This Act gives Tasmania's shareholding Ministers and the Treasurer broad powers to restructure the State-owned electricity sector: they can direct companies, order transfers of assets and employees between State entities or to the Crown, sell Aurora Energy's retail business (now subject to a parliamentary supermajority), and appoint an Electricity Reform Co‑ordinator to implement reforms. It affects Aurora Energy, Transend, the Hydro‑Electric Corporation, their subsidiaries, employees, customers and potential purchasers, by shifting decision‑making and legal title through Ministerial notices and orders.
This Act establishes a statutory framework for a program of electricity-sector reform in Tasmania. Mechanically, it does the following.
Declares the policy objectives of reform (s 5): lower prices consistent with financial viability, safety/security/reliability, maximising renewable generation advantage, and ensuring State-owned electricity entities are financially viable and efficient.
Authorises particular reform measures (s 6), including introduction of full retail competition, restructuring of State-owned electricity entities, network integration, transfer or sale of the Tamar Valley business, independent regulation of wholesale contracts, and sale of Aurora Energy’s retail business or a subsidiary’s retail business.
Concentrates decision-making and implementation authority in the shareholding Ministers (the Treasurer and the Minister, s 4 definition, s 7) and gives them wide powers to act to achieve the objectives (s 7-8). That includes issuing written directions to State-owned electricity entities (s 8), and making transfer notices, sale contracts and transfer orders (Parts 4-6).
Creates a temporary office, the Electricity Reform Co-ordinator (the Secretary of the responsible department, s 12), with investigatory and coordination functions (s 13-15) and powers to delegate (s 16). The Co‑ordinator’s office is time‑limited (exists until expiry of 30 June 2015, s 12(1)) and many Division 2 Ministerial powers are expressly curtailed after that date except for winding-up (s 11).
Provides specific statutory mechanisms for transfers between State-owned electricity entities (transfer notices, Part 4, ss 19-20), transfer of employees (ss 21-22), sale of Aurora Energy’s retail business (s 23 and s 24 for sale contract contents), and vesting of remaining business in the Crown (transfer orders, Part 6, ss 26-27). Transfers and orders take effect by Gazette notice or order on the date specified (ss 19(1), 19(4), 26(1), 26(4)).
Current sections
Direct links to the current provisions in Electricity Reform Act 2012.
(1) In this Act, unless the contrary intention appears –
asset includes any, and any part of any, property, business or operation;
Aurora Energy means Aurora Energy Pty Ltd (ABN 85 082 464 622);
Aurora Energy (Tamar Valley) means Aurora Energy (Tamar Valley) Pty Ltd (ACN 123 391 613);
business, in relation to a State-owned electricity entity, means –
(a) the business conducted by the entity; and
(b) the goodwill of that business; and
(c) any asset of the entity; and
(d) the rights, liabilities, duties and obligations of the entity, whether those rights, liabilities, duties or obligations are present or future and whether vested or contingent –
and includes a part of the business of the entity;
customer means a person to whom electricity is sold for premises by an electricity retailer;
distribution of electricity means the carrying of electricity between different points using a distribution network;
distribution network means the apparatus, electric line, equipment, plant, and buildings, that are –
(a) used to convey, or control the conveyance of, electricity; and
(b) specified by the National Electricity Rules as, or as forming part of, a distribution system;
Electricity Reform Co-ordinator means the office of Electricity Reform Co-ordinator existing under section 12 ;
electricity reform measures means the measures referred to in section 6(1) ;
electricity reform objectives means the objectives of electricity reform referred to in section 5 ;
electricity retailer means the holder of a retailer authorisation within the meaning of the National Energy Retail Law (Tasmania);
gas contract means a contract for the sale of gas;
liability means any liability, duty or obligation, whether actual, contingent or prospective, liquidated or unliquidated;
National Electricity Rules has the same meaning as in the National Electricity Law contained in the Schedule (as amended from time to time) to the National Electricity (South Australia) Act 1996 of South Australia;
property means –
(a) any legal or equitable estate or interest (whether present or future and whether vested or contingent) in real or personal property; and
(b) money, documents and securities; and
(c) shares in a subsidiary; and
(d) any other rights;
retail business, in relation to a State-owned electricity entity –
(a) means any business of the entity that relates to the retailing of electricity; and
(b) includes any retail electricity contracts and any gas contracts;
retail electricity contract means a contract between an electricity retailer and a customer for the sale to the customer of electricity for premises;
retailing of electricity means selling to a customer electricity for premises;
right means any right, power, privilege, or immunity, whether actual, contingent or prospective;
shareholding Ministers means the Treasurer and the Minister;
small customer has the same meaning as in the National Energy Retail Law (Tasmania);
transmission of electricity means the carrying of electricity between different points using a transmission system;
transmission system has the same meaning as in the National Electricity Rules.
(2) For the purposes of this Act, a body corporate is a subsidiary of a State-owned electricity entity if –
(a) the body is a subsidiary of the State-owned electricity entity under the Corporations Law; or
(b) were the State-owned electricity entity, and the body corporate, corporations under the Corporations Law, the body corporate would be a subsidiary of the State-owned electricity entity under the Corporations Law.
Part 2
Electricity Reform Generally
Part 2 Electricity Reform Generally
Division 1
Electricity reform objectives and measures
Division 1 Electricity reform objectives and measures
5
Electricity reform objectives
5 Electricity reform objectives
For the purposes of this Act, the objectives of electricity reform are –
(a) to assist in ensuring that the prices that customers are charged for electricity are as low as is consistent with ensuring the financial viability of the electricity supply industry; and
(b) to ensure that the supply of electricity in Tasmania is safe, secure and reliable; and
(c) to ensure that the advantage to Tasmania of generating electricity by means of renewable energy sources is maximised; and
(d) to ensure that State-owned electricity entities are financially viable and operated efficiently and effectively and that their overall economic benefit to Tasmania is maximised.
6
Electricity reform measures
6 Electricity reform measures
(1) The measures that may be taken to achieve the electricity reform objectives include the following:
(a) the introduction of full retail competition into the electricity supply industry so that customers, including small customers, have a choice of electricity retailers from which electricity may be purchased;
(b) the restructuring of State-owned electricity entities;
(c) the integration of Aurora Energy's distribution network with Transend's transmission system to form a single combined network business;
(d) the transfer to the Hydro-Electric Corporation, or the sale to the private sector, of Aurora Energy (Tamar Valley) and any business of Aurora Energy (Tamar Valley);
(e) the establishment of independent regulation of the Hydro-Electric Corporation's wholesale market contracts;
(f) the sale to the private sector of the retail business of Aurora Energy or a subsidiary of Aurora Energy.
(2) Subsection (1) does not limit the measures that may be taken to achieve the electricity reform objectives.
Division 2
Ministerial responsibility for electricity reform
Division 2 Ministerial responsibility for electricity reform
7
Ministerial control
7 Ministerial control
(1) The shareholding Ministers are to take the actions they think necessary or desirable –
(a) to achieve the electricity reform objectives; and
(b) to implement the electricity reform measures.
(2) The actions that may be taken to implement the electricity reform measures include, but are not limited to including, the following:
(b) the sale and transfer, under this Act, of any retail business held by Aurora Energy or a subsidiary of Aurora Energy;
(c) the transfer, under this Act, between State-owned electricity entities, of certain assets, rights, liabilities and employees;
(d) the transfer, under this Act, to the Crown of all or part of the business of Aurora Energy, Transend or subsidiaries of Aurora Energy or Transend.
8
Ministerial power of direction
8 Ministerial power of direction
(1) The shareholding Ministers, by notice in writing to a State-owned electricity entity, may jointly issue a direction to the entity to ensure that –
(a) the electricity reform objectives are achieved; or
(b) the electricity reform measures are implemented.
(2) Without limiting the generality of subsection (1) , a direction issued under that subsection to a State-owned electricity entity may require the entity to –
(a) take the action specified in the direction; or
(b) take all reasonable steps to comply with the direction.
(3) Without limiting the generality of subsection (1) , a direction issued under that subsection to a State-owned electricity entity may require the entity to direct a subsidiary of the entity to take an action, or cease to take an action, that –
(a) is specified in the direction issued under subsection (1) ; or
(b) the entity, or the board of directors of the entity, thinks is necessary or convenient to assist in the carrying out of the direction issued under subsection (1) .
(4) If a direction is issued to a State-owned electricity entityunder subsection (1) –
(a) the State-owned electricity entity; and
(b) the board of directors and the chief executive officer of the State-owned electricity entity; and
(c) all officers of the State-owned electricity entity –
must comply with the direction and may do all things necessary or convenient to ensure the direction is complied with.
(5) Without limiting the generality of subsection (4) , a State-owned electricity entity to which a direction is issued under subsection (1) , and the board of directors of the State-owned electricity entity, may direct a subsidiary of the entity to take an action, or to cease to take an action, specified in the direction to the subsidiary, that –
(a) is specified, in the direction issued under subsection (1) , as a direction that the entity is to issue to the subsidiary; or
(b) the entity or the board of directors thinks is necessary or convenient to assist in the carrying out of the direction issued under subsection (1) .
(6) If a direction is issued to a subsidiary of a State-owned electricity entity under subsection (5) by a State-owned electricity entity or the board of directors of a State-owned electricity entity –
(a) the subsidiary; and
(b) the board of directors and the chief executive officer of the subsidiary; and
(c) all officers of the subsidiary –
must comply with the direction and may do all things necessary or convenient to ensure the direction is complied with.
(7) If a direction is issued under subsection (1) to a State-owned electricity entity, details of the direction are to be published in the annual report of the entity.
(8) If a direction is issued to a subsidiary of a State-owned electricity entity under subsection (5) , details of the direction are to be published in the annual report of the subsidiary, or, if there is no such annual report, the annual report of the State-owned electricity entity.
9
Ministerial directions in relation to information held by Expert Panel
9 Ministerial directions in relation to information held by Expert Panel
(1) In this section –
authorised person means a person, or a person who is a member of a class of persons, authorised in writing by the Treasurer to receive information provided to the person under this section.
(2) The Treasurer may issue to a person a direction that the person is to provide to the Electricity Reform Co-ordinator information, in the person's possession, that was produced by, or was in the possession of, the Electricity Supply Industry Expert Panel established under the Electricity Supply Industry Expert Panel Act 2010 .
(3) A person to whom a direction is issued under subsection (2) must comply with the direction and may do all things necessary or convenient to ensure the direction is complied with.
(4) The Electricity Reform Co-ordinator, for the purposes of assisting in the performance of the functions of the Electricity Reform Co-ordinator, may provide to an authorised person information provided to the Electricity Reform Co-ordinator under this section.
(5) The Electricity Reform Co-ordinator –
(a) may only use information provided to him or her under this section, or provide such information to an authorised person, for the purposes of assisting in the performance of the functions, or the exercise of the powers, of the Electricity Reform Co-ordinator; and
(b) must not provide the information to a person other than an authorised person.
(6) An authorised person to whom information is provided under subsection (4) may provide that information to another authorised person.
(7) An authorised person to whom information is provided under this section –
(a) may only use the information, or provide the information to another authorised person, for the purposes of assisting in the performance of the functions, or the exercise of the powers, of the Electricity Reform Co-ordinator; and
(b) must not provide the information to a person other than an authorised person.
10
Indemnity in respect of compliance with direction
10 Indemnity in respect of compliance with direction
(1) In this section –
relevant person, in relation to a State-owned electricity entity, means –
(a) a member of the board of directors of the State-owned electricity entity; and
(b) the chief executive officer of the State-owned electricity entity; and
(c) any officer, employee, or agent, of the State-owned electricity entity.
(2) A relevant person in relation to a State-owned electricity entity to which a direction is issued under section 8 is indemnified by the Crown against any liability incurred by the person in relation to –
(a) an action taken by the person in relation to the direction; or
(b) a failure by the person to take an action in relation to the direction –
if the person took the action in good faith, or failed in good faith to take the action, in the belief that taking the action, or failing to take the action, was necessary or convenient to implement the direction.
(3) A person to whom a direction is issued under section 9(2) is indemnified by the Crown against any liability incurred by the person in relation to an action taken by the person if the person took the action in good faith in the belief that taking the action was necessary or convenient to implement the direction.
(4) A person to whom information to which section 9 relates is provided is indemnified by the Crown against any liability incurred by the person in relation to –
(a) an action taken by the person in relation to the information; or
(b) a failure by the person to take an action in relation to the information –
if the person took the action in good faith, or failed in good faith to take the action, in the belief that taking the action, or failing to take the action, was necessary or convenient for the purposes of assisting in the performance of the functions, or the exercise of the powers, of the Electricity Reform Co-ordinator and was not prohibited under section 9(5) or (7) .
11
Powers under this Division limited after 30 June 2015
11 Powers under this Division limited after 30 June 2015
A shareholding Minister may not, after 30 June 2015, perform a function, or exercise a power, under this Division except if, in the opinion of the shareholding Minister, it is necessary, or convenient, to do so for the purposes of winding up a State-owned electricity entity.
Part 3
Electricity Reform Co-ordinator
Part 3 Electricity Reform Co-ordinator
12
Electricity Reform Co-ordinator
12 Electricity Reform Co-ordinator
(1) There is to be, until the expiry of 30 June 2015, an Electricity Reform Co-ordinator.
(2) The Secretary of the department responsible to the Minister in relation to the administration of this Act is to hold the office of Electricity Reform Co-ordinator.
13
Functions of Electricity Reform Co-ordinator
13 Functions of Electricity Reform Co-ordinator
(1) It is a function of the Electricity Reform Co-ordinator to assist the shareholding Ministers –
(a) to achieve the electricity reform objectives and to implement the electricity reform measures; and
(b) to take any action under this Act that either or both of the shareholding Ministers may take.
(2) It is a function of the Electricity Reform Co-ordinator to seek information, assistance, and advice, that is necessary, or convenient, to –
(a) enable the shareholding Ministers to achieve the electricity reform objectives and to implement the electricity reform measures; or
(b) enable the Electricity Reform Co-ordinator to assist the shareholding Ministers to achieve the electricity reform objectives and to implement the electricity reform measures; or
(c) assist the Electricity Reform Co-ordinator in the performance of his or her functions, or the exercise of his or her powers, under this Act.
(3) It is a function of the Electricity Reform Co-ordinator to oversee the implementation of directions or decisions issued or taken by the shareholding Ministers for the purpose ofachieving the electricity reform objectives or implementing the electricity reform measures.
(4) It is a function of the Electricity Reform Co-ordinator to –
(a) take steps necessary, or convenient, to assist in the sale, transfer or disposal of assets, rights or liabilities under this Act; and
(b) take any other action necessary to achieve, or incidental to achieving, the electricity reform objectives or implementing the electricity reform measures.
14
Powers of Electricity Reform Co-ordinator
14 Powers of Electricity Reform Co-ordinator
(1) The Electricity Reform Co-ordinator has the powers necessary to enable the performance of his or her functions.
(2) The Electricity Reform Co-ordinator may examine an asset, right or liability of a State-owned electricity entity, including a record in relation to such an asset, right or liability.
15
Electricity Reform Co-ordinator may request assistance, &c.
15 Electricity Reform Co-ordinator may request assistance, &c.
(1) The Electricity Reform Co-ordinator may, for the purpose of assisting the shareholding Ministers to achieve the electricity reform objectives or to implement the electricity reform measures, request a State-owned electricity entity –
(a) to provide to the Electricity Reform Co-ordinator the information in the possession of the entity that he or she requests the entity to provide to him or her; or
(b) to permit the Electricity Reform Co-ordinator to access information in the possession of the entity; or
(c) to provide advice to the Electricity Reform Co-ordinator; or
(d) to provide assistance to the Electricity Reform Co-ordinator.
(2) A State-owned electricity entity to which a request is made under subsection (1) , and an officer, employee or agent of the State-owned electricity entity, must comply with the request.
(3) The Electricity Reform Co-ordinator may, for the purpose of assisting the shareholding Ministers to achieve the electricity reform objectives or to implement the electricity reform measures, provide to another person information or advice that has been provided to the Electricity Reform Co-ordinator by a State-owned electricity entity.
(4) A person is not to be taken, by reason only of providing information, advice or assistance under this section, to contravene a provision of any contract.
16
Delegation
16 Delegation
The Electricity Reform Co-ordinator may delegate to any person any of his or her functions or powers, other than this power of delegation.
17
Immunity of Electricity Reform Co-ordinator and persons to whom requests are made
17 Immunity of Electricity Reform Co-ordinator and persons to whom requests are made
(1) In this section –
relevant person, in relation to a State-owned electricity entity, means –
(a) a member of the board of directors of the State-owned electricity entity; and
(b) the chief executive officer of the State-owned electricity entity; and
(c) any officer, employee, or agent, of the State-owned electricity entity.
(2) The Electricity Reform Co-ordinator is indemnified by the Crown against any liability incurred by him or her in relation to –
(a) an action taken by him or her; or
(b) a failure by him or her to take an action –
if the Electricity Reform Co-ordinator took the action in good faith, or failed in good faith to take the action, in the belief that taking the action, or failing to take the action, was necessary, or convenient, for the purposes of performing the functions, or exercising the powers, of the Electricity Reform Co-ordinator and was not prohibited under section 9(5) .
(3) A relevant person in relation to a State-owned electricity entity to which a request is made under section 15 is indemnified by the Crown against any liability incurred by the person in relation to –
(a) an action taken by the person in relation to the request; or
(b) a failure by the person to take an action in relation to the request –
if the person took the action in good faith, or failed in good faith to take the action, in the belief that taking the action, or failing to take the action, was necessary or convenient to comply with the request.
Part 4
Transfer of Certain Assets, Rights and Liabilities
Part 4 Transfer of Certain Assets, Rights and Liabilities
18
Interpretation of Part 4
18 Interpretation of Part 4
In this Part –
transferee means a body corporate to which any assets, rights or liabilities are transferred under a transfer notice;
transferor means a body corporate from which any assets, rights or liabilities are transferred under a transfer notice.
19
Transfer of assets, rights and liabilities between State-owned electricity entities
19 Transfer of assets, rights and liabilities between State-owned electricity entities
(1) The Treasurer, by a notice (a transfer notice) published in the Gazette, may, as specified in the notice, transfer to another State-owned electricity entity an asset, right, or liability, of a State-owned electricity entity.
(2) A transfer notice may be made on the terms and conditions specified in the notice.
(3) The Treasurer may make more than one transfer notice in relation to an asset, right, or liability, of a State-owned electricity entity.
(4) A transfer notice takes effect on the day specified in the notice.
(5) The transfer notice may specify the consideration on which a transfer is made and the values at which the assets, rights or liabilities are transferred.
(6) The Treasurer, by a notice published in the Gazette, may amend or revoke a transfer notice.
(7) If the Treasurer amends a transfer notice by a notice under subsection (6) , the notice under subsection (6) is to be taken to have taken effect at the same time as the transfer notice.
(8) If the Treasurer revokes a transfer notice by a notice under subsection (6) , the transfer notice is to be taken to have never been in force.
(9) If the Treasurer amends or revokes a transfer notice by a notice under subsection (6) –
(a) any action that is, after the transfer notice takes effect but before the notice under subsection (6) is made, taken by the transferee in relation to the asset, right or liability transferred by the transfer notice to the transferee is to be taken to be an action taken by the transferor; and
(b) any failure by the transferee, after the transfer notice takes effect but before the notice under subsection (6) is made, to take an action in relation to the asset, right or liability transferred to the transferee by the transfer notice is to be taken to be a failure by the transferor.
(10) A notice under this section is not a statutory rule for the purposes of the Rules Publication Act 1953 .
20
Effect of transfer notice
20 Effect of transfer notice
(1) When any assets, rights or liabilities are transferred by a transfer notice, the following provisions have effect:
(a) the assets of the transferor that are the subject of the transfer notice vest in the transferee by virtue of this section and without the need for any further conveyance, transfer, assignment or assurance;
(b) the rights or liabilities of the transferor that are the subject of the transfer notice become by virtue of this section the rights or liabilities of the transferee;
(c) a reference in any Act, in any instrument made under any Act, in any contract, agreement, arrangement or undertaking, or in any document of any kind, to –
(i) the transferor; or
(ii) any predecessor of the transferor –
to the extent to which the reference relates to the assets, rights or liabilities that are the subject of the transfer notice, is taken to be, or include, a reference to the transferee;
(d) any legal, or other, proceedings that –
(i) relate to the assets, rights or liabilities that are the subject of the transfer notice; and
(ii) are commenced before the transfer by or against the transferor or a predecessor of the transferor; and
(iii) are pending immediately before the transfer –
are taken to be proceedings pending by or against the transferee;
(e) any legal, or other, proceedings that –
(i) relate to the assets, rights or liabilities that are the subject of the transfer notice; and
(ii) could have been commenced, before the transfer, by or against the transferor or a predecessor of the transferor –
may be commenced by or against the transferee;
(f) a judgment or order of a court, or other tribunal, that –
(i) relates to the assets, rights or liabilities that are the subject of the transfer notice; and
(ii) is obtained before the transfer by or against the transferor or a predecessor of the transferor –
may be enforced by or against the transferee;
(g) any document, relating to legal, or other, proceedings, that –
(i) relates to the assets, rights or liabilities that are the subject of the transfer notice; and
(ii) has been served on or by a transferor, or a predecessor of the transferor, before the transfer –
is taken, where appropriate, to have been served on or by the transferee;
(h) any act, matter or thing done or omitted to be done –
(i) in relation to the assets, rights or liabilities that are the subject of the transfer notice before the transfer; and
(ii) by, to or in respect of the transferor or a predecessor of the transferor –
is (to the extent to which that act, matter or thing has any force or effect) taken to have been done or omitted by, to or in respect of the transferee.
(2) No compensation is payable to any person or body in connection with a transfer (or an amendment or revocation under section 19(6) of a transfer notice) except to the extent (if any) to which the transfer notice giving rise to the transfer, or the amendment or revocation, so provides.
(3) State tax is not payable in respect of any document prepared to give effect to a transfer notice or an amendment or revocation under section 19(6) of a transfer notice.
(4) A person is not entitled to –
(a) terminate or modify the operation or effect of a contract; or
(b) claim that there has been a breach of or default under a contract; or
(c) claim any remedy –
by reason only of the transfer of that contract (or rights or liabilities under that contract) under a transfer notice or an amendment or revocation under section 19(6) of a transfer notice.
(5) A transfer notice has effect despite any other law, contract or other instrument.
21
Orders transferring employment of employees
21 Orders transferring employment of employees
(1) The Treasurer, by order in writing given to a State-owned electricity entity, may transfer the employment of an employee of the State-owned electricity entity to another State-owned electricity entity specified in the order.
(2) The Treasurer may give more than one order under subsection (1) in relation to one or more employees.
(3) Before transferring the employment of an employee of a State-owned electricity entity, the Treasurer, or a person authorised by the Treasurer, is to consult with the employee.
(4) The consultation with the employee may be in any manner the Treasurer, or a person authorised by the Treasurer, thinks fit, including, but not limited to including, consultation with the employee, a representative of the person or a representative of the employee organisation of which the person is a member.
(5) Despite subsection (4) , consultation with an employee may not be inconsistent with –
(a) any award, or agreement, that applies in relation to the employee under a law of a State, a Territory or the Commonwealth; or
(b) any law of a State, a Territory or the Commonwealth that applies in relation to the employee.
(6) A State-owned electricity entity that is given an order under subsection (1) is to give to each person whose employment is transferred by the order written notice of the transferral.
(7) The Treasurer, by order in writing given to a State-owned electricity entity, may amend or revoke an order under subsection (1) .
(9) If the Treasurer revokes an order under subsection (1) by an order under subsection (7) , the order under subsection (1) is to be taken to have never been in force.
(i) is taken by the employer to whom an employee is or was transferred by the order under subsection (1) ; and
(ii) relates to the employee; and
(iii) occurs after the order under subsection (1) takes effect but before the order under subsection (7) is made –
is to be taken to be an action taken, in relation to the employee, by the employer from whom the employee was transferred; and
(b) any failure that –
(i) is a failure of the employer to whom an employee is or was transferred by the order; and
(ii) relates to the employee; and
(iii) occurs after the order under subsection (1) takes effect but before the order under subsection (7) is made –
is to be taken to be a failure, in relation to the employee, of the employer from whom the employee was transferred.
(11) An order given under this section is not a statutory rule for the purposes of the Rules Publication Act 1953 .
22
Effect of order transferring employment of employee
22 Effect of order transferring employment of employee
(1) If an order given under section 21(1) specifies that the employment of a person referred to in the order (the transferred employee) is, on a day specified in the order, transferred from a State-owned electricity entity (the former employer) to another State-owned electricity entity (the new employer) –
(a) the transferred employee ceases, on that day, to be an employee of the former employer and the former employer ceases to be the employer of the transferred employee; and
(b) the transferred employee becomes, on that day, an employee of the new employer and the new employer becomes the employer of the transferred employee.
(2) A transferred employee –
(a) is taken to have been employed by the new employer on the same terms and conditions as those on which he or she was employed by the former employer; and
(b) except if an award, agreement or law otherwise provides –
(i) retains all entitlements that he or she has accrued as if employment by the new employer were a continuation of employment with the former employer; and
(ii) is entitled to claim those entitlements from the new employer; and
(c) is not entitled to any compensation or other payment in respect of the change of his or her employment by virtue of the order given under section 21(1) that transfers his or her employment.
(3) An award or agreement that had effect in relation to a person immediately before he or she became a transferred employee continues to have effect in relation to the transferred employee, except if another award or agreement or law that applies in relation to him or her after he or she becomes a transferred employee provides otherwise.
(4) A period of service, of the transferred employee, with the former employer is to be taken to be the equivalent period of service with the new employer.
(5) Nothing in this section prevents any of the terms or conditions of employment of a transferred employee being altered by an award, agreement, or law.
Part 5
Sale of Retail Business of Aurora Energy or Subsidiary
Part 5 Sale of Retail Business of Aurora Energy or Subsidiary
23
Sale of retail business of Aurora Energy or subsidiary
23 Sale of retail business of Aurora Energy or subsidiary
(1) The Treasurer, while the shareholding Ministers are the shareholders in relation to Aurora Energy, may sell all or part of the retail business of Aurora Energy or a subsidiary of Aurora Energy.
24 Contents of contracts for sale of retail business
(1) In this section –
contract means –
(a) an agreement, arrangement, undertaking, warranty or contract; or
(b) any part of an agreement, arrangement, undertaking, warranty or contract;
purchaser, in relation to transferring business, means a person to whom all or part of the transferring business is sold under section 23 ;
sale contract means a contract under section 23 for the sale of any part of transferring business and includes –
(a) part of any such contract; and
(b) any amendment, to such a contract, that is effected in any manner agreed by the parties to the contract;
sale day, in relation to any part of the transferring business sold under section 23 , means the day on which the sale of the transferring business is to take effect;
transferor, in relation to transferring business of Aurora Energy, or a subsidiary of Aurora Energy, means Aurora Energy or the subsidiary, respectively;
transferring business means any part of the retail business of Aurora Energy, or of a subsidiary of Aurora Energy, that is sold under section 23 .
(2) A sale contract may –
(a) specify conditions including, but not limited to including –
(i) conditions relating to the transfer of the transferring business to which the sale contract relates; and
(ii) conditions relating to the payment of consideration; and
(b) provide that a right under a contract specified in the sale contract is held by the transferor or the purchaser; and
(c) provide that a liability under a contract specified in the sale contract is a liability of the transferor or the purchaser; and
(d) provide that a reference to the transferor in a contract specified in the sale contract is, or is to include, a reference to the purchaser; and
(e) provide that a purchaser is substituted as a party to a contract, specified in the sale contract, in the place of the transferor, from a date not earlier than the sale day; and
(f) provide that a legal, or other, proceeding instituted by or against the transferor, that relates to the transferring business and is pending immediately before the sale day may be continued by or against the purchaser; and
(g) provide that a legal, or other, proceeding that could have been, immediately before the sale day, instituted, in relation to the transferring business, by or against the transferor may be instituted by or against the purchaser; and
(h) provide that a document served on the transferor, in respect of a legal, or other, proceeding referred to in paragraph (f) is taken to have been served on the purchaser; and
(i) provide that a judgment or order of a court or tribunal obtained by or against the transferor, in relation to the transferring business, may be enforced by or against the purchaser but may not be enforced by or against the transferor; and
(j) provide for any matter that is incidental to the transfer of the transferring business to which the sale contract relates.
(3) Anything provided for in a sale contract in accordance with subsection (2) is taken to take effect in accordance with the terms of the sale contract, despite any other law or any other contract (including any contract specified in the sale contract).
(4) The following provisions apply on and after the sale day in relation to transferring business, except as otherwise provided for in a sale contract:
(a) a legal, or other, proceeding instituted by or against the transferor, that relates to the transferring business and is pending immediately before the sale day may be continued by or against the purchaser;
(b) a legal, or other, proceeding that could have been, immediately before the sale day, instituted, in relation to the transferring business, by or against the transferor, may be instituted by or against the purchaser;
(c) a document served on the transferor, in respect of a legal, or other, proceeding referred to in paragraph (a) , is taken to have been served on the purchaser;
(d) a judgment or order of a court or tribunal obtained by or against the transferor, in relation to the transferring business, may be enforced by or against the purchaser but may not be enforced by or against the transferor;
(e) an obligation of the transferor in relation to a liability that becomes the liability of the purchaser as part of the sale of the transferring business is discharged on the sale day.
Part 6
Transfer to Crown of Remaining Business of Aurora, Transend and Subsidiaries, &c.
Part 6 Transfer to Crown of Remaining Business of Aurora, Transend and Subsidiaries, &c.
25
Interpretation of Part 6
25 Interpretation of Part 6
In this Part –
transfer day, in relation to a transfer order, means the date specified in the order in accordance with section 26(4) as the date on which the transfer of the business to which the order relates takes effect;
transfer order means an order made under section 26(1) ;
transferring business, in relation to a transfer order, means the business that is the subject of the order.
26
Remaining business of Aurora Energy, Transend or subsidiaries may be transferred to Crown
26 Remaining business of Aurora Energy, Transend or subsidiaries may be transferred to Crown
(1) The Treasurer, by order (a transfer order) published in the Gazette, may transfer to the Crown any part of the business of –
(a) Aurora Energy or Transend; or
(b) a subsidiary of Aurora Energy or Transend –
that has not been, at the transfer day, transferred or sold.
(2) A transfer order may only be made after –
(a) the sale of the retail business of Aurora Energy or a subsidiary of Aurora Energy; and
(b) the merger of the network businesses of Aurora Energy and Transend.
(3) The Treasurer may make more than one transfer order in relation to any part of the business of Aurora Energy or Transend or a subsidiary of Aurora Energy or Transend.
(4) A transfer order is to specify the date on which the transfer specified in the order takes effect.
(5) A transfer order may –
(a) specify conditions relating to the transfer; and
(b) provide for any other matter that is incidental to the transfer.
(6) The Treasurer, by an order published in the Gazette, may amend or revoke a transfer order.
(7) If the Treasurer amends a transfer order by an order under subsection (6) , the order under subsection (6) is to be taken to have taken effect at the same time as the transfer order.
(8) If the Treasurer revokes a transfer order by an order under subsection (6) , the transfer order is to be taken to have never been in force.
(9) If the Treasurer amends or revokes a transfer order by an order under subsection (6) –
(a) any action that –
(i) is taken by the Crown in relation to an asset, right or liability transferred to the Crown by the transfer order; and
(ii) is so taken after the transfer order takes effect but before the order under subsection (6) is made –
is to be taken to be an action taken by the State-owned electricity entity from which the asset, right or liability is transferred; and
(b) any failure by the Crown –
(i) to take an action in relation to an asset, right or liability transferred to the Crown by the transfer order; and
(ii) that occurs after the transfer order takes effect but before the order under subsection (6) is made –
is to be taken to be a failure by the State-owned electricity entity from which the asset, right or liability is transferred.
(10) An order under this section is not a statutory rule for the purposes of the Rules Publication Act 1953 .
27
Effect of transfer order
27 Effect of transfer order
(1) On the transfer day in relation to a transfer order –
(a) any business (other than a liability) of –
(i) Aurora Energy or Transend; or
(ii) a subsidiary of Aurora Energy or Transend –
that is business specified in, or transferred by, the order, vests in the Crown; and
(b) any business of –
(i) Aurora Energy or Transend; or
(ii) a subsidiary of Aurora Energy or Transend –
that is a liability specified in, or transferred by, the order, becomes a liability of the Crown.
(2) Except as otherwise provided in a transfer order, on and after the transfer day in relation to the order –
(a) a reference in an existing document –
(i) to Aurora Energy or Transend, or a subsidiary of Aurora Energy or Transend; or
(ii) to the board of directors of Aurora Energy or Transend, or of a subsidiary of Aurora Energy or Transend –
in relation to the transferring business is taken, where appropriate, to be or to include a reference to the Crown; and
(b) a contract made by Aurora Energy or Transend, or a subsidiary of Aurora Energy or Transend, relating to the transferring business but not performed or discharged before the transfer day is taken to have been made by the Crown; and
(c) a legal, or other, proceeding that could have been instituted by or against –
(i) Aurora Energy or Transend; or
(ii) a subsidiary of Aurora Energy or Transend –
immediately before the transfer day and that relates to the transferring business may be instituted by or against the Crown; and
(d) a legal, or other, proceeding that –
(i) is instituted by or against Aurora Energy or Transend, or a subsidiary of Aurora Energy or Transend; and
(ii) relates to the transferring business; and
(iii) is pending immediately before the transfer day –
may be continued by or against the Crown; and
(e) a document that is served on Aurora Energy or Transend, or a subsidiary of Aurora Energy or Transend, in respect of a proceeding referred to in paragraph (d) is taken to have been served on the Crown; and
(f) a judgment or order of a court or tribunal obtained by or against Aurora Energy or Transend, or a subsidiary of Aurora Energy or Transend, in relation to the transferring business may be enforced by or against the Crown but may not be enforced by or against Aurora Energy or Transend, or a subsidiary of Aurora Energy or Transend.
28
Deregistration of Aurora Energy and Transend and subsidiaries
28 Deregistration of Aurora Energy and Transend and subsidiaries
(1) If the Treasurer is satisfied that there are no longer any functions required to be performed by Aurora Energy, the Treasurer may apply, or require Aurora Energy to apply, for the deregistration of Aurora Energy under section 601AA of the Corporations Act.
(2) If the Treasurer is satisfied that there are no longer any functions required to be performed by Transend, the Treasurer may apply, or require Transend to apply, for the deregistration of Transend under section 601AA of the Corporations Act.
(3) If the Treasurer is satisfied that there are no longer any functions required to be performed by a subsidiary of Aurora Energy or Transend, the Treasurer may require the subsidiary to apply for the deregistration of the subsidiary under section 601AA of the Corporations Act.
(4) A requirement under this section is to be in writing.
(5) A company must comply with a requirement imposed on it under this section.
Part 7
Miscellaneous
Part 7 Miscellaneous
29
Relationship of this Act to Corporations Act
29 Relationship of this Act to Corporations Act
To the extent that any provision of this Act is incapable of concurrent operation with the Corporations Act, that provision is declared to be a Corporations legislation displacement provision for the purposes of section 5G of the Corporations Act.
30
Relationship of this Act to Competition and Consumer Act 2010 of the Commonwealth
30 Relationship of this Act to Competition and Consumer Act 2010 of the Commonwealth
Anything specified in, and specifically authorised by, this Act, or regulations made under this Act, is exempted from Part IV of the Competition and Consumer Act 2010 of the Commonwealth.
31
Application of section 20 of Electricity Companies Act 1997
31 Application of section 20 of Electricity Companies Act 1997
The sale or transfer of any contract, business or other asset of a State-owned electricity entity under this Act is not a sale or disposal of all or part of a transmission system or a distribution network for the purposes of section 20 of the Electricity Companies Act 1997 and that section does not, despite anything to the contrary in that section, apply –
(a) in relation to such a sale or transfer under this Act; or
(b) to a provision of this Act.
32
Power to disclose information
32 Power to disclose information
(1) Each of the following persons may disclose information (other than information to which section 9 relates) for the purposes of facilitating a sale or transfer under this Act:
(a) a State-owned electricity entity;
(b) a director, officer, employee, or agent, of a State-owned electricity entity;
(c) the Treasurer;
(d) a person providing professional advice to the Crown on any matter relating to such a sale or transfer;
(e) the Auditor-General;
(f) a person, or a person who is a member of a class of persons, authorised in writing by the Treasurer to disclose information.
(2) Information for the purposes of facilitating a sale or transfer under this Act (other than information to which section 9 relates) may only be disclosed by a person referred to in subsection (1) to the following persons:
(a) a potential purchaser of an asset or right to which a sale under this Act relates;
(b) a director, officer, employee, or agent, of a potential purchaser;
(c) a person providing professional advice to the potential purchaser on any matter relating to the potential purchase;
(e) a director, officer, employee, or agent, of a State-owned electricity entity;
(f) a person, or a person who is a member of a class of persons, authorised in writing by the Treasurer to receive the information.
33
Protection in relation to disclosure or use of certain information
33 Protection in relation to disclosure or use of certain information
(1) The disclosure or use of information in the possession or control of –
(a) a State-owned electricity entity; or
(b) a current or former member of the board of directors of, a chief executive officer of, or an officer, employee or agent of, a State-owned electricity entity; or
(c) the Electricity Reform Co-ordinator or a person acting on behalf of the Electricity Reform Co-ordinator; or
(d) a State Service officer or State Service employee or an authorised person under section 9 –
is authorised despite any other law, contract or other instrument to the contrary, if the disclosure or use is reasonably required for, or in connection with, ensuring the electricity reform objectives are achieved or the electricity reform measures are implemented.
Any thing done or omitted in good faith that is done or omitted under, or authorised by, this Act or a direction or request under section 8 , section 9 or section 15 , does not, except as otherwise expressly provided by or under this Act or as provided or agreed by the person doing or omitting the thing –
(a) terminate or modify a contract, other instrument or obligation; or
(b) give rise to a right to terminate or modify a contract, other instrument or obligation by fulfilling a condition or in any other manner; or
(c) release a surety or other obligee wholly or in part from an obligation; or
(d) give rise to any right or remedy by a party to a contract or other instrument; or
(e) constitute a breach of a contract or other instrument; or
(f) constitute a civil or criminal wrong; or
(g) constitute a breach of confidence.
35
Exemption from State tax
35 Exemption from State tax
(1) The Treasurer may determine that State tax is not payable in respect of any document prepared in relation to, or for the purposes of, any sale under this Act.
(2) A determination is to be made by certificate provided to the person who would otherwise be required to pay the State tax.
(3) State tax is not payable in respect of the transfer of any assets, rights or liability of any State-owned electricity entity to another State-owned electricity entity.
36
No Crown guarantee
36 No Crown guarantee
The obligations of a State-owned electricity entity are not guaranteed by the Crown, except in so far as the obligation is a liability transferred to the Crown by the operation of section 27 .
37
Disputes as to whether business is transferred
37 Disputes as to whether business is transferred
(1) If any dispute arises –
(a) as to whether any business of a State-owned electricity entity is transferred under Part 4 or 6 to another State-owned electricity entity or the Crown; or
(b) as to whether any, or any part of any, contract relates to business transferred under Part 4 or 6 to another State-owned electricity entity or the Crown –
the Treasurer may determine the matter and is to provide written notice of that determination to any State-owned electricity entity to which the business relates.
(2) The determination of the Treasurer under subsection (1) as to whether any business is transferred under this Act is final and binding on –
(a) each State-owned electricity entity to or from which the business is transferred under this Act; and
(b) the Crown.
38
Treasurer may amend constitution of State-owned electricity entity
38 Treasurer may amend constitution of State-owned electricity entity
(1) In this section –
amend means do any one or more of the following:
(a) omit matter;
(b) insert matter;
(c) omit matter and substitute any other matter.
(2) Despite anything to the contrary in the constitution of a State-owned electricity entity, the Treasurer may, for the purpose of facilitating a sale or transfer under this Act, amend, or revoke and substitute, the constitution of a State-owned electricity entity.
Division 3
Other matters
Division 3 Other matters
39
Extra-territorial operation
39 Extra-territorial operation
(1) It is the intention of the Parliament of Tasmania that the operation of this Act should, as far as possible, include operation in relation to the following:
(a) things situated in or outside the territorial limits of the State;
(b) acts, transactions and matters done, entered into or occurring in or outside the territorial limits of the State;
(c) things, acts, transactions and matters (wherever situated, done, entered into or occurring) that would, apart from this Act, be governed or otherwise affected by the law of another State, a Territory, the Commonwealth or a foreign country.
(2) Without limiting subsection (1) , it is the intention of the Parliament of Tasmania that the provisions of this Act operate in relation to the things, acts, transactions and matters referred to in that subsection even if the rules of private international law (whether at general law or as provided by legislation) would require the application of a law other than this Act instead of the provisions of this Act.
40
Decisions of shareholding Ministers not reviewable
40 Decisions of shareholding Ministers not reviewable
A decision of a shareholding Minister is not subject to review, whether judicial or otherwise.
41
Regulations
41 Regulations
(1) The Governor may make regulations for the purposes of this Act.
(2) The regulations may be made so as to apply differently according to matters, limitations or restrictions, whether as to time, circumstance or otherwise, specified in the regulations.
(3) The regulations may authorise any matter to be from time to time determined, applied or regulated by a shareholding Minister or the Electricity Reform Co-ordinator.
(4) The regulations may –
(a) provide for savings or transitional matters necessary or expedient for bringing this Act into operation; and
(b) provide for any of those savings or transitional matters to take effect when this Act commences or on a later day specified in the regulations, whether the day so specified is before, on or after the day on which the regulations are made.
(a) the administration of this Act is assigned to the Minister for Energy and Resources; and
(b) the department responsible to that Minister in relation to the administration of this Act is the Department of Treasury and Finance.
Source text: opening excerpt
Sourced from Tasmanian Legislation Online (legislation.tas.gov.au), CC BY 4.0.
Part 1 Preliminary
Part 1 Preliminary
1 Short title
1 Short title
This Act may be cited as the Electricity Reform Act 2012 .
2 Commencement
2 Commencement
This Act commences on the day on which this Act receives the Royal Assent.
3 Relationship to other State legislation
3 Relationship to other State legislation
If a provision of this Act is inconsistent with a provision of the Electricity Companies Act 1997 , the Hydro-Electric Corporation Act 1995 , the Government Business Enterprises Act 1995 , the Electricity Supply Industry Act 1995 , the Electricity Supply Industry Expert Panel Act 2010 or the Tamar Valley Power Station Act 2008 , the provision of this Act prevails to the extent of the inconsistency.
4 Interpretation
4 Interpretation
(1) In this Act, unless the contrary intention appears –
asset includes any, and any part of any, property, business or operation;
Aurora Energy means Aurora Energy Pty Ltd (ABN 85 082 464 622);
Aurora Energy (Tamar Valley) means Aurora Energy (Tamar Valley) Pty Ltd (ACN 123 391 613);
business, in relation to a State-owned electricity entity, means –
(a) the business conducted by the entity; and
(b) the goodwill of that business; and
(c) any asset of the entity; and
(d) the rights, liabilities, duties and obligations of the entity, whether those rights, liabilities, duties or obligations are present or future and whether vested or contingent –
and includes a part of the business of the entity;
Sets out legal effects of transfers and orders: automatic vesting/assignment without further conveyance (ss 20(1)(a)-(b), 27(1)); continuation of proceedings, service and enforcement against transferees or the Crown (ss 20(1)(d)-(g), 27(2)(c)-(f)); transfers override other laws or contracts (ss 20(5), 24(3), 27(2)).
Creates information-sharing powers and limits: Treasurer may direct disclosure of Expert Panel material to the Electricity Reform Co‑ordinator (s 9); the Co‑ordinator may disclose to authorised persons for functions under the Act (s 9(4)-(7)); separate provisions authorise disclosure to facilitate sales/transfers (s 32) and permit use/disclosure otherwise restricted by law if reasonably required for reform (s 33).
Provides indemnities and immunities for officials and those implementing directions or requests under the Act, subject to good‑faith limits (ss 10, 17, 34).
Declares specific relationships with other law: displacement where inconsistent with certain State Acts (s 3), a Corporations Act displacement declaration (s 29), and an exemption from Part IV of the federal Competition and Consumer Act 2010 where activities are specified and authorised by the Act or regulations (s 30). It exempts specified transfer documents from State tax (ss 20(3), 35).
Removes judicial or other review of shareholding Ministers’ decisions (s 40), and grants the Treasurer final, binding authority to determine disputes over whether business has been transferred (s 37).
The Act therefore converts policy objectives into concrete statutory powers to reallocate assets, rights, liabilities and employees within the public sector, to sell retail businesses to the private sector, and to vest residual businesses in the Crown. It does so by authorising transfer notices, transfer orders and sale contracts that vest property without further conveyance and override other laws or contractual rights. The Act also creates administrative mechanisms to obtain information and direct State-owned entities, while providing indemnities and legal protections for officials and participants acting under the Act.
The Act frames these mechanics against explicit objectives (s 5). The statutory design privileges centralised executive control (shareholding Ministers and the Treasurer) and fast statutory transfer tools (Gazette notices/orders that take effect on specified dates), while limiting some functions to specified time frames (s 11, s 12) and embedding procedural protections for employees (ss 21-22). It also modifies the legal environment for purchasers and third parties by declaring transfers effective despite other law (ss 20(5), 24(3), 27(2)) and by exempting specified actions from federal competition law where authorised by the Act (s 30).
Main concepts
The Act uses a compact set of statutory concepts to implement reform. Key concepts and their legal consequences are summarised below, with section references.
Electricity reform objectives (s 5). The Act defines four explicit policy aims: reasonably low prices consistent with financial viability; safe, secure, reliable supply; maximising the renewable generation advantage for Tasmania; and State-owned entities’ financial viability and efficient operation. These objectives are the statutory touchstone for permitted measures (s 6) and the Ministers’ actions (s 7-8).
Electricity reform measures (s 6). The Act lists illustrative measures that may be taken to achieve the objectives, including full retail competition, restructuring of State‑owned entities, network integration (distribution integrated with transmission), sale/transfer of Tamar Valley business, independent regulation of Hydro‑Electric Corporation wholesale contracts, and sale of Aurora’s retail business. Subsection (2) expressly preserves other measures not listed.
Shareholding Ministers (s 4 definition; ss 7-8). Defined as the Treasurer and the Minister, they are the primary decision-makers. They may take any actions they think necessary to achieve objectives (s 7(1)) and may jointly issue directions to State‑owned electricity entities (s 8).
State‑owned electricity entities (s 4 definition). The Act defines the class comprehensively: Aurora Energy, Transend, companies under Electricity Companies Act 1997, the Hydro‑Electric Corporation and their subsidiaries. Many of the Act’s powers attach to interactions with these bodies (transfer notices, orders, directions).
Electricity Reform Co‑ordinator (s 12, s 13-16). A temporary office held by the Secretary of the responsible department (s 12(2)). Functions include assisting Ministers, seeking information, overseeing implementation, and facilitating sales/transfers. The office has powers to examine assets and records (s 14), request information and assistance from State‑owned entities (s 15), delegate functions (s 16), and disclose information to authorised persons subject to limitations (s 9).
Transfer notice (Part 4, ss 18-20). A Gazette notice by the Treasurer may transfer assets, rights or liabilities between State‑owned electricity entities (s 19). Effect is immediate on the specified date, with assets vesting in the transferee without further conveyance (s 20(1)(a)), and rights and liabilities becoming those of the transferee (s 20(1)(b)). Transfer notices override other law (s 20(5)). The Treasurer may amend or revoke notices (s 19(6)-(9)).
Transfer order to the Crown (Part 6, ss 25-27). The Treasurer may, by Gazette order, transfer remaining parts of Aurora, Transend or their subsidiaries’ businesses to the Crown (s 26). The order takes effect on the transfer day specified in the order (s 26(4)) and the business vests in the Crown (s 27(1)). Transfer orders are constrained to occur only after certain conditions (sale of retail business and network merger) (s 26(2)).
Sale of retail business (Part 5, ss 23-24). The Treasurer may sell all or part of Aurora’s retail business or a subsidiary’s retail business (s 23). Sale is on terms the Treasurer thinks fit (s 23(2)); the Treasurer must have regard to achieving a fair and reasonable price (s 23(4)). The Act provides contractual scaffolding for sale contracts (s 24), including transfer of proceedings, substitution as party and consequences for service and enforcement.
Employee transfer (ss 21-22). The Treasurer may transfer employment from one State‑owned entity to another by written order (s 21). Consultation is required before transfer (s 21(3)-(4)); transferred employees retain accrued entitlements and terms of employment (s 22(2)-(4)), and awards or agreements continue to apply unless another applies.
Information and confidentiality limits (ss 9, 32-33). The Treasurer can require production of Expert Panel information (s 9); the Co‑ordinator can only use such information for functions under the Act and may give it to authorised persons (s 9(5)-(7)). The Act also authorises disclosure of other information for sales/transfers (s 32) and allows disclosure or use of information despite other law where reasonably required to implement reform (s 33), subject to specified limits.
Indemnity and immunity (ss 10, 17, 34). Officials and relevant persons are indemnified by the Crown for liabilities incurred acting in good faith in compliance with directions or requests under the Act. Actions done in good faith under the Act do not, except as expressly provided, terminate contracts or give rise to rights to terminate, or constitute breach of confidence, civil or criminal wrong (s 34).
Legal effect and overrides (ss 20(5), 24(3), 27(2), 29-30). Transfers and contracts under the Act take effect despite other laws or contracts; certain provisions displace Corporations Act concurrent operation (s 29); and actions authorised by the Act or regulations are exempt from Part IV of the Competition and Consumer Act 2010 (s 30).
These concepts form a toolkit that converts executive decisions into immediate legal effects: transfers, sales and employee movements happen by statutory notice, vesting occurs without further conveyance, the Crown may assume business and liability, and the Act relaxes or overrides many usual legal constraints to permit rapid structural change.
Who it affects
The Act primarily affects four categories of actors: State-owned electricity entities and their officers, employees and creditors; potential private purchasers and their advisers; customers and market participants; and public officials (shareholding Ministers, Treasurer, Electricity Reform Co‑ordinator). Each group faces different legal duties, entitlements and risks under the Act.
State-owned electricity entities. The Act places the core obligations and the largest immediate practical impact on entities defined in s 4: Aurora Energy, Transend, the Hydro‑Electric Corporation and companies created under the Electricity Companies Act 1997, and their subsidiaries. These entities may receive directions from the shareholding Ministers requiring them to implement reform (s 8). They are subject to transfer notices (s 19) that can vest assets, rights and liabilities in other State entities; to sale under s 23; and to transfer orders vesting business in the Crown (s 26-27). Entities must comply with requests for information and assistance from the Electricity Reform Co‑ordinator (s 15(1)-(2)). Their constitutions may be amended by the Treasurer to facilitate sale or transfer (s 38). Entities will also be the parties required to give employee notice under s 21(6).
Directors, officers, employees and agents of those entities. These persons are subject to directions and requests: the board, the CEO and officers must comply with directions (s 8(4)-(6)); employees’ employment can be transferred by order (s 21). The Act grants indemnities to relevant persons who act or omit to act in good faith to implement directions or requests (s 10, s 17). Employees transferred keep accrued entitlements and their service is treated as continuous (s 22(2)-(4)); they are not entitled to compensation solely because the transfer occurred (s 22(2)(c)).
Potential purchasers, their directors, officers and advisers. The Act enables sales of Aurora’s retail business (s 23), and provides for sale contracts to transfer rights, liabilities and proceedings to purchasers (s 24). The Act authorises disclosure of information to potential purchasers and their advisers (s 32). Purchasers benefit from statutory mechanisms that make transfers effective despite other law (s 24(3)), and vendors are protected from claims by reason only of contract transfers (s 20(4), s 24(3)). Purchasers must note that sales are “on the terms the Treasurer thinks fit” (s 23(2)) and that net proceeds must be paid into the Public Account (s 23(5), as amended).
Customers and market participants. The Act’s policy objective is to introduce full retail competition so customers have choice (s 6(1)(a)). In practice, customer contracts may be transferred under sale contracts (s 24(2)(d)-(e)); customers may face changes in their retailer through sale or transfer without those changes constituting breaches or giving rise to termination rights solely because of the transfer (s 20(4), s 24(3)). The Act exempts specified authorised actions from federal competition rules (s 30), which may affect competitive conduct and remedies under the Competition and Consumer Act.
Creditors, counterparties, litigants and service providers. Contracts, proceedings and judgments relating to transferred business are, in many instances, taken to be rights/obligations of the transferee or the Crown (ss 20(1)(d)-(f), 27(2)(c)-(f)). This alters counterparties’ procedural and substantive positions: documents served on a transferor may be taken as served on a transferee (s 20(1)(g), s 24(4)(c)), and judgments may be enforced against the transferee or the Crown (ss 20(1)(f), 27(2)(f)). The Act limits entitlement to compensation on transfers except where the transfer notice/order provides (s 20(2)). The Treasurer’s determination whether a business is transferred is final and binding on State entities and the Crown (s 37(2)).
The Treasurer, shareholding Ministers and the Electricity Reform Co‑ordinator. These actors decide, direct and implement reform. The Treasurer publishes transfer notices and orders in the Gazette (ss 19(1), 26(1)), may amend/revoke those notices/orders (ss 19(6), 26(6)), and has final determination powers on disputes as to what has been transferred (s 37). Shareholding Ministers may issue directions and are not subject to review for their decisions (s 40). The Electricity Reform Co‑ordinator has rights to obtain information, to examine assets/records, and to oversee implementation (ss 13-15).
Third parties seeking judicial review or contractual remedies. Section 40 removes reviewability of shareholding Ministers’ decisions. That restricts the scope for judicial oversight of broad policy and direction decisions, though it does not necessarily remove reviewability of other administrative acts not characterised as shareholding Ministers’ decisions. The Act, however, generally protects actions done in good faith under it from constituting breaches or civil or criminal wrongs (s 34).
In short, the direct legal obligations and potential benefit shifts are concentrated on State-owned electricity entities and their officers, with secondary effects on purchasers, counterparties and customers due to statutory vesting, contract substitution and enforcement consequences. The Act also reshapes the governance and accountability architecture by centralising control in Ministers and the Treasurer, and by providing statutory protections and finality for executive decisions within the reform programme.
Key duties and rights
The Act sets out specific duties of State actors, rights for transferees and purchasers, and statutory protections. Below are the principal duties and rights with precise statutory references.
Duties of shareholding Ministers and the Treasurer
Duty to take actions thought necessary to achieve electricity reform objectives and implement reform measures (s 7(1)). This is a broad, discretionary statutory duty to act, not a duty to obtain particular outcomes.
Power to jointly issue written directions to State-owned electricity entities to ensure objectives are achieved or measures implemented (s 8(1)). Directions may require specified actions or “all reasonable steps” to comply (s 8(2)). The obligation to comply extends to the entity, its board, CEO and all officers (s 8(4)-(6)). Directions issued must be detailed in the entity’s annual report (s 8(7)-(8)).
Duties of State‑owned electricity entities and their officers
Must comply with directions from shareholding Ministers (s 8(4)). The board, CEO and officers must do all things necessary or convenient to ensure compliance (s 8(4)).
Must comply with requests by the Electricity Reform Co‑ordinator to provide information, permit access, provide advice or assistance (s 15(1)-(2)). A person is not taken to contravene a contract by reason only of providing information under s 15(4).
Must implement transfer orders and transfer notices when published by the Treasurer (ss 19, 26). Where employees are ordered transferred, the employer must give written notice to each person (s 21(6)).
Rights and effects on transferees, purchasers and the Crown
Automatic vesting without further conveyance: assets transferred under a transfer notice vest in the transferee by operation of s 20(1)(a); similarly, business transferred to the Crown vests by s 27(1).
Rights and liabilities transfer by operation of law: rights and liabilities of the transferor become those of the transferee (s 20(1)(b)), and liabilities specified as transferred to the Crown become Crown liabilities (s 27(1)(b)).
Continuation and substitution of proceedings and enforcement: pending proceedings relating to transferred assets are taken to be proceedings by/against the transferee (s 20(1)(d)); proceedings that could have been instituted by or against the transferor may be instituted by/against the transferee (s 20(1)(e)); judgments may be enforced by/against the transferee (s 20(1)(f)).
Contractual substitution and protections: sale contracts may substitute purchasers as parties and provide that documents served on transferor are taken as served on the purchaser (s 24(2)(d)-(f), (h)). Transfers under sale contracts take effect despite other law (s 24(3)).
Right for Treasurer to determine disputes final and binding: the Treasurer’s determination on whether business has been transferred is final and binding on all State-owned entities and the Crown (s 37(2)).
Protections, indemnities and immunities
Indemnity for relevant persons who act in good faith to implement directions: Crown indemnifies relevant persons (board members, CEO, officers, employees or agents) for any liability incurred in relation to an action or a failure to act in relation to a direction, if taken in good faith believing it was necessary or convenient (s 10(2)).
Indemnity for persons complying with s 9 directions to provide Expert Panel information (s 10(3)) and for persons provided information under s 9 (s 10(4)).
Electricity Reform Co‑ordinator and persons subject to s 15 requests are indemnified for liabilities incurred acting in good faith (s 17(2)-(3)).
Broad protection for things done or omitted in good faith under the Act: such acts do not, except as otherwise provided, terminate or modify contracts, give rise to termination rights, release sureties, give rise to remedies, constitute breach of contract, civil or criminal wrong, or breach of confidence (s 34).
Statutory overrides and relationship with other law
Transfers and sale contracts operate despite any other law or contract (s 20(5), s 24(3), s 27(2)).
To the extent of inconsistency, this Act prevails over listed State Acts (s 3).
Declared to be a Corporations legislation displacement provision for s 5G of the Corporations Act where incapable of concurrent operation (s 29).
Anything specified and specifically authorised by this Act or regulations is exempt from Part IV of the Competition and Consumer Act 2010 (s 30).
Tax treatment and transaction costs
State tax is not payable on documents prepared to give effect to a transfer notice or its amendment/revocation (s 20(3)).
The Treasurer may determine State tax is not payable in respect of documents prepared for the purposes of any sale under the Act, by certificate (s 35(1)-(2)).
Employee rights
Employees transferred by order are taken to be employed by the new employer on the same terms and conditions (s 22(2)(a)); retain accrued entitlements unless award/agreement/law provides otherwise (s 22(2)(b)); service counts as continuous (s 22(4)). Employees are not entitled to compensation solely because of the transfer (s 22(2)(c)).
Information and confidentiality duties
Persons directed to provide Expert Panel information must comply (s 9(2)-(3)), but the Co‑ordinator and authorised persons are restricted to using the information only for the Co‑ordinator’s functions and may not provide it outside the authorised class (s 9(5)-(7)).
Disclosure to facilitate sale/transfer is authorised to defined recipients (s 32(1)-(2)). s 33 permits use and disclosure of information despite other law if reasonably required for implementing reform, subject to limitations.
These duties and rights create a framework where executive direction and statutory transfer instruments effect organisational change, while providing indemnities and protections for persons acting under the Act. For counterparties and third parties, the right to look to transferees or the Crown for enforcement and liabilities is central; for officials and officers the right to Crown indemnity is central, subject to good‑faith boundaries.
Penalties and enforcement
The Act does not create an express schedule of criminal penalties or large pecuniary fines for breaches in the manner of a regulatory enforcement regime. Instead, it focuses on compulsory compliance, administrative transfer mechanisms, indemnities, and protections for actions taken under the Act. Enforcement and consequence mechanisms are therefore procedural and statutory rather than punitive. Key enforcement-related provisions are these.
Compulsory compliance and binding effect
Compliance with directions and requests is mandatory. Shareholding Ministers may issue directions to State-owned electricity entities, and the entities, their boards, CEOs and officers must comply and may do “all things necessary or convenient” to ensure compliance (s 8(1), (4)). The Electricity Reform Co‑ordinator’s requests for information and assistance must be complied with by the State-owned entity, and officers, employees or agents (s 15(1)-(2)). These are obligations enforceable as administrative law obligations against public bodies; the Act itself makes no separate criminal penalty for non‑compliance.
Finality and non‑reviewability
Decisions of shareholding Ministers are declared not subject to review, whether judicial or otherwise (s 40). This eliminates judicial or administrative review with respect to those decisions characterised as shareholding Ministers’ decisions. Separately, the Treasurer’s determinations about whether business is transferred are final and binding on the State entities and the Crown (s 37(2)). This limits the available remedies for aggrieved parties disputing transfer scope.
Transfer effectiveness and override
Transfers by transfer notice or transfer order take effect automatically on the date specified and operate “despite any other law, contract or other instrument” (s 20(4)-(5), s 27(2)). This provision operates as an enforcement mechanism: the statutory transfer itself displaces conflicting contractual or statutory rights.
Protection against claims arising from implementation
The Act protects persons who act or omit to act in good faith under the Act from civil and criminal liability to the extent provided (s 34). Crown indemnities are provided to relevant persons who comply with directions (s 10) and to the Electricity Reform Co‑ordinator and persons responding to requests (s 17). These provisions limit the risk of enforcement action against officers who implement directions in good faith.
Tax and procedural enforcement
The Act exempts transfer-related documents from State tax (s 20(3)) and permits the Treasurer to certify that State tax is not payable for sale documents (s 35(1)-(2)). These provisions reduce the fiscal cost of transactions and remove a common administrative impediment.
Publication and accountability mechanisms
Directions issued under s 8, and directions to subsidiaries under s 8(5), are to be published in the annual report of the relevant entity (s 8(7)-(8)). The publication requirement provides a post facto accountability mechanism, but the Act simultaneously removes judicial review of shareholding Ministers’ decisions (s 40).
Statutory exceptions to remedies
Where a transfer is effected, s 20(2) states no compensation is payable to any person or body in connection with a transfer (or amendment/revocation) except to the extent the transfer notice so provides. This limits statutory compensation exposure unless the notice expressly provides for it.
Administrative rather than criminal enforcement
The Act’s enforcement regime is focused on administrative compulsion, statutory vesting and indemnities rather than on creating new offences or court-based penalty structures. Compliance is driven by statutory obligation and the legal effect of transfers/orders rather than by an express criminal sanction regime.
In short, enforcement is achieved by mandatory duties to comply with directions and requests, by the immediate legal effects of transfer instruments that override other law, and by final administrative decision-making anchored in the Treasurer and shareholding Ministers, with protections and indemnities to reduce exposure of implementing officers. Remedies against executive decisions are constrained by the non‑reviewability clause (s 40) and by the finality of Treasurer determinations (s 37). Where compensation is concerned, the Act limits statutory entitlement to compensation absent explicit provision in the transfer instrument (s 20(2)).
How it interacts with other laws
The Act explicitly calibrates its interaction with State and Commonwealth law in several express provisions. These interactions create legal priorities, carve-outs and procedural effects that practitioners and counterparties must account for.
Priority over certain State Acts
If a provision of this Act is inconsistent with a provision of the Electricity Companies Act 1997, the Hydro‑Electric Corporation Act 1995, the Government Business Enterprises Act 1995, the Electricity Supply Industry Act 1995, the Electricity Supply Industry Expert Panel Act 2010, or the Tamar Valley Power Station Act 2008, the provision of this Act prevails to the extent of the inconsistency (s 3). This makes the Act a statutory source of supremacy across a defined set of State legislation.
Corporations Act displacement
To the extent any provision of this Act is incapable of concurrent operation with the Corporations Act 2001 (Cth), the Act is declared a Corporations legislation displacement provision for the purposes of s 5G of the Corporations Act (s 29). That permits certain corporate law exceptions where the state reform measures cannot operate concurrently with the Corporations Act.
Competition and Consumer Act exemption
Anything specified in, and specifically authorised by, this Act or regulations made under it is exempted from Part IV of the Competition and Consumer Act 2010 (Cth) (s 30). Part IV contains federal prohibitions on restrictive trade practices; the exemption therefore permits State-authorised conduct that otherwise might breach federal competition law, but only where the specific action is authorised by the Act or regulations.
Effect on State tax and transaction documents
The Act exempts State tax on documents prepared to give effect to transfer notices and their amendments/revocations (s 20(3)), and the Treasurer may determine State tax is not payable in respect of documents prepared in relation to sales under the Act (s 35). Those provisions interact with State revenue law to remove taxes that would otherwise apply to transfers, reducing transaction costs.
Overrides of contracting and other law
Transfers and sale contracts take effect “despite any other law, contract or other instrument” (s 20(5), s 24(3), s 27(2)). This is an express statutory override of pre-existing private contractual arrangements and other statutory regimes, subject to the limits of the constitution. The Act therefore creates a statutory pre-emption affecting contractual rights, proceedings, service and enforcement.
Non-reviewability and administrative law
Section 40 declares that decisions of shareholding Ministers are not subject to review, whether judicial or otherwise. That interacts with administrative law doctrines and limits remedies available under the Administrative Decisions (Judicial Review) Act or common-law judicial review, insofar as the matters in question are captured by the non-reviewability clause.
Statutory publication and non-statutory rule status
Transfer notices and certain orders are not statutory rules for the purposes of the Rules Publication Act 1953 (s 19(10), s 21(11), s 26(10)). That affects the usual legislative scrutiny and disallowance processes applicable to subordinate legislation. Practitioners should note that Gazette notices effecting transfers are not subject to parliamentary disallowance via the Rules Publication Act.
Information law and confidentiality
The Act authorises certain disclosures that might otherwise be prohibited by contract or other law (s 33). It also imposes internal limits on the use of Expert Panel information (s 9(5)-(7)). This interacts with privacy legislation, confidentiality clauses in commercial contracts and secrecy or public interest obligations; the Act expressly authorises disclosures reasonably required to implement reform, subject to s 9 limitations.
Employee law interaction
Employee transfers are governed by ss 21-22, and consultation requirements cannot be inconsistent with applicable awards, agreements or other law (s 21(5)). The Act preserves the application of existing awards and agreements unless another award/agreement/law provides otherwise (s 22(3)), and treats service continuity for entitlements (s 22(4)). These provisions interact with industrial relations and workplace law.
Crown guarantee and liability
The Act declares that the obligations of a State‑owned electricity entity are not guaranteed by the Crown, except where the liability is transferred to the Crown under s 27 (s 36). This interacts with creditors’ expectations and with public finance mechanisms.
Finality in disputes
The Treasurer’s determination on whether business has been transferred is final and binding on the entities and the Crown (s 37(2)). This limits recourse to courts for dispute resolution on transfer scope; it interacts with ordinary dispute-resolution doctrine and with contract law remedies.
Regulations and delegated instruments
The Governor may make regulations for the purposes of the Act (s 41). Regulations may vary application by time or circumstance, authorise matters to be determined by the shareholding Minister or the Electricity Reform Co‑ordinator, and provide savings or transitional matters. Regulations will therefore be a primary vehicle for refining how the Act operates in practice and for creating authorisations that can interact with federal competition law exemption (s 30).
In summary, the Act is constructed to be operationally dominant in its sector: it declares precedence over an explicit list of State Acts, permits displacement of Corporations Act concurrency, exempts authorised conduct from federal competition law, and creates statutory overrides of contracts and other law for transfers and sales. At the same time, it leaves room for interaction with awards, agreements and other employee law, and permits subordinate regulations to define details and transitional measures.
Amendment history
The source text contains express amendment annotations for two items in Part 5; the Act as provided shows the following recorded amendments.
Section 23(1A) inserted by No. 20 of 2025, s 8, applied 27 November 2025. The inserted subsection requires that the Treasurer may only sell all, or part, of the retail business under s 23(1) if a motion approving the proposed sale is passed by at least two-thirds of the members of each House of Parliament. The insertion introduces an express parliamentary supermajority control on the sale of Aurora’s retail business while the shareholding Ministers are shareholders.
Section 23(5) amended by No. 38 of 2020, Schedule 1, applied 27 November 2020. The amended subsection confirms that net proceeds of a sale under s 23 are to be paid into the Public Account. The amendment aligns proceeds handling with public finance practice.
Other amendment or commencement annotations in the provided text
Commencement: the Act commences on the day it receives Royal Assent (s 2). The Electricity Reform Co‑ordinator is to exist until expiry of 30 June 2015 under s 12(1), and s 11 restricts exercise of certain powers after 30 June 2015, but those are temporal provisions rather than amendments.
Not recorded in the provided text are any other amendment histories. Practitioners should note that the Act contains express temporal limits on certain instruments (for example, the Co‑ordinator and certain Division 2 powers are limited after 30 June 2015 under ss 12 and 11). The insertion of s 23(1A) in 2025 notably changes the constitutional/legislative requirement for sale of Aurora’s retail business by adding a parliamentary supermajority approval step. The 2020 amendment to s 23(5) clarifies financial treatment of sales proceeds.
For comprehensive transactional or advisory work, reviewers should consult the consolidated statute book or electronic legislation database for any amendments after the dates shown, and for the full text of the amending instruments (No. 20 of 2025; No. 38 of 2020). The Act itself permits regulations that may authorise further matters or transitional arrangements (s 41(3)-(4)), so consequential subordinate instruments may also materially alter operation.
Litigation history
The text supplied does not record any judicial or tribunal decisions or litigation history. The Act itself contains provisions that constrain judicial review and create administrative finality, which will affect potential litigation strategies:
Section 40 expressly states that a decision of a shareholding Minister is not subject to review, whether judicial or otherwise, which narrows avenues for judicial challenge to executive decisions characterised as shareholding Ministers’ decisions. That clause will be determinative of standing in cases where a decision is squarely a shareholding Minister decision.
Section 37 declares the Treasurer’s determination as final and binding on State-owned electricity entities and the Crown concerning whether business has been transferred under Parts 4 or 6. That finality affects prospects of litigating transfer-scope disputes in court.
Because the source contains no named cases or reported litigation, the Act’s practical litigation footprint (whether it has been challenged, how courts have treated s 40 or s 37, and how indemnities/overrides have been interpreted) cannot be stated from the provided text. Practitioners should therefore:
Search Tasmanian and federal court databases, and specialist energy-law reports, for cases citing this Act or challenging particular transfers, sale contracts or directions. Relevant issues to track would include: constitutional challenges (if any), interpretation of the s 40 non‑reviewability clause, scope of s 20/27 automatic vesting, and how courts have treated s 29 Corporations Act displacement declarations.
Check whether any disputes arose in the course of implementing transfers or sales (for example, creditor enforcement attempts against transferors after a transfer notice, or employee disputes arising from transfers), and how courts applied s 20, s 24 or s 27 to override or uphold contractual and statutory rights.
Absent reported litigation in the supplied text, counsel should prepare for litigation risk where non‑State third parties claim prejudice from transfers or sales by scrutinising statutory instruments (transfer notices, transfer orders, sale contracts), the Treasurer’s determinations, and the record of consultation and disclosure under ss 15 and 32. The indemnity and non‑liability provisions (ss 10, 17, 34) provide statutory defences that may be relied upon by State actors and the Co‑ordinator in any contested proceedings.
Gotchas
Several features of the Act create particular practical risks or traps for practitioners, bidders, employees and counterparties. These are concrete mechanisms in the statute that often surprise those used to ordinary commercial transactions or administrative processes.
Transfer and vesting without conveyance
Assets, rights and liabilities transferred by transfer notice vest automatically in the transferee “by virtue of this section and without the need for any further conveyance, transfer, assignment or assurance” (s 20(1)(a)). Similarly, business transferred to the Crown vests by operation of s 27(1). Practically, this means title formalities customary in commercial conveyancing are not required; interested parties must monitor Gazette notices (s 19(1), s 26(1)) to know when legal ownership changes.
Transfers override other law and contracts
The statutory language is broad: transfers and sale contracts take effect “despite any other law, contract or other instrument” (s 20(5), s 24(3), s 27(2)). Counterparties cannot rely on contractual termination or other remedies solely because of a transfer (s 20(4)). This can extinguish bargaining positions or anticipated remedies a counterparty thought were protected by contract.
Non-reviewability of Ministers’ decisions
Section 40 removes reviewability of shareholding Ministers’ decisions “whether judicial or otherwise”. That provision narrows remedies considerably; affected parties should not assume availability of judicial review for decisions characterised as shareholding Ministers’ decisions.
Finality of Treasurer determinations
The Treasurer’s determination whether business is transferred is final and binding on State-owned entities and the Crown (s 37(2)). This can foreclose dispute resolution paths on transfer scope.
Amendments and revocations have retrospective operational consequences
The Treasurer may amend or revoke transfer notices or orders (ss 19(6)-(9), 26(6)-(9)). Actions taken by transferees in the intervening period are, in many cases, retrospectively treated as actions of the transferor (s 19(9)(a), s 26(9)(a)), and failures as failures by the transferor (s 19(9)(b), s 26(9)(b)). That complicates risk allocation for parties taking actions after a notice is published but before a later amendment.
No general statutory compensation right
Section 20(2) states no compensation is payable in connection with a transfer except to the extent the transfer notice provides. Parties should not assume an entitlement to compensation if their rights are affected, unless the transfer instrument expressly provides it.
Employee transfer protections are limited
Transferred employees retain entitlements and service continuity (s 22(2)-(4)), but they are not entitled to compensation solely because of the transfer (s 22(2)(c)). Awards or agreements continue except where another applicable award/agreement/law provides otherwise (s 22(3)). Employers and unions should verify which industrial instruments apply post-transfer.
Information disclosure exceptions are broad but constrained
The Act authorises disclosure despite other law where reasonably required to implement reform (s 33), and grants the Treasurer power to require Expert Panel material be provided to the Co‑ordinator (s 9). However, s 9 restricts how Expert Panel information may be used and to whom it may be given (s 9(5)-(7)). Parties relying on confidentiality must check the precise scope of authorisation and any authorisation-in-writing regime under s 32(1)(f).
Not statutory rules; limited parliamentary oversight
Transfer notices and orders are not statutory rules for the purposes of the Rules Publication Act 1953 (s 19(10), s 21(11), s 26(10)). That means those instruments are made by Gazette notice and are not subject to the same tabling, disallowance or review processes as delegated legislation, reducing parliamentary mechanisms to contest details.
Competition law carve-out limited to authorised conduct
Section 30 exempts actions “specified in, and specifically authorised by, this Act, or regulations made under this Act” from Part IV of the Competition and Consumer Act. The exemption is therefore narrow: conduct must be both specified and specifically authorised by statute or regulation. Practitioners must check whether a particular conduct falls within that double requirement before assuming a competition law exemption.
Temporal limits and legacy structures
Some powers are time‑limited. The Electricity Reform Co‑ordinator exists until 30 June 2015 (s 12(1)), and s 11 limits certain Division 2 powers after that date except for winding up a State-owned electricity entity. In practice, the passage of time and subsequent amendments (for example s 23(1A) in 2025) affect what remains permissible. Confirm current status and any regulatory instruments when advising.
Crown non‑guarantee with limited exception
The Crown does not guarantee State‑owned entities’ obligations except where liability is transferred to the Crown under s 27 (s 36). Creditors should not assume a Crown guarantee unless the liability has been specifically transferred.
These “gotchas” emphasise the Act’s design to achieve rapid statutory effect for structural change, while limiting ordinary procedural and contractual protections. Parties should treat Gazette notices, Treasurer determinations, and direction instruments as decisive events that alter legal positions quickly and with limited opportunity for judicial review.
How to comply
For State-owned entities, purchasers, advisers and employees, compliance involves monitoring, process, documentation and careful negotiation. Below are practical compliance steps tied to statutory obligations and opportunities.
Monitor Gazette and annual reports
Transfer notices and transfer orders are published in the Gazette and take effect on the date specified (s 19(1), s 19(4), s 26(1), s 26(4)). Entities and counterparties should monitor the Gazette for notices under this Act and ensure annual reports disclose directions received as required (s 8(7)-(8)). Failure to spot a notice may cause missed vesting events.
Comply promptly with directions and requests
Boards, CEOs and officers must comply with directions from shareholding Ministers and do all things necessary to ensure compliance (s 8(4)). Similarly, State-owned entities and their officers must comply with the Electricity Reform Co‑ordinator’s requests for information and assistance (s 15(1)-(2)). Compliance should be documented, with records of the Co‑ordinator’s request and internal steps taken, to preserve the benefit of Crown indemnities (ss 10, 17).
Handle Expert Panel and sale information in accordance with s 9, s 32 and s 33
If directed by the Treasurer under s 9(2) to provide Expert Panel information, provide it only as authorised and ensure onward disclosure is limited to authorised persons (s 9(4)-(7)). For sale or transfer preparation, use s 32 as authority to disclose information to potential purchasers, their advisers and authorised persons. Ensure all disclosures are made to persons who are specifically authorised in writing where required (s 32(1)(f)). For confidentiality obligations under other contracts, record reliance on s 33 authorisations where disclosure is “reasonably required” for reform.
For purchasers: use s 24 and due diligence rights, but account for statutory overrides
Purchasers should secure robust contractual protections in sale contracts permitted under s 24: express substitution of parties (s 24(2)(e)), allocation of liabilities (s 24(2)(c)), continuation of proceedings (s 24(2)(f)-(g)), and confirmation of service/enforcement arrangements (s 24(2)(h)-(i)). Recognise that sale contracts will be given statutory force and operate despite other law (s 24(3)), so allocate commercial risk accordingly and confirm the Treasurer’s authority and any required parliamentary approval (s 23(1A) if applicable).
Check for tax certificates and State tax exemption
For transfers and sale documentation, verify whether State tax applies. Section 20(3) exempts State tax for documents prepared to effect transfers between State entities. For sales, the Treasurer may issue a certificate under s 35(1)-(2) confirming State tax is not payable. Ensure purchasers obtain any available certificate and record reliance on it for tax treatment.
Prepare for employee transfers
Where employees are to be transferred under s 21, follow the consultation process required (s 21(3)-(4)), ensure written notice is given to each person transferred (s 21(6)), and preserve entitlements and service continuity (s 22(2)-(4)). Employers should audit applicable awards or agreements to identify any differences post-transfer under s 22(3).
Document decisions and good‑faith compliance to preserve indemnities
Crown indemnities and the protection in s 34 apply to persons acting in good faith. Maintain contemporaneous records evidencing the good‑faith belief that actions were necessary or convenient to implement directions or requests. That documentation will be material if indemnities or immunities are ever litigated.
Account for amendment and revocation risk
Transfers or orders may be amended or revoked (ss 19(6), 26(6)); actions taken by transferees in the interim may be treated as actions of the transferor (s 19(9)(a), s 26(9)(a)). Parties taking actions following a transfer notice should consider obtaining express contractual protections or confirmation from the Treasurer regarding the permanency of the notice.
Resolve disputes with Treasurer early
If a dispute arises as to whether business has been transferred, the Treasurer may determine the matter and the determination is final and binding (s 37). Parties should seek early engagement with the Treasurer and maintain evidence to support their position prior to any statutory determination.
Check parliamentarian requirements for sales
After the 2025 amendment, a sale of Aurora’s retail business may require a parliamentary motion passed by at least two‑thirds of each House (s 23(1A)). Purchasers should confirm whether the proposed sale requires this approval and the timetable for achieving it.
Confirm competition law authorisations
Because s 30 exempts only authorised actions from federal Part IV, ascertain whether the particular conduct is “specified in, and specifically authorised by” the Act or regulations. If not clearly authorised, obtain legal advice on competition law risk and consider seeking express authorisation in regulation or contract.
Check interactions with Corporations Act and other statutes
Where a transaction interacts with corporate law (for example, share transfers, deregistration under s 28 or corporate restructuring), check s 29’s displacement declaration and seek advice on whether concurrent operation issues arise with the Corporations Act. Use the Treasurer’s power to amend constitutions (s 38) only where necessary and after legal review.
Records, reporting and transparency
Keep accurate records of disclosures, directions, transfer notices and consultations, and ensure annual report disclosure of directions (s 8(7)-(8)). Record authority for disclosures under s 32 and s 9 to demonstrate statutory compliance.
Seek confirmation on Crown guarantees and liabilities
Do not presume a Crown guarantee (s 36). Where the Crown is to assume liabilities under a transfer order, ensure the transfer order properly specifies those liabilities and record the transfer in documentation.
In summary, compliance requires active monitoring of Gazette instruments, prompt and documented compliance with directions and information requests, careful drafting of sale contracts using the powers in s 24, attention to employee consultation and entitlements under Part 4 and Part 6, obtaining tax certificates where relevant, and close engagement with the Treasurer and the Electricity Reform Co‑ordinator. Given the Act’s mechanisms for overriding other law and the limits on judicial review, advance procedural and documentary safeguards are essential to manage risk.
customer means a person to whom electricity is sold for premises by an electricity retailer;
distribution of electricity means the carrying of electricity between different points using a distribution network;
distribution network means the apparatus, electric line, equipment, plant, and buildings, that are –
(a) used to convey, or control the conveyance of, electricity; and
(b) specified by the National Electricity Rules as, or as forming part of, a distribution system;
Electricity Reform Co-ordinator means the office of Electricity Reform Co-ordinator existing under section 12 ;
electricity reform measures means the measures referred to in section 6(1) ;
electricity reform objectives means the objectives of electricity reform referred to in section 5 ;
electricity retailer means the holder of a retailer authorisation within the meaning of the National Energy Retail Law (Tasmania);
gas contract means a contract for the sale of gas;
Hydro-Electric Corporation has the same meaning as in the Hydro-Electric Corporation Act 1995 ;
liability means any liability, duty or obligation, whether actual, contingent or prospective, liquidated or unliquidated;
National Electricity Rules has the same meaning as in the National Electricity Law contained in the Schedule (as amended from time to time) to the National Electricity (South Australia) Act 1996 of South Australia;
property means –
(a) any legal or equitable estate or interest (whether present or future and whether vested or contingent) in real or personal property; and
(b) money, documents and securities; and
(c) shares in a subsidiary; and
(d) any other rights;
retail business, in relation to a State-owned electricity entity –
(a) means any business of the entity that relates to the retailing of electricity; and
(b) includes any retail electricity contracts and any gas contracts;
retail electricity contract means a contract between an electricity retailer and a customer for the sale to the customer of electricity for premises;
retailing of electricity means selling to a customer electricity for premises;
right means any right, power, privilege, or immunity, whether actual, contingent or prospective;
shareholding Ministers means the Treasurer and the Minister;
small customer has the same meaning as in the National Energy Retail Law (Tasmania);
State-owned electricity entity means –
(a) Aurora Energy; and
(b) Transend; and
(c) any company established under the Electricity Companies Act 1997 ; and
(d) the Hydro-Electric Corporation; and
(e) a subsidiary of any State-owned electricity entity referred to in paragraph (a) , (b) , (c) or (d) ;
State tax means –
(a) any tax, duty or charge; and
(b) any application fee, registration fee or other fee –
imposed by an Act or other law of Tasmania;
subsidiary of a State-owned electricity entity – see subsection (2) ;
transmission of electricity means the carrying of electricity between different points using a transmission system;
transmission system has the same meaning as in the National Electricity Rules.
(2) For the purposes of this Act, a body corporate is a subsidiary of a State-owned electricity entity if –
(a) the body is a subsidiary of the State-owned electricity entity under the Corporations Law; or
(b) were the State-owned electricity entity, and the body corporate, corporations under the Corporations Law, the body corporate would be a subsidiary of the State-owned electricity entity under the Corporations Law.
Part 2 Electricity Reform Generally
Part 2 Electricity Reform Generally
Division 1 Electricity reform objectives and measures
Division 1 Electricity reform objectives and measures
5 Electricity reform objectives
5 Electricity reform objectives
For the purposes of this Act, the objectives of electricity reform are –
(a) to assist in ensuring that the prices that customers are charged for electricity are as low as is consistent with ensuring the financial viability of the electricity supply industry; and
(b) to ensure that the supply of electricity in Tasmania is safe, secure and reliable; and
(c) to ensure that the advantage to Tasmania of generating electricity by means of renewable energy sources is maximised; and
(d) to ensure that State-owned electricity entities are financially viable and operated efficiently and effectively and that their overall economic benefit to Tasmania is maximised.
6 Electricity reform measures
6 Electricity reform measures
(1) The measures that may be taken to achieve the electricity reform objectives include the following:
(a) the introduction of full retail competition into the electricity supply industry so that customers, including small customers, have a choice of electricity retailers from which electricity may be purchased;
(b) the restructuring of State-owned electricity entities;
(c) the integration of Aurora Energy's distribution network with Transend's transmission system to form a single combined network business;
(d) the transfer to the Hydro-Electric Corporation, or the sale to the private sector, of Aurora Energy (Tamar Valley) and any business of Aurora Energy (Tamar Valley);
(e) the establishment of independent regulation of the Hydro-Electric Corporation's wholesale market contracts;
(f) the sale to the private sector of the retail business of Aurora Energy or a subsidiary of Aurora Energy.
(2) Subsection (1) does not limit the measures that may be taken to achieve the electricity reform objectives.
Division 2 Ministerial responsibility for electricity reform
Division 2 Ministerial responsibility for electricity reform
7 Ministerial control
7 Ministerial control
(1) The shareholding Ministers are to take the actions they think necessary or desirable –
(a) to achieve the electricity reform objectives; and
(b) to implement the electricity reform measures.
(2) The actions that may be taken to implement the electricity reform measures include, but are not limited to including, the following:
(a) the formation of companies under the Electricity Companies Act 1997 ;
(b) the sale and transfer, under this Act, of any retail business held by Aurora Energy or a subsidiary of Aurora Energy;
(c) the transfer, under this Act, between State-owned electricity entities, of certain assets, rights, liabilities and employees;
(d) the transfer, under this Act, to the Crown of all or part of the business of Aurora Energy, Transend or subsidiaries of Aurora Energy or Transend.
8 Ministerial power of direction
8 Ministerial power of direction
(1) The shareholding Ministers, by notice in writing to a State-owned electricity entity, may jointly issue a direction to the entity to ensure that –
(a) the electricity reform objectives are achieved; or
(b) the electricity reform measures are implemented.
(2) Without limiting the generality of subsection (1) , a direction issued under that subsection to a State-owned electricity entity may require the entity to –
(a) take the action specified in the direction; or
(b) take all reasonable steps to comply with the direction.
(3) Without limiting the generality of subsection (1) , a direction issued under that subsection to a State-owned electricity entity may require the entity to direct a subsidiary of the entity to take an action, or cease to take an action, that –
(a) is specified in the direction issued under subsection (1) ; or
(b) the entity, or the board of directors of the entity, thinks is necessary or convenient to assist in the carrying out of the direction issued under subsection (1) .
(4) If a direction is issued to a State-owned electricity entityunder subsection (1) –
(a) the State-owned electricity entity; and
(b) the board of directors and the chief executive officer of the State-owned electricity entity; and
(c) all officers of the State-owned electricity entity –
must comply with the direction and may do all things necessary or convenient to ensure the direction is complied with.
(5) Without limiting the generality of subsection (4) , a State-owned electricity entity to which a direction is issued under subsection (1) , and the board of directors of the State-owned electricity entity, may direct a subsidiary of the entity to take an action, or to cease to take an action, specified in the direction to the subsidiary, that –
(a) is specified, in the direction issued under subsection (1) , as a direction that the entity is to issue to the subsidiary; or
(b) the entity or the board of directors thinks is necessary or convenient to assist in the carrying out of the direction issued under subsection (1) .
(6) If a direction is issued to a subsidiary of a State-owned electricity entity under subsection (5) by a State-owned electricity entity or the board of directors of a State-owned electricity entity –
(a) the subsidiary; and
(b) the board of directors and the chief executive officer of the subsidiary; and
(c) all officers of the subsidiary –
must comply with the direction and may do all things necessary or convenient to ensure the direction is complied with.
(7) If a direction is issued under subsection (1) to a State-owned electricity entity, details of the direction are to be published in the annual report of the entity.
(8) If a direction is issued to a subsidiary of a State-owned electricity entity under subsection (5) , details of the direction are to be published in the annual report of the subsidiary, or, if there is no such annual report, the annual report of the State-owned electricity entity.
9 Ministerial directions in relation to information held by Expert Panel
9 Ministerial directions in relation to information held by Expert Panel
(1) In this section –
authorised person means a person, or a person who is a member of a class of persons, authorised in writing by the Treasurer to receive information provided to the person under this section.
(2) The Treasurer may issue to a person a direction that the person is to provide to the Electricity Reform Co-ordinator information, in the person's possession, that was produced by, or was in the possession of, the Electricity Supply Industry Expert Panel established under the Electricity Supply Industry Expert Panel Act 2010 .
(3) A person to whom a direction is issued under subsection (2) must comply with the direction and may do all things necessary or convenient to ensure the direction is complied with.
(4) The Electricity Reform Co-ordinator, for the purposes of assisting in the performance of the functions of the Electricity Reform Co-ordinator, may provide to an authorised person information provided to the Electricity Reform Co-ordinator under this section.
(5) The Electricity Reform Co-ordinator –
(a) may only use information provided to him or her under this section, or provide such information to an authorised person, for the purposes of assisting in the performance of the functions, or the exercise of the powers, of the Electricity Reform Co-ordinator; and
(b) must not provide the information to a person other than an authorised person.
(6) An authorised person to whom information is provided under subsection (4) may provide that information to another authorised person.
(7) An authorised person to whom information is provided under this section –
(a) may only use the information, or provide the information to another authorised person, for the purposes of assisting in the performance of the functions, or the exercise of the powers, of the Electricity Reform Co-ordinator; and
(b) must not provide the information to a person other than an authorised person.
10 Indemnity in respect of compliance with direction
10 Indemnity in respect of compliance with direction
(1) In this section –
relevant person, in relation to a State-owned electricity entity, means –
(a) a member of the board of directors of the State-owned electricity entity; and
(b) the chief executive off
This is an opening excerpt, not the complete document.