisms specified in the applied National Electricity (ACT) Law and National Electricity (ACT) Regulation. The Act's extraterritorial intention (s 4) may expand reach beyond ACT territory in circumstances captured by the applied law. Practitioners must therefore identify the class of persons captured by the National Electricity (ACT) Law, and map the applied law's obligations, enforcement tools and definitions onto ACT entities.

Practical identification. To know concretely who is affected in the ACT, readers must consult the operative National Electricity (ACT) Law and the National Electricity (ACT) Regulations as currently in force. The Act defines those texts as the provisions applying by reason of ss 5 and 6 (dict). The Act thus creates an obligation for ACT practitioners and regulated firms to maintain vigilance about the current text of the applied South Australian instruments and any in-force amendments, because the Act adopts those instruments dynamically.

Geographical and jurisdictional breadth. Section 4 expresses an intention that the Act and the applied law should operate, so far as possible, in relation to land and acts outside the ACT and Australia. That statement expands the possible pool of affected interests where the applied law contains extraterritorial operation or where activities connected to ACT-registered entities occur outside the Territory.

This Act does not itself enumerate substantive duties, licensing conditions, market rules, consumer protections, technical standards or enforcement procedures. Instead the Act's key legal effect is to make available, within ACT law, the substantive duties and rights contained in the National Electricity (South Australia) Act 1996 schedule and the South Australian regulations under part 4, as those instruments are in force from time to time.

Where to find duties and rights. The operative duties and rights are located in the National Electricity (ACT) Law and the National Electricity (ACT) Regulation as applied. Section 5(a) goes further and directs that the National Electricity Law applies "as if it were an Act passed by the Legislative Assembly", which means that courts and administrative decision-makers will treat the imported text as an ACT Act for legal operation and enforcement. Section 7(1) maps certain expressions so that jurisdictional references in the applied law operate with ACT institutional names. The dictionary defines the terms "National Electricity (ACT) Law" and "National Electricity (ACT) Regulations" (dict), and notes in s 2 that the dictionary forms part of the Act.

Delegation of rule-making. Section 8 authorises the Executive to make regulations that the National Electricity (ACT) Law contemplates should be made under this Act. That provides a route for local subordinate instrument-making to fill in or adapt aspects of the applied law where the National Electricity (ACT) Law anticipates such regulations. Such regulations, when made, are required to be notified and presented to the Legislative Assembly under the Legislation Act (s 8 Note). The scope of permitted regulation-making under s 8 is therefore tied to the text of the National Electricity (ACT) Law and any delegation provisions it contains.

Interpretation. Section 7(2) excludes application of the Acts Interpretation Act 1915 (SA) and other South Australian Acts to the applied law and regulations. That exclusion affects how duties and rights are interpreted. Courts and decision-makers must rely on ACT interpretative principles and on the interpretative provisions (if any) contained within the applied instruments themselves. Section 7(1) establishes textual mappings to ensure references to jurisdictional institutions in the applied law are read as ACT institutions.

Extraterritorial reach. Section 4 expresses the Legislative Assembly's intention that the operation of this Act and the applied law should include extraterritorial matters "so far as possible". Where the applied National Electricity (ACT) Law contains jurisdictional hooks or extraterritorial operation, those provisions will be available and enforceable in the ACT sphere to the extent legally permissible.

Practical consequence. Practitioners in the ACT must treat the National Electricity (ACT) Law and Regulations as the primary source for duties and rights affecting electricity market participants and related actors. This Act provides the domestic legal vehicle for that treatment, but the content and scope of obligations reside in the applied instruments themselves.

This Act contains no bespoke offence or penalty provisions apart from the structural incorporation of another regime. The enforcement machinery and any criminal, civil or administrative penalties which apply in the ACT arise from the National Electricity (ACT) Law and the National Electricity (ACT) Regulation as those instruments are applied by sections 5 and 6.

Penalty unit value for this Act. The republication notes record that, at the republication date, the value of a penalty unit for an offence against this law is $110 for an individual and $550 for a corporation, referencing the Legislation Act 2001, s 133. That note is a republication annotation and not an intrinsic provision of this Act, but it is the statutory metric for calculating monetary penalties attached to offences under this Act as at the republication date.

Where penalties live. Any provision of the applied National Electricity (ACT) Law or Regulations that creates an offence, fine or other monetary sanction will be enforced under ACT processes, because s 5 treats the National Electricity Law "as if it were an Act passed by the Legislative Assembly". That means the criminal or regulatory sanctions in the applied legal texts are enforceable within the ACT framework, subject to ACT procedural and constitutional rules.

Enforcement agencies and decision-makers. The Act does not name enforcement agencies or decision-makers. Identification of the persons and agencies with investigative, prosecutorial, or regulatory powers must come from the National Electricity (ACT) Law and Regulations themselves. Section 7(1) ensures that any reference in the applied law to jurisdictional institutions is read as a reference to the ACT institutions specified, which will affect who is empowered to act.

Delegation and subordinate instruments. Section 8 authorises the Executive to make regulations that the applied law contemplates. If the applied law contemplates regulatory instruments that prescribe compliance procedures, reporting requirements, penalties for non-compliance or enforcement processes, s 8 is the avenue for the ACT Executive to enact those instruments locally. Those regulations must be made in accordance with presentation and notification requirements in the Legislation Act, per the Note to s 8.

Interpretive constraints on enforcement. Section 7(2) makes clear that the South Australian Acts of interpretation do not apply to the applied law and regulations. Practically, this means that enforcement and penalty questions will be adjudicated using ACT interpretative norms, and in some cases by reference to any interpretative provisions contained within the applied instruments themselves.

Transitional enforcement provisions. The amendment history records that Part 4 (Transitional,National Energy Retail Law) and certain related transitional provisions were inserted by A2012-32 and later expired on 1 July 2017. Those expired provisions included validation of instruments and decisions made by the AER, authorisation of preparatory steps, and transitional regulations (amendment history, entries for s 9-s 12). Any enforcement or validation benefits that were conferred by those transitional provisions are no longer in force as of their expiry; the amendment history in the republished text records those expiries.

The Act operates primarily by incorporation and mapping, so interaction effects are largely determined by the nature of the imported National Electricity Law and its regulations together with the interpretative and exclusionary provisions contained in this Act.

Incorporation and coexistence. Sections 5 and 6 bring the National Electricity Law and associated regulations into ACT law. Because s 5(a) directs that the National Electricity Law applies "as if it were an Act passed by the Legislative Assembly", the applied law sits in the same legislative plane as other ACT Acts for the purposes of statutory operation. The Act does not expressly state whether applied provisions prevail over inconsistent Territory enactments; readers will need to examine conflict rules in the Legislation Act 2001 and the imported instruments themselves to resolve inconsistency questions.

Extraterritorial overlap. Section 4 expresses an intention that this Act and the applied law operate extraterritorially to the extent possible. That intention may bring the applied law into contact with laws of other jurisdictions where activities cross borders. The Act explicitly contemplates application to matters that "would, apart from this Act, be governed or otherwise affected by the law of the Commonwealth, a State, another Territory or a foreign country" (s 4(d)). Practical legal interaction in such cases depends on the text of the applied law, choice of law principles, and the constitutional limits on extraterritorial legislation.

Exclusion of South Australian interpretative Acts. Section 7(2) provides that the Acts Interpretation Act 1915 (SA) and other South Australian Acts do not apply to the applied National Electricity (ACT) Law and Regulations. That creates a deliberate interpretative boundary: when construing the applied law as ACT law, South Australian interpretative aids are not to be imported wholesale. Consequently, the applied law will be interpreted under ACT interpretive principles, and any South Australian statutes that the applied law might otherwise rely upon for definitions or interpretative rules will not operate in the ACT context unless the applied law itself contains those provisions and the ACT context permits their use.

Regulation-making and subordinate law. Section 8 permits the Executive to make regulations that the National Electricity (ACT) Law contemplates be made under this Act. Those regulations will form subordinate ACT law and must be notified and presented under the Legislation Act. The scope of that subordinate law is therefore limited by what the applied law contemplates and by the presentation and disallowance architecture in the ACT.

Interaction with federal or national arrangements. The long title refers to "operation of a national electricity market", and the applied law is the National Electricity Law. However the Act contains no express provision about how Commonwealth laws or intergovernmental agreements interact with the applied law in the ACT. Any interaction with federal statute, including Commonwealth competition law, environmental law, constitutional limits on Territory law, or intergovernmental instruments, will depend on ordinary Commonwealth-State-Territory interaction principles and on the content of the applied instruments.

Transitional interactions and historical amendments. The amendment history records that the Act was amended to insert transitional provisions associated with the National Energy Retail Law (A2012-32), and that those transitional provisions expired on 1 July 2017. Those expired provisions included validation of instruments and decisions, authorisation of preparatory steps, and transitional regulations (amendment history entries s 9-s 12). Practitioners must be alert to the existence and expiry of such provisions when tracing rights, liabilities and validations that straddle the insertion and expiry dates.

Editorial and republication effects. The front matter explains that editorial changes under the Legislation Act 2001, part 11.3 do not change the effect of the law but have effect as if made by an Act commencing on the republication date (About this republication). Readers should therefore confirm whether any editorial adjustments have been made and check the legislation register for current modifications.

The republished text includes an explicit amendment history with the sequence of legislative changes and the instruments that made them. The principal amendments recorded in the republished Act are:

• Legislation (Consequential Amendments) Act 2001 A2001-44. Parts of that Act amended the Electricity (National Scheme) Act 1997. The legislation history records notification on 26 July 2001 and commencement of relevant parts on 12 September 2001.

• Statute Law Amendment Act 2005 (No 2) A2005-62. This instrument made multiple amendments, including substitution and insertion of sections and the dictionary definitions. The legislation history records notification in December 2005 and commencement on 11 January 2006 for sch 3 pt 3.8. The amendment history entries show s 1 and s 2 edits and multiple insertions such as s 3A Terms used in National Electricity (ACT) Law (ins A2005-62 amdt 3.114) and dictionary definitions (ins A2005-62 amdt 3.116).

• National Energy Retail Law (Consequential Amendments) Act 2012 A2012-32. This instrument inserted Part 3 heading, s 8 (Regulation-making power), and inserted a transitional Part 4 (Transitional,National Energy Retail Law) including validation and authorisation sections (s 9-s 12). The amendment history notes that pt 4 and its sections were inserted by A2012-32 and that these provisions expired on 1 July 2017 (s 12 exp 1 July 2017).

Specific textual amendments and timing. The amendment history table records particular changes: for example s 1 was substituted by A2005-62 amdt 3.114; s 2 was omitted by A2001-44 amdt 1.1453 and reintegrated with new insertions by A2005-62; s 3 was substituted by A2005-62 amdt 3.114 and s 3A was inserted by the same amending instrument. The interpretation provision s 7 was amended by A2005-62 amdt 3.115. The dictionary was also amended to add definitions for "National Electricity (ACT) Law" and "National Electricity (ACT) Regulations" by A2005-62 amdt 3.116.

Republications. The endnotes list authorised republications R1-R3 and indicate their effective ranges and the last amendment included in each republication. The current republished law is indicated as including amendments up to A2012-32 and is effective to 2 July 2017.

Expired transitional provisions. The amendment history notes that several transitional provisions inserted by A2012-32 expired on 1 July 2017. Those included validation of instruments and decisions made by the AER, authorisation of preparatory steps, and transitional regulations (amdt entries show s 9-s 12 with expiry). The endnotes instruct readers to consult point-in-time versions on the legislation register for arrangements in force before those expiries.

Practical consequence for lawyers. Because the Act imports external instruments and has itself been amended primarily to manage that importation and associated transitional arrangements, any legal analysis must trace the chain of amendments both in this Act and in the South Australian National Electricity Law and Regulations. The amendment history is therefore a key starting point for reconstructing legal obligations at particular points in time.

The republished Act does not record any litigation or judicial decisions. The text contains no case citations and the endnotes do not list judicial consideration or precedent relating to this Act. The amendment history and republication notes are administrative and legislative records rather than records of litigation.

What this means in practice. Because the Act operates by importing the National Electricity Law and associated regulations, legal disputes about substantive obligations and enforcement in the ACT will principally concern the application and interpretation of those applied instruments. Any litigation history that exists will therefore typically be found in cases that interpret the National Electricity Law and its regulations, and in cases that consider the effect of importing that law into the ACT. The republished text supplied here does not provide those cases.

How to research litigation. To assemble a litigation history relevant to ACT application of the National Electricity Law, practitioners should search for decisions that interpret the applied National Electricity Law, including decisions where courts have considered incorporation by reference, extraterritorial application, or the interaction between the applied law and local statutes. This Act will be a subject-matter referent in such cases because s 5 makes the National Electricity Law apply "as if it were an Act passed by the Legislative Assembly", and s 7(1) provides textual mappings for jurisdictional terms. The republished text supplied does not itself contain the judicial material; users must search judicial databases and the legislation register for case law that engages these provisions.

Absence of recorded litigation in republished law. The absence of litigation material in the republished Act is not evidence that no litigation exists. It is only a reflection that the republished statute text and its endnotes do not annotate judicial history. For an authoritative litigation history, consult legal databases and the jurisdiction's court records.

1. Dynamic incorporation, dynamic risk. Sections 5 and 6 import the National Electricity Law and its regulations "as in force for the time being". That language creates dynamic incorporation. The practical consequence is that when the South Australian instrument is amended, the ACT's applied version will change to reflect the in-force South Australian text unless and until the ACT explicitly intervenes. Practitioners must monitor South Australian amendments and any ACT amendments or modifications that affect the applied text. The Act’s dictionary defines the applied texts as those provisions applying because of ss 5 and 6 (dict), reinforcing that the applied content is not frozen.

2. Interpretation boundary with South Australian Acts. Section 7(2) excludes the Acts Interpretation Act 1915 (SA) and other South Australian Acts from applying to the applied law and regulations. Do not assume that South Australian interpretative aids or default definitions are available in the ACT context. The interpreter must rely on ACT interpretive principles and on any interpretative provisions contained in the applied instruments themselves. This can produce unexpected interpretive outcomes if the applied text presumes South Australian interpretative statutes.

3. "As if it were an Act passed by the Legislative Assembly" has consequences. Section 5(a) makes the National Electricity Law apply as if it were local legislation. That changes how courts and administrators treat the applied text for purposes such as statutory construction, remedies, and the operation of ACT procedural rules. However the Act itself does not specify how inconsistencies between the applied law and existing Territory Acts will be resolved; consult the Legislation Act and conflict rules for clarity.

4. Extraterritorial intention. Section 4 expresses a broad intention for extraterritorial application. Intentions are not the same as proven legal operability. The phrase "so far as possible" signals an aspirational scope. Whether particular extraterritorial applications are legally effective will depend on the wording of the applied law, choice of law principles, and constitutional limits. Practitioners should not assume all activities outside the Territory are automatically caught.

5. Limited delegated regulation power. Section 8 authorises the Executive to make regulations that the National Electricity (ACT) Law contemplates be made under this Act. The extent of the Executive's regulatory competence is therefore contingent on what the applied law contemplates and does not provide an open-ended regulatory power. Any such regulations must comply with the Legislation Act presentation and notification requirements.

6. Transitional provisions expired. The amendment history shows that transitional provisions introduced by A2012-32 (including validation of instruments and authorisation of preparatory steps) expired on 1 July 2017. Where matters straddle the period of insertion and expiry, practitioners must verify whether specific acts or instruments benefited from those transitional arrangements. The republished Act’s amendment history records those expiries.

7. Penalty unit value is not intrinsic. The republication note on penalty units records the value at the republication date and refers to Legislation Act s 133. That value is not a substantive provision of this Act. Penalty calculations for offences under the applied law will depend on the offence provisions in the applied instruments and on the current penalty unit value established under the Legislation Act.

8. Editorial changes and republication. The Parliamentary Counsel’s Office may have made editorial changes under the Legislation Act 2001, part 11.3 in the process of republication. The republication note states editorial changes do not alter the effect of the law but have effect as if made by an Act commencing on the republication date. Confirm whether specific provisions have been editorially adjusted by checking the legislation register.

9. Lack of substantive content in this Act. The Act’s primary function is to import other instruments. It therefore provides limited standalone regulatory content. Legal advice must therefore rely on the current text of the National Electricity (ACT) Law and Regulations and cannot be based on this Act alone.

Step 1, identify the current applied texts. Use sections 5 and 6 as the statutory basis for compliance: the operative duties and rights are contained in the National Electricity (ACT) Law and the National Electricity (ACT) Regulation as those instruments are "in force for the time being" (s 5, s 6). Compliance begins with obtaining the current in-force versions of those texts as they apply within the ACT. The dictionary confirms what "National Electricity (ACT) Law" and "National Electricity (ACT) Regulations" mean for the Act (dict).

Step 2, map jurisdictional terminology. Section 7(1) prescribes local mappings of certain jurisdictional terms. When reading the applied law for compliance duties, map references such as "Legislature of this jurisdiction" to the Legislative Assembly and "the jurisdiction" to the Territory. That ensures duties and reporting obligations are correctly addressed to ACT institutions.

Step 3, check interpretative rules. Do not rely on South Australian interpretive statutes. Section 7(2) excludes the Acts Interpretation Act 1915 (SA) and other South Australian Acts from applying. Use ACT interpretative principles, and search within the applied instruments for internal interpretative provisions. If ambiguity persists, consider seeking declaratory guidance from the appropriate ACT courts or administrative tribunals.

Step 4, monitor changes in the South Australian instruments. Because the Act incorporates the National Electricity Law and regulations dynamically, compliance requires ongoing monitoring of South Australian amendments and any ACT modifications or regulations made under s 8. Set up a process for regular checking of the South Australian National Electricity Law and Part 4 regulations in their in-force versions, and confirm whether the ACT Legislative Assembly or the Executive has issued any local regulations or instruments that affect the applied law.

Step 5, review extraterritorial exposure. Section 4’s extraterritorial intention means that activities or assets located outside the ACT may nonetheless fall within the scope of the applied law in certain circumstances. Assess whether business activities, contracts, infrastructure or transactions with cross-border elements might trigger obligations under the applied law. If operations span jurisdictions, obtain legal advice on conflict of laws and enforceability.

Step 6, identify enforcement and reporting channels. The Act does not name enforcement agencies. To determine reporting obligations, enforcement channels and remedial processes, inspect the applied law and regulations to find the agencies or persons conferred authority. Then align corporate governance, compliance reporting and record-keeping processes to meet those obligations in the ACT context.

Step 7, consider subsidiary regulations under s 8. Check for any ACT Executive regulations made under s 8. Those regulations will be part of the local compliance landscape and must be observed. They are required to be notified and presented to the Legislative Assembly under the Legislation Act, so review the Legislation Register and the Legislative Assembly records for any instruments made under s 8.

Step 8, document legal provenance and timeline. Because the Act’s legal effect can change over time due to dynamic incorporation and expired transitional provisions, maintain a contemporaneous compliance record that notes the in-force text date for the National Electricity (ACT) Law and Regulations being relied upon. Where historical compliance or enforcement risk depends on transitional provisions that have expired (see amendment history for expiries on 1 July 2017), document whether the relevant activities fell within the lifespan of those transitional measures.

Step 9, consult the Legislation Register and seek specialist advice. For authoritative versions of the applied instruments, consult the ACT Legislation Register and the South Australian consolidated texts as needed. Given the Act’s role as an importing statute and the interpretative exclusions it creates, seek specialist advice when obligations are novel, when extraterritorial exposure is plausible, or when there is potential conflict with other ACT or Commonwealth laws.

Step 10, update penalty and financial calculations. If the applied law imposes monetary penalties or civil penalties, compute those using the current penalty unit value under the Legislation Act, noting the republication note records $110 for an individual and $550 for a corporation at the republication date. Update calculations against the current penalty unit value in force at the relevant time.

Compliance in short. Treat the Electricity (National Scheme) Act 1997 as the statutory vehicle that imports and localises the National Electricity Law and regulations. Full compliance requires working from the current in-force texts of the applied instruments, mapping jurisdictional references per s 7(1), avoiding reliance on South Australian interpretative statutes per s 7(2), and monitoring both South Australian and ACT secondary instruments that affect the applied law.