Electricity Transmission and Distribution Systems (Access) Act 1994 (Western Australia)

This Part 6-focused compilation of the Electricity Transmission and Distribution Systems (Access) Act 1994 (the Act) sets out a narrowed, residual statutory framework for access to electricity transmission and distribution systems in Western Australia. Mechanically, the Act now:

preserves certain definitions and access-related concepts (notably in s 2 and s 89) that identify the relevant corporate entities, the geographic scope of interconnected systems, and the statutory meanings of electricity transmission and distribution systems and capacities;
establishes that obligations created by this Part and by Schedules 5 and 6 are enforceable by civil proceedings, but do not give rise to an action for damages under the statute (s 94(1)); grants of access under clause 2 of Schedules 5 and 6 are to be treated as contracts enforceable as such (s 94(2) and (3));
provides a specific regulatory power to make regulations dealing with the operation and enforcement of existing access agreements (s 95 and s 96), including the capacity to make provisions equivalent to certain clauses formerly contained in Schedules 5 and 6 (s 95(3));
creates an express ministerial mechanism to declare that specified “relevant provisions” (including s 90, s 91, Schedule 5 or Schedule 6 in whole or in part) cease to have effect from a specified day, subject to statutory limits and conditions (s 95A); and
leaves broad regulation-making power with the Governor to prescribe matters required or convenient to give effect to the Act (s 96).

The text of the Act, as compiled, shows that most of the original Act has been repealed or superseded. Sections and whole Parts have been deleted; Schedules 5 and 6 have themselves been repealed by the Electricity Transmission and Distribution Systems (Repeal and Related Provisions) Regulations 2007 (see notes and compilation table). Nevertheless the Act retains an enforcement rule, definitions and a transitional/regulatory toolbox to manage “existing access agreements” in operation on 1 July 2007 (s 95(2)). The Act also excludes application of ss 177 and 178 of The Criminal Code to obligations under this Part and the (now largely repealed) Schedules (s 94(4)).

CrestWestern Australia

Electricity Transmission and Distribution Systems (Access) Act 1994

Western Australia

Electricity Transmission and Distribution Systems (Access) Act 1994

Contents

Part 1 — Preliminary

Short title 2
Terms used in this Act 2

Part 6 — Access to electricity transmission and distribution systems

Definitions 4
Enforcement 6
Regulations for access and pricing — existing access agreements 6

95A. Phasing‑out of operation of access and procurement provisions 7

Regulations 8

Notes

Compilation table 10

Uncommenced provisions table 12

Other notes 12

Defined terms

Western Australia

Electricity Transmission and Distribution Systems (Access) Act 1994

An Act to make provision for the availability of access to electricity transmission and distribution systems, and for related matters.

[Long title inserted: No. 18 of 2005 s. 139.]

Part 1 — Preliminary

1. Short title

This Act may be cited as the Electricity Transmission and Distribution Systems (Access) Act 1994.

[Section 1 amended: No. 18 of 2005 s. 139.]

2. Terms used in this Act

In this Act, unless the contrary intention appears —

corporation means each of —

(a) the Electricity Networks Corporation established by section 4(1)(b); and

(b) the Regional Power Corporation established by section 4(1)(d),

of the Electricity Corporations Act 2005;

isolated system means a system for the transmission and distribution of electricity that is not connected to —

(a) the North West interconnected system; or

(b) the South West interconnected system as defined in section 3 of the Electricity Corporations Act 2005;

North West interconnected system means the interconnected transmission and distribution systems, generating works and associated works —

(a) located in the Pilbara region of the State; and

(b) into which electricity is supplied by one or more of the electricity generation plants at Dampier, Port Hedland and Cape Lambert,

as expanded or altered from time to time.

[Section 2 inserted: No. 18 of 2005 s. 139.]

[3. Deleted: No. 18 of 2005 s. 139.]

[Parts 2, 3, 4 and 5 (s. 4-88) deleted: No. 18 of 2005 s. 139.]

Part 6 — Access to electricity transmission and distribution systems

[Heading inserted: No. 18 of 2005 s. 139.]

89. Definitions

(1) In this Part and in Schedules 5 and 6 —

electricity distribution capacity, in relation to the electricity distribution system operated by a corporation, means, subject to any provision made by the regulations, the capacity of the system to transport electricity from or to a particular point, consistent with the need to maintain the continuity and integrity of that system, whether or not that capacity is committed to existing users;

electricity distribution system, in relation to a corporation, means —

(a) the part or parts of the system operated by the corporation for the transportation of electricity that is or are prescribed by the regulations for the purposes of this paragraph; and

(b) plant and equipment that is —

(i) used by the corporation —

(I) in connection with the transfer of electricity to or from any part referred to in paragraph (a); or

(II) for a purpose related to such transfer;

and

(ii) prescribed, or of a kind that is prescribed, by the regulations for the purposes of this subparagraph;

electricity transmission capacity, in relation to the electricity transmission system operated by a corporation, means the capacity of the system to transport electricity, consistent with the need to maintain the continuity and integrity of that system;

electricity transmission system, in relation to a corporation, means —

(a) the part or parts of the system operated by the corporation for the transportation of electricity that is or are prescribed by the regulations for the purposes of this paragraph; and

(b) plant and equipment that is —

(i) used by the corporation —

(I) in connection with the transfer of electricity to or from any part referred to in paragraph (a); or

(II) for a purpose related to such transfer;

and

(ii) prescribed, or of a kind that is prescribed, by the regulations for the purposes of this subparagraph;

regulations means the regulations referred to in section 95.

(2) In this Part user, in relation to a corporation, means a person who has an arrangement with the corporation for access to either or both of electricity transmission capacity and electricity distribution capacity, and includes the corporation to the extent that it has access to either or both of electricity transmission capacity and electricity distribution capacity.

(3) In this Part a reference to Schedule 5 or 6 is a reference to that Schedule as in force before its repeal by the Electricity Transmission and Distribution Systems (Repeal and Related Provisions) Regulations 2007.

[Section 89 amended: No. 53 of 2003 s. 107; No. 18 of 2005 s. 139; amended in Gazette 26 Jun 2007 p. 3019.]

[90, 91. Deleted in Gazette 26 Jun 2007 p. 3019.]

[92, 93. Deleted: No. 18 of 2005 s. 139.]

94. Enforcement

(1) The obligations imposed on a corporation by this Part and by Schedules 5 and 6 create duties that are enforceable by civil proceedings in a court, but no breach of those obligations gives rise to an action for damages.

(2) A grant of access by a corporation under clause 2 of Schedule 5 or clause 2 of Schedule 6 to a user and the terms and conditions of that grant are to be taken to constitute a contract between the corporation and the user, and rights and obligations under the grant are enforceable accordingly.

(3) Nothing in subsection (1) affects —

(a) the enforceability of any contract, including a deemed contract under subsection (2), to which a corporation is a party; or

(b) the availability of damages for a breach of any such contract.

(4) Sections 177 and 178 of The Criminal Code do not apply to the obligations created by or under this Part and Schedules 5 and 6.

[Section 94 amended: No. 18 of 2005 s. 139; amended in Gazette 26 Jun 2007 p. 3019.]

95. Regulations for access and pricing — existing access agreements

(1) Regulations may be made under section 96 providing for matters relating to —

(a) access to, and pricing for, electricity transmission capacity; and

(b) access to, and pricing for, electricity distribution capacity,

to the extent that provision in respect of those matters is necessary or expedient for the operation and enforcement of existing access agreements.

(2) For the purposes of subsection (1) an existing access agreement is —

(a) an access agreement as defined in the Electricity Transmission Regulations 1996 regulation 3(1); or

(b) a distribution access agreement as defined in the Electricity Distribution Regulations 1997 regulation 3(1),

that is in operation on 1 July 2007.

(3) Without limiting subsection (1) the regulations may, to the extent mentioned in that subsection, make provision for any matter in respect of which regulations could have been made under Schedule 5 clause 2(2), (3) or (4) or Schedule 6 clause 2(2), (3) or (4).

[Section 95 inserted in Gazette 26 Jun 2007 p. 3020.]

95A. Phasing‑out of operation of access and procurement provisions

(1) The Minister may, by instrument published in the Government Gazette, declare that a specified relevant provision does not have effect on and after a specified day, and a declaration so made has effect accordingly.

(2) A declaration is not to be made in respect of a relevant provision unless the Minister is of the opinion that the matters to which the relevant provision relates —

(a) no longer need to be dealt with, or will no longer need to be dealt with on and after the specified day, under this Act or any other written law; or

(b) are adequately dealt with, or will be adequately dealt with on and after the specified day, under —

(i) another provision of this Act; or

(ii) the Electricity Industry Act 2004 Part 8, the Code established under that Part and the electricity system and market rules under that Act.

(3) A declaration is not to be made after the expiration of the period of 18 months beginning on the day on which Schedule 5 clause 17 of the Electricity Corporations Act 2005 comes into operation.

(4) Regulations made under section 96 may —

(a) repeal any specified relevant provision that has ceased to have effect because of a declaration;

(b) effect any repeal of or amendment to any other provision of this Part or Schedule 5, 6 or 7 that is consequential on a repeal referred to in paragraph (a); and

(c) prescribe any matter that it is necessary or convenient to prescribe for transitional or savings purposes in relation to a declaration or in relation to a repeal or amendment referred to in paragraph (a) or (b).

(5) In this section —

declaration means a declaration made under subsection (1);

relevant provision means any of section 90 or 91 or Schedule 5 or 6, or any portion of any of those sections or Schedules;

specified means specified in the declaration.

[Section 95A inserted: No. 33 of 2004 s. 26; amended: No. 18 of 2005 s. 139; No. 1 of 2024 s. 50.]

96. Regulations

The Governor may make regulations prescribing all matters that are required or permitted by this Act to be prescribed or are necessary or convenient to be prescribed for giving effect to the purposes of this Act.

[Section 96 inserted: No. 18 of 2005 s. 139.]

[Part 7 deleted: No. 18 of 2005 s. 139.]

[Schedules 1, 2, 3 and 4 deleted: No. 18 of 2005 s. 139.]

[Schedules 5 and 6 deleted in Gazette 26 Jun 2007 p. 3019.]

[Schedule 7 deleted: No. 18 of 2005 s. 139.]

View image in the official source

Notes

This is a compilation of the Electricity Transmission and Distribution Systems (Access) Act 1994 and includes amendments made by other written laws 2. For provisions that have come into operation, and for information about any reprints, see the compilation table. For provisions that have not yet come into operation see the uncommenced provisions table.

Compilation table

Short title	Number and year	Assent	Commencement
Electricity Corporation Act 1994 3	86 of 1994	15 Dec 1994	Act other than s. 90, 91 and 93: 1 Jan 1995 (see s. 2(1) and Gazette 23 Dec 1994 p. 7069); s. 90 and 93: 1 Jan 1997 (see s. 2(2) and Gazette 31 Dec 1996 p. 7255); s. 91: 1 Jul 1997 (see s. 2(2) and Gazette 1 Jul 1997 p. 3249)
State Enterprises (Commonwealth Tax Equivalents) Act 1996 s. 10(3)	55 of 1996	11 Nov 1996	1 Jul 1996 (see s. 2 and 3(3))
Statutes (Repeals and Minor Amendments) Act 1997 s. 52	57 of 1997	15 Dec 1997	15 Dec 1997 (see s. 2(1))
Statutes (Repeals and Minor Amendments) Act (No. 2) 1998 s. 32	10 of 1998	30 Apr 1998	30 Apr 1998 (see s. 2(1))
Acts Amendment and Repeal (Financial Sector Reform) Act 1999 s. 76	26 of 1999	29 Jun 1999	1 Jul 1999 (see s. 2(1) and Gazette 30 Jun 1999 p. 2905)
Gas Corporation (Business Disposal) Act 1999 s. 45 and 87	58 of 1999	24 Dec 1999	s. 45: 24 Dec 1999 (see s. 2(1)); s. 87: 1 Jul 2000 (see s. 2(2) and Gazette 4 Jul 2000 p. 3545)
*Reprint of the Electricity Corporation Act 1994* as at 4 Jan 2000** (includes amendments listed above except those in the Gas Corporation (Business Disposal) Act 1999 s. 87)
Statutes (Repeals and Minor Amendments) Act 2000 s. 14	24 of 2000	4 Jul 2000	4 Jul 2000 (see s. 2)
State Superannuation (Transitional and Consequential Provisions) Act 2000 s. 42	43 of 2000	2 Nov 2000	17 Feb 2001 (see s. 2(1) and Gazette 16 Feb 2001 p. 903)
Corporations (Consequential Amendments) Act 2001 Pt. 22	10 of 2001	28 Jun 2001	15 Jul 2001 (see s. 2 and Gazette 29 Jun 2001 p. 3257 and Cwlth Gazette 13 Jul 2001 No. S285)
Labour Relations Reform Act 2002 s. 27	20 of 2002	8 Jul 2002	15 Sep 2002 (see s. 2(1) and Gazette 6 Sep 2002 p. 4487)
Electricity Corporation (Act Amendment) Regulations 2002 published in Gazette 1 Nov 2002 p. 5375‑87			1 Nov 2002
*Reprint 2: The Electricity Corporation Act 1994* as at 3 Jan 2003** (includes amendments listed above)
Corporations (Consequential Amendments) Act (No. 3) 2003 Pt. 4 4	21 of 2003	23 Apr 2003	11 Mar 2002 (see s. 2 and Cwlth Gazette 24 Oct 2001 No. GN42)
Acts Amendment (Equality of Status) Act 2003 Pt. 18	28 of 2003	22 May 2003	1 Jul 2003 (see s. 2 and Gazette 30 Jun 2003 p. 2579)
Sentencing Legislation Amendment and Repeal Act 2003 s. 57	50 of 2003	9 Jul 2003	15May 2004 (see s. 2 and Gazette 14 May 2004 p. 1445)
Labour Relations Reform (Consequential Amendments) Regulations 2003 r. 21 published in Gazette 15 Aug 2003 p. 3685‑92			15 Sep 2003 (see r. 2)
Energy Legislation Amendment Act 2003 s. 102‑108, 109(1)‑(3) and 110(1)‑(3) 7	53 of 2003	8 Oct 2003	8 Oct 2003 (see s. 2(1) and (2))
Statutes (Repeals and Minor Amendments) Act 2003 s. 49	74 of 2003	15 Dec 2003	15 Dec 2003 (see s. 2)
Electricity Legislation Amendment Act 2004 Pt. 2 Div. 2	33 of 2004	20 Oct 2004	24 Nov 2004 (see s. 2 and Gazette 23 Nov 2004 p. 5243)
Electricity Corporations Act 2005 Sch. 5 cl. 7-22 5, 6	18 of 2005 (as amended by No. 8 of 2009 s. 50(3)(b))	13 Oct 2005	Sch. 5 (other than cl. 21(2)(a)(ii)): 1 Apr 2006 (see s. 2(2) and Gazette 31 Mar 2006 p. 1153)<br>Sch. 5 cl. 21(2)(a)(ii) deleted by No. 8 of 2009 s. 50(3)(b)
*Reprint 3: The Electricity Transmission and Distribution Systems (Access) Act 1994* as at 4 Aug 2006** (includes amendments listed above)
Electricity Transmission and Distribution Systems (Repeal and Related Provisions) Regulations 2007 published in Gazette 26 Jun 2007 p. 3018-21 8			r. 1 and 2: 26 Jun 2007 (see r. 2(a)); Regulations other than r. 1 and 2: 1 Jul 2007 (see r. 2(b))
Electricity Industry Amendment (Distributed Energy Resources) Act 2024 Pt. 2 Div. 4	1 of 2024	7 Mar 2024	6 Feb 2025 (see s. 2(b) and SL 2025/31 cl. 2)

Uncommenced provisions table

To view the text of the uncommenced provisions see Acts as passed on the WA Legislation website.

Short title	Number and year	Assent	Commencement
Electricity Industry Amendment (Distributed Energy Resources) Act 2024 Pt. 3 Div. 3	1 of 2024	7 Mar 2024	To be proclaimed (see s. 2(b))

Other notes

1 Footnote no longer required.

2 The Energy Corporations (Transitional and Consequential Provisions) Act 1994 Pt. 3 (as amended by the Electricity Corporations Act 2005 s. 139) reads as follows:

“

Part 3 — Transitional provisions for succession from Commission to New Corporations

Division 1 — Preliminary

Intention

The intention of the provisions of this Part is that the Electricity Corporation and the Gas Corporation will, in accordance with those provisions, stand in place of and be the successors to the Commission, except so far as section 48 applies.

Definitions

In this Part, unless the contrary intention appears —

assets means —

(a) property of every kind whether tangible or intangible, real or personal, corporeal or incorporeal; and

(b) without limiting paragraph (a) includes choses in action, goodwill, rights, interests and claims of every kind in or to property, whether arising from, accruing under, created or evidenced by or the subject of, an instrument or otherwise and whether liquidated or unliquidated, actual, contingent or prospective;

commencement day means the day on which Part 2 comes into operation;

Commission means the Commission under the principal Act as in force before the commencement day;

corporation means the Electricity Corporation or the Gas Corporation but in section 47 corporations means both of those corporations;

Electricity Corporation means the body corporate established by section 4 of the Electricity Corporation Act 1994;

Gas Corporation means the body corporate established by section 4 of the Gas Corporation Act 1994;

liability means any liability, duty or obligation whether actual, contingent or prospective, liquidated or unliquidated, or whether owed alone or jointly or jointly and severally with any other person;

principal Act means the State Energy Commission Act 1979;

right means any right, power, privilege or immunity whether actual, contingent or prospective;

transfer order means the order and any amendments to it made by the Minister under section 44, and includes any order made under subsection (5) of that section.

Division 2 — Devolution of Commission’s assets and liabilities etc

Minister to make order for allocation of assets and liabilities

(1) As soon as is practicable after this section comes into force the Minister is to make and publish in the Gazette an order specifying —

(a) how assets, rights and liabilities of the Commission are to be allocated to the Electricity Corporation and the Gas Corporation; and

(b) any proceedings in which the Electricity Corporation or the Gas Corporation is to be, or both of those corporations are to be, substituted for the Commission as a party or parties.

(2) An allocation under subsection (1)(a) may be made to —

(a) the Electricity Corporation;

(b) the Gas Corporation; or

(3) Without limiting subsection (1), an order under that subsection may —

(a) provide for the allocation of income in respect of any asset;

(b) in respect of a particular liability, allocate a specified share of the liability to each of the corporations;

(c) provide for the transfer, debiting, crediting, closing or otherwise dealing with any account, reserve, fund, provision, profit or liability for any levy; and

(d) contain such incidental or supplementary provisions as the Minister thinks fit.

(4) The transfer order may be amended by the Minister, by further order published in the Gazette, but no such amendment may be made after the commencement day.

(5) Where for any reason it is not practicable to allocate any asset, right or liability to a corporation, or to both of the corporations, under this section before the commencement date —

(a) the transfer order is to specify that the asset, right or liability is to be allocated under this subsection; and

(b) the Minister may make a further order under this section in respect of that asset, right or liability not later than 90 days after the commencement day.

(6) An order under subsection (5) is to have effect from the commencement day.

(7) The Commission is to be taken to continue to hold an asset or right, and to be liable for a liability, to which subsection (5) applies until an order is made under that subsection.

Transfer of assets and liabilities to the Electricity Corporation

(1) On and after the commencement day —

(a) the assets and rights of the Commission allocated to the Electricity Corporation by the transfer order vest in that corporation by force of this section;

(b) the liabilities of the Commission (including a share of a liability) allocated to the Electricity Corporation by the transfer order become, by force of this section, the liabilities of that corporation;

(c) subject to section 49, any agreement or instrument relating to the assets, rights and liabilities referred to in paragraphs (a) and (b) has effect, by force of this section, as if the Electricity Corporation were substituted for the Commission in the agreement or instrument;

(d) the Electricity Corporation is a party to any proceedings by or against the Commission commenced before the commencement day in accordance with any provision of the transfer order to that effect made under section 44(1)(b);

(e) any proceedings or remedy that might have been commenced by or available against or to the Commission in relation to the assets, rights and liabilities referred to in paragraphs (a) and (b), may be commenced and are available, by or against or to the Electricity Corporation;

(f) any act, matter or thing done or omitted to be done in relation to the assets, rights and liabilities referred to in paragraphs (a) and (b) before the commencement day by, to or in respect of the Commission (to the extent that that act, matter or thing has any force or effect) is to be taken to have been done or omitted by, to or in respect of the Electricity Corporation;

(g) the Commission is to deliver to the Electricity Corporation all registers, papers, documents, minutes, receipts, books of account and other records (however compiled, recorded or stored) relating to —

(i) the assets, rights and liabilities referred to in paragraphs (a) and (b); and

(ii) proceedings referred to in paragraph (d);

and

(h) all provisions of the transfer order relevant to this section have effect.

(2) Subsection (1)(c) and (e) has effect subject to any provision of the transfer order made under section 44(3)(b).

Transfer of assets and liabilities to the Gas Corporation

(1) On and after the commencement day —

(a) the assets and rights of the Commission allocated to the Gas Corporation by the transfer order vest in that corporation by force of this section;

(b) the liabilities of the Commission (including a share of a liability) allocated to the Gas Corporation by the transfer order become, by force of this section, the liabilities of that corporation;

(c) subject to section 49, any agreement or instrument relating to the assets, rights and liabilities referred to in paragraphs (a) and (b) has effect, by force of this section, as if the Gas Corporation were substituted for the Commission in the agreement or instrument;

(d) the Gas Corporation is a party to any proceedings by or against the Commission commenced before the commencement day in accordance with any provision of the transfer order to that effect made under section 44(1)(b);

(g) the Commission is to deliver to the Gas Corporation all registers, papers, documents, minutes, receipts, books of account and other records (however compiled, recorded or stored) relating to —

(i) the assets, rights and liabilities referred to in paragraphs (a) and (b); and

(ii) proceedings referred to in paragraph (d);

and

(h) all of the provisions of the transfer order relevant to this section have effect.

(2) Subsection (1)(c) and (e) has effect subject to any provision of the transfer made under section 44(3)(b).

Transfer of assets and liabilities to both corporations

On and after the commencement day —

(a) the assets and rights of the Commission allocated to the corporations jointly by the transfer order vest in those corporations jointly by force of this section;

(b) the assets and rights of the Commission allocated to the corporations as tenants in common by the transfer order vest in those corporations as tenants in common in the shares specified in the transfer order by force of this section;

(c) the liabilities of the Commission allocated to the corporations jointly by the transfer order become, by force of this section, the liabilities of those corporations jointly;

(d) subject to section 49, any agreement or instrument relating to the assets, rights and liabilities referred to in paragraphs (a) and (b) has effect, by force of this section, as if the corporations were substituted for the Commission in the agreement or instrument;

(e) the corporations jointly are parties to any proceedings by or against the Commission commenced before the commencement day in accordance with any provision of the transfer order to that effect made under section 44(1)(b);

(f) any proceedings or remedy that might have been commenced by or available against or to the Commission in relation to the assets, rights and liabilities referred to in paragraphs (a), (b) and (c), may be commenced and are available, by or against or to the corporations jointly or severally in accordance with the transfer order;

(g) any act, matter or thing done or omitted to be done in relation to the assets, rights and liabilities referred to in paragraphs (a), (b) and (c) before the commencement day by, to or in respect of the Commission (to the extent that that act, matter or thing has any force or effect) is to be taken to have been done or omitted by, to or in respect of the corporations jointly or severally in accordance with the transfer order;

(h) the Commission is to deliver to the Electricity Corporation all registers, papers, documents, minutes, receipts, books of account and other records (however compiled, recorded or stored) relating to —

(i) the assets, rights and liabilities referred to in paragraphs (a), (b) and (c); and

(ii) proceedings referred to in paragraph (e);

and

(i) all of the provisions of the transfer order relevant to this section have effect.

Unallocated assets and liabilities

Subject to section 44(5), on and after the commencement day —

(a) any assets and rights of the Commission that do not vest in a corporation or the corporations under section 45, 46 or 47, are to be dealt with as the Minister directs;

(b) any liability of the Commission that does not become a liability of a corporation or the corporations under section 45, 46 or 47 is, so far as it is properly payable, to be discharged in such manner and from such source as the Minister, with the approval of the Treasurer, directs;

(c) subject to section 49, any agreement or instrument relating to the assets, rights and liabilities referred to in paragraphs (a) and (b) has effect, by force of this section, as if the State were substituted for the Commission in the agreement or instrument;

(d) any proceedings or remedy that might have been commenced by or available against or to the Commission in relation to the assets, rights and liabilities referred to in paragraphs (a) and (b), may be commenced and are available, by or against or to the State;

(e) any act, matter or thing done or omitted to be done in relation to the assets, rights and liabilities referred to in paragraphs (a) and (b) before the commencement day by, to or in respect of the Commission (to the extent that that act, matter or thing has any force or effect) is to be taken to have been done or omitted by, to or in respect of the State; and

(f) the Commission is to deliver to the Minister all registers, papers, documents, minutes, receipts, books of account and other records (however compiled, recorded or stored) relating to the assets, rights and liabilities referred to in paragraphs (a) and (b).

References to Commission in Government agreements

(1) The transfer order is to also specify for each provision in a Government agreement in which there is a reference to the Commission whether that reference is to be read as a reference to —

(a) the Electricity Corporation;

(b) the Gas Corporation;

(d) a Minister of the Crown or the State; or

(e) the Coordinator of Energy referred to in section 4 of the Energy Coordination Act 1994.

(2) Subsection (1) does not apply to a provision of a Government agreement that is spent or has had its effect.

(3) On and after the commencement day a provision of a Government agreement which under subsection (1) is affected by the transfer order has effect by force of this section as so affected.

(4) In this section “Government agreement” has the same meaning as it has in the Government Agreements Act 1979.

Debentures and inscribed stock

(1) Without limiting section 45, 46 or 47 any debentures or inscribed stock which devolve under any of those sections, and the determination of rights and obligations in respect of the same, continue to be governed by sections 108 and 111 of the principal Act and regulations made under section 110 of that Act, despite the repeal of those sections, as if —

(a) those sections and regulations remained in force; and

(b) references in those sections and regulations to the “Commission” were references to —

(i) a new corporation; or

(ii) 2 or more of the new corporations jointly or severally,

in accordance with a transfer order.

(1a) In subsection (1)(b) —

new corporation and transfer order have the meanings given to those terms in section 142(1) of the Electricity Corporations Act 2005.

(2) The Governor may, by further regulations, amend or repeal the regulations referred to in subsection (1).

[Section 50 amended: No. 18 of 2005 s. 139.]

Guarantees in respect of Commission

(1) A guarantee under section 30 or 108 of the principal Act as in force immediately before the commencement day is not affected by —

(a) any provision of this Act, including without limitation the transfer of any liability of the Commission under section 45, 46 or 47 to a corporation or the corporations jointly; or

(b) any transfer, vesting or assumption of any liability of the Commission to, in or by a corporation or the corporations jointly by any other means.

(2) Any guarantee referred to in subsection (1) is to continue in force and is to be read and construed, on and from —

(a) the commencement day; or

(b) the day on which the transfer, vesting or assumption by any other means referred to in subsection (1) is effective,

as if it were a guarantee of the liabilities of the corporation which have been transferred, vested or assumed to, in or by it.

(3) Despite its repeal by section 34, section 106(1) of the principal Act is to be taken to continue to apply for the purposes of subsection (2).

(4) The Treasurer may enter into any instrument confirming the continued liability of the State under a guarantee referred to in subsection (1).

(5) Division 4 of Part 5 of the relevant Act is to be taken to apply to a liability of a corporation referred to in subsection (1) if a guarantee of that liability cannot be preserved under this section (whether because the guarantee is governed otherwise than by the law of the State or for any other reason).

(6) In subsection (5) relevant Act means —

(a) in the case of the Electricity Corporation, the Electricity Corporation Act 1994; and

(b) in the case of the Gas Corporation, the Gas Corporation Act 1994.

(7) By virtue of this subsection, any sum paid by the Treasurer under a guarantee referred to in subsection (1) constitutes a charge on the assets of the relevant corporation or the corporations jointly, as the case may require.

Commission to complete necessary transactions

(1) Where any asset, right or liability to which this Part applies cannot be properly vested in or succeeded to by the Electricity Corporation or the Gas Corporation, or by both of those corporations, by the operation of this Part (whether because the matter is governed otherwise than by the law of the State, or for any other reason) —

(a) the Commission is to be taken to continue to hold or be liable for that asset, right or liability until the same is effectively vested in or succeeded to by the corporation concerned or both of the corporations in accordance with this Part; and

(b) the Commission is to take all practicable steps for the purpose of securing that such asset, right or liability is effectively vested in or succeeded to by the corporation concerned or both of the corporations in accordance with this Part.

(2) The fact that subsection (1)(a) applies to an asset, right or liability that is allocated to a corporation or to both of the corporations under this Part does not affect the duty of the corporation or the corporations to account for and report on that asset, right or liability under the written law by which the corporation is established.

Exemption from State taxation

(1) In this section —

State tax includes stamp duty chargeable under the Stamp Act 1921 and any other tax, duty, fee, levy or charge under a law of the State.

(2) State tax is not payable in relation to —

(a) anything that occurs by the operation of this Part; or

(b) anything done (including a transaction entered into or an instrument or document of any kind made, executed, lodged or given) under this Part, or to give effect to this Part, or for a purpose connected with or arising out of, giving effect to this Part.

(3) The Treasurer or a person authorised by the Treasurer may, on request by the Electricity Corporation or the Gas Corporation, certify in writing that —

(a) a specified thing occurred by the operation of this Part; or

(b) a specified thing was done under this Part, or to give effect to this Part, or for a purpose connected with or arising out of giving effect to this Part.

(4) For all purposes and in all proceedings, a certificate under subsection (3) is conclusive evidence of the matters it certifies, except so far as the contrary is shown.

Registration of documents

(1) The relevant officials are to take notice of the provisions of this Part and are empowered to record and register in the appropriate manner the documents necessary to give effect to this Part.

(2) Without limiting subsection (1), a statement in an instrument executed by the Electricity Corporation or the Gas Corporation that any estate or interest in land or other property has become vested in it or in the corporations jointly or in specified shares under section 45, 46 or 47 is evidence of that fact.

(3) In subsection (1) relevant officials means the Registrar of Titles, the Registrar of Deeds, the Ministers respectively administering the Land Act 1933 and the Mining Act 1978 and any other person authorised by a written law to record and give effect to the registration of documents relating to transactions affecting any estate or interest in land or any other property.

Saving

The operation of section 45, 46 or 47 is not to be regarded —

(a) as a breach of contract or confidence or otherwise as a civil wrong;

(b) as a breach of any contractual provision prohibiting, restricting or regulating the assignment or transfer of assets, rights or liabilities or the disclosure of information;

(c) as giving rise to any remedy by a party to an instrument or as causing or permitting the termination of any instrument, because of a change in the beneficial or legal ownership of any asset, right or liability;

(d) as causing any contract or instrument to be void or otherwise unenforceable; or

(e) as releasing or allowing the release of any surety.

Division 3 — Staff

Transition of employment

Any agreement made at any time between the Commission and a person for the employment of that person on the staff of a corporation has effect after the commencement of section 15 of the Electricity Corporation Act 1994 or section 15 of the Gas Corporation Act 1994 as if it had been made by the board of the corporation under that section.

Employees’ rights preserved

Except as otherwise agreed by an employee, the change from employment by the Commission to employment by a corporation does not —

(a) affect the employee’s remuneration;

(b) prejudice the employee’s existing or accruing rights;

(d) interrupt continuity of service.

Division 4 — General transitional provisions

Annual report for part of a year

The accountable authority, within the meaning in the Financial Administration and Audit Act 1985, of the Commission is to report in respect of that body as required by section 66 of that Act, but limited to the period from the preceding 1 July to the commencement day, and Division 14 of Part II of that Act applies as if that period were a full financial year.

Completion of things commenced

Anything commenced to be done by the Commission under the principal Act before the commencement day may be continued by a corporation so far as the doing of that thing is within the functions of that corporation after the commencement day.

Continuing effect of things done

Any act, matter or thing done or omitted to be done before the commencement day by, to or in respect of the Commission, to the extent that that act, matter or thing —

(a) has any force; and

(b) is not governed by section 45(f), 46(f) or 47(g),

is to be taken to have been done or omitted by, to or in respect of a corporation so far as the act, matter or thing is relevant to that corporation.

Immunity to continue

Despite Part 2 of this Act, where the Commission had the benefit of any immunity in respect of an act, matter or thing done or omitted before the commencement day, that immunity continues in that respect for the benefit of the corporations.

Agreements and instruments generally

(1) This section applies to any agreement or instrument subsisting immediately before the commencement day that does not come within the provisions of section 45(1)(c), 46(1)(c), 47(d) or 49.

(2) Any agreement or instrument to which this section applies —

(a) to which the Commission was a party; or

(b) which contains a reference to the Commission,

has effect after that day as if —

(d) any reference in the agreement or instrument to the Commission were (unless the context otherwise requires) a reference to the relevant corporation.

(3) In this section relevant corporation means —

(a) in relation to the functions of the Commission that after the commencement day are functions of the Electricity Corporation, that corporation;

(b) in relation to the functions of the Commission that after the commencement day are functions of the Gas Corporation, that corporation.

Commission to perform necessary transitional functions

(1) Despite the repeal of section 7 of the principal Act by section 8 of this Act, the Commission continues in existence for the purpose of —

(a) reporting as required by section 58; and

(b) performing the functions described in sections 44(7), 45(1)(g), 46(1)(g), 47(h), 48(f) and 52.

(2) The accountable authority, within the meaning in the Financial Administration and Audit Act 1985, also continues in existence for the purpose described in subsection (1)(a).

(3) Despite the provisions of the principal Act —

(a) the members of the Commission immediately before the commencement day cease to hold office on that day;

(b) the Commission is to be constituted by a person appointed by the Minister; and

(4) The person referred to in subsection (3)(b) holds office at the pleasure of the Minister and on such terms and conditions as the Minister determines.

(5) The Commission as constituted under this section has the powers that are necessary or convenient for the purposes of subsection (1).

(6) Each of the corporations is to provide the clerical or other assistance that the Commission reasonably requires for performing the functions described in subsection (1) in respect of that corporation.

Further transitional provision may be made

(1) If there is no sufficient provision in this Part for any matter or thing necessary or convenient to give effect to the intention described in section 42 the Minister may make that provision by order published in the Gazette.

(2) Any such order may be made so as to have effect from the commencement day.

(3) To the extent that a provision of any such order has effect on a day that is earlier than the day of its publication in the Gazette, the provision does not operate so as —

(a) to affect, in a manner prejudicial to any person (other than the State, the Electricity Corporation, the Gas Corporation or any authority of the State), the rights of that person existing before the day of its publication; or

(b) to impose liabilities on any person (other than the State, the Electricity Corporation, the Gas Corporation or any authority of the State), in respect of anything done or omitted to be done before the day of publication.

”.

3 Now known as the Electricity Transmission and Distribution Systems (Access) Act 1994; short title changed (see note under s. 1).

4 The Corporations (Consequential Amendments) Act (No. 3) 2003 s. 2‑4 read as follows:

“

Commencement

(1) If this Act receives the Royal Assent before the day on which Schedule 1 to the Financial Services Reform Act comes into operation, this Act comes into operation at the same time as that Schedule comes into operation.

(2) If this Act receives the Royal Assent on or after the day on which Schedule 1 to the Financial Services Reform Act comes into operation, this Act is deemed to have come into operation at the same time as that Schedule comes into operation.

Interpretation

In this Part —

Financial Services Reform Act means the Financial Services Reform Act 2001 of the Commonwealth;

FSR commencement time means the time when Schedule 1 to the Financial Services Reform Act comes into operation;

statutory rule means a regulation, rule or by‑law.

Validation

(1) This section applies if this Act comes into operation under section 2(2).

(2) Anything done or omitted to have been done after the FSR commencement time and before this Act receives the Royal Assent that could have been done if this Act had received the Royal Assent before the FSR commencement time is taken to be as valid and lawful, and to always have been as valid and lawful, as it would have been if this Act had received the Royal Assent before the FSR commencement time.

(3) Anything done or omitted to have been done by a person after the FSR commencement time and before this Act received the Royal Assent that would have been valid and lawful if the Financial Services Reform Act had not commenced, is taken to be valid and lawful.

(4) Anything done or omitted to have been done after the FSR commencement time and before this Act receives the Royal Assent —

(a) that could only have been validly and lawfully done or omitted because this Act received the Royal Assent after the FSR commencement time; and

(b) that could not have been validly and lawfully done or omitted if this Act had received the Royal Assent before the FSR commencement time,

is taken not to be valid, and to never have been valid.

”.

5 The Electricity Corporations Act 2005 Sch. 5 cl. 22(2)‑(4) reads as follows:

“

(2) Any procurement of new generation that is in progress under Schedule 7 immediately before its repeal by subclause (1) is to be continued by the Electricity Retail Corporation after the commencement of that subclause as if Schedule 7 clauses 1, 3 and 4 had not been repealed.

(3) Any act, matter or thing done or omitted to be done before the commencement of subclause (1) by, to or in respect of Western Power Corporation in relation to the procurement of new generation mentioned in that subclause, is to be taken to have been done or omitted by, to or in respect of the Electricity Retail Corporation.

(4) In subclause (3) —

Western Power Corporation has the meaning given to that term in section 142(1).

”.

6 The Electricity Corporations Act 2005 Sch. 5 cl. 21(2)(a)(ii) was deleted by the Statutes (Repeals and Miscellaneous Amendments) Act 2009 s. 50(3)(b).

7 The Energy Legislation Amendment Act 2003 s. 109(4)-(5), 110(4) and 111 had not come into operation when it was deleted by the Statutes (Repeals and Minor Amendments) Act 2009 s. 6.

8 The Electricity Transmission and Distribution Systems (Repeal and Related Provisions) Regulations 2007 Pt. 4 reads as follows:

“

Part 4 — Transitional provisions

Continued operation of Electricity Transmission and Distribution Systems (Access) Act 1994 Schedule 5 clause 2(4)

(1) Despite the Electricity Transmission and Distribution Systems (Access) Declaration 2007 clause 2 and the repeal effected by regulation 6, the Electricity Transmission and Distribution Systems (Access) Act 1994 Schedule 5 clause 2(4) continues to have effect, subject to subregulation (2), in relation to the operation and enforcement of any access agreement (as defined in the Electricity Transmission Regulations 1996 regulation 3(1)) that is in operation on 1 July 2007.

(2) The Electricity Transmission and Distribution Systems (Access) Act 1994 Schedule 5 clause 2(4) continues to have effect under subregulation (1) as if it were amended by deleting “effect.” and inserting instead —

“

effect, unless the contract expressly provides that the provision applies despite any inconsistency with the essential terms and conditions.

”.

Continued operation of Electricity Transmission and Distribution Systems (Access) Act 1994 Schedule 6 clause 2(4)

(1) Despite the Electricity Transmission and Distribution Systems (Access) Declaration 2007 clause 2 and the repeal effected by regulation 6, the Electricity Transmission and Distribution Systems (Access) Act 1994 Schedule 6 clause 2(4) continues to have effect, subject to subregulation (2), in relation to the operation and enforcement of any distribution access agreement (as defined in the Electricity Distribution Regulations 1997 regulation 3(1)) that is in operation on 1 July 2007.

(2) The Electricity Transmission and Distribution Systems (Access) Act 1994 Schedule 6 clause 2(4) continues to have effect under subregulation (1) as if it were amended by deleting “effect.” and inserting instead —

“

effect, unless the contract expressly provides that the provision applies despite any inconsistency with the essential terms and conditions.

Defined terms

[This is a list of terms defined and the provisions where they are defined. The list is not part of the law.]

Defined term Provision(s)

corporation 2

declaration 95A(5)

electricity distribution capacity 89(1)

electricity distribution system 89(1)

electricity transmission capacity 89(1)

electricity transmission system 89(1)

existing access agreement 95(2)

isolated system 2

North West interconnected system 2

regulations 89(1)

relevant provision 95A(5)

specified 95A(5)

user 89(2)

This work is licensed under a Creative Commons Attribution 4.0 International Licence (CC BY 4.0). To view relevant information and for a link to a copy of the licence, visit www.legislation.wa.gov.au.

By Authority: GEOFF O. LAWN, Government Printer

Western Australia

Electricity Transmission and Distribution Systems (Access) Act 1994

Western Australia

Electricity Transmission and Distribution Systems (Access) Act 1994

Contents

Part 1 — Preliminary

Short title 2
Terms used in this Act 2

Part 6 — Access to electricity transmission and distribution systems

Definitions 4
Enforcement 6
Regulations for access and pricing — existing access agreements 6

95A. Phasing‑out of operation of access and procurement provisions 7

Regulations 8

Notes

Compilation table 10

Uncommenced provisions table 12

Other notes 12

Defined terms

Western Australia

Electricity Transmission and Distribution Systems (Access) Act 1994

An Act to make provision for the availability of access to electricity transmission and distribution systems, and for related matters.

[Long title inserted: No. 18 of 2005 s. 139.]

Part 1 — Preliminary

1. Short title

This Act may be cited as the Electricity Transmission and Distribution Systems (Access) Act 1994.

[Section 1 amended: No. 18 of 2005 s. 139.]

2. Terms used in this Act

In this Act, unless the contrary intention appears —

corporation means each of —

(a) the Electricity Networks Corporation established by section 4(1)(b); and

(b) the Regional Power Corporation established by section 4(1)(d),

of the Electricity Corporations Act 2005;

isolated system means a system for the transmission and distribution of electricity that is not connected to —

(a) the North West interconnected system; or

(b) the South West interconnected system as defined in section 3 of the Electricity Corporations Act 2005;

North West interconnected system means the interconnected transmission and distribution systems, generating works and associated works —

(a) located in the Pilbara region of the State; and

The Act’s operative core, as it now stands, rests on a handful of statutory concepts and cross‑references that determine scope and legal effect.

Corporation. The Act defines corporation by reference to entities created under the Electricity Corporations Act 2005, specifically the Electricity Networks Corporation and the Regional Power Corporation (s 2). That cross‑reference makes the Act operative in relation to the State entities that operate transmission and distribution systems.
Isolated system and North West interconnected system. The Act defines “isolated system” and “North West interconnected system” in s 2, distinguishing systems not connected to the State’s primary interconnections and the specific Pilbara network into which Dampier, Port Hedland and Cape Lambert generation supply electricity. Those geographic definitions delimit the statutory reach of the access concepts.
Electricity transmission and distribution systems and capacities. Section 89(1) supplies the technical legal definitions used for access regulation. Electricity transmission system and electricity distribution system are defined as the parts of the operator’s system prescribed by regulations, plus plant and equipment used in connection with transfer to or from those parts or related purposes, with prescription subject to the regulations (s 89(1)). Electricity transmission capacity and electricity distribution capacity are defined as the capacity of the respective system to transport electricity, consistent with maintaining continuity and integrity of the system. The definitions therefore embed operational integrity as a constraint on access capacity.
User. The Act defines user in s 89(2) as a person who has an arrangement with a corporation for access to transmission and/or distribution capacity, and explicitly includes the corporation to the extent it itself has such access. The definition therefore contemplates internal uses or inter‑corporate arrangements as falling within “user”.
Existing access agreement. Section 95(2) draws in legacy access arrangements by reference to the Electricity Transmission Regulations 1996 regulation 3(1) and the Electricity Distribution Regulations 1997 regulation 3(1). An “existing access agreement” for the purposes of s 95 is therefore a defined subset of pre‑2007 contracts that were in operation on 1 July 2007.
Enforcement and contractual character. Section 94(1) makes obligations in this Part and in Schedules 5 and 6 enforceable by civil proceedings but bars statutory causes of action for damages. Section 94(2) converts grants of access under clause 2 of Schedules 5 and 6 into contracts, and subsection (3) preserves the availability of damages for breach of any contract (including deemed contracts).
Phasing‑out mechanism. Section 95A establishes the ministerial power to declare that a specified relevant provision does not have effect on and from a day specified in the instrument. The section sets preconditions for that declaration and confines the window for making it to within 18 months after Schedule 5 clause 17 of the Electricity Corporations Act 2005 comes into operation (s 95A(3)). Regulations may then be used to repeal declared provisions and to make transitional or savings provisions (s 95A(4)).

Regulatory instruments and transitional settings are also main concepts. Section 95 permits regulations (made under s 96) to provide for access and pricing matters as required for operation and enforcement of existing access agreements. The Governor’s general regulation‑making power sits at s 96. The compilation notes and the Electricity Transmission and Distribution Systems (Repeal and Related Provisions) Regulations 2007 preserve limited continuing effect for certain Schedule clauses in relation to agreements in operation on 1 July 2007 (see notes and Repeal Regulations Pt 4 regs 10 and 11 in the accompanying notes).

Taken together, these concepts create a framework in which legacy access contracts retain legal force; statutory duties under the old access Schedules remain enforceable in limited fashion; and there is a formal route to unwind the residual provisions once alternative governance arrangements are judged adequate.

The Act’s present drafting limits the primary legal actors and affected parties to a narrow set.

Corporations. The defined “corporation” (s 2) means the Electricity Networks Corporation established by s 4(1)(b) and the Regional Power Corporation established by s 4(1)(d) of the Electricity Corporations Act 2005. Entities occupying those statutory roles bear the duties and are the principals providing access to transmission and distribution systems under the residual regime. Where the Act refers to obligations “imposed on a corporation” (s 94), those obligations attach to these State statutory corporations.
Users. Section 89(2) defines “user” as someone who has an arrangement with the corporation for access to transmission or distribution capacity, and explicitly includes the corporation itself to the extent it has access. Users therefore encompass third‑party retailers, generators, large customers, embedded network operators, and potentially the network operator when it uses capacity for its own purposes. That definition makes the statutory regime applicable to parties with contractual rights to capacity, not to potential entrants who have no arrangement in place.
Contracting counterparties to legacy access agreements. Section 95 identifies which contracts are “existing access agreements” for regulation‑making purposes: those defined in the Electricity Transmission Regulations 1996 reg 3(1) and the Electricity Distribution Regulations 1997 reg 3(1) that were in operation on 1 July 2007. Parties to those agreements remain within the residual regulatory regime that the Governor and the Minister can manage via regulations and declarations.
The Minister and the Governor. The Minister has the power to declare that specified relevant provisions cease to have effect (s 95A(1)). The Governor may make regulations necessary or convenient to give effect to the Act (s 96). These decisionmakers control the pace and content of the transition away from the legacy access regime.
Regulatory and market bodies under other Acts. While not named as parties to duties in this Act, the Act contemplates that the Electricity Industry Act 2004 Part 8, the Code established under that Part, and electricity system and market rules could be the alternative regulatory instruments that make legacy provisions redundant (s 95A(2)(b)(ii)). In practice that means market and regulatory institutions operating under the Electricity Industry Act 2004 will influence whether the Minister considers the legacy provisions no longer necessary.
Persons interested in property or contractual continuity. The transitional and saving provisions in the compilation notes and the Energy Corporations (Transitional and Consequential Provisions) Act 1994, reproduced in the notes, show that a range of stakeholders with interests in transferred assets, liabilities, contracts, guarantees and registration of documents are affected by the historical transfers and by the Act’s continuing transitional machinery.

Who bears costs and regulatory burden. Corporations administering distribution and transmission systems must continue to observe legacy obligations and maintain contractual relations for existing access agreements. Users with existing agreements must operate under the contractual framework recognised by the Act and may have statutory enforcement routes that are limited to specific remedies. The Minister and Governor bear the administrative and policy responsibility for making declarations and regulations to unwind the legacy regime when appropriate. Parties seeking damages for breaches of statutory obligations should note s 94(1) expressly disallows damages under the statute itself, leaving damages only as a remedy for contractual breach (s 94(3)).

Finally, the 2007 repeal regulations and the compilation table show that many original provisions are deleted or superseded, so legal practitioners and compliance officers must map current relationships against the definitions in s 2 and s 89 and the surviving Part 6 provisions to determine whether the Act applies to a particular contract or transaction.

The Act now contains a small number of discrete duties and rights, concentrated in Part 6 and the Schedules as preserved in transitional form.

Enforceable obligations but limited statutory remedies. Section 94(1) states that obligations imposed on a corporation by this Part and by Schedules 5 and 6 create duties enforceable by civil proceedings in a court, but that “no breach of those obligations gives rise to an action for damages.” This creates a statutory right of enforcement without a statutory right to damages, meaning remedies under the statute are likely declaratory, injunctive or specific performance in nature, subject to judicial discretion. The Act then preserves the capacity to obtain damages for breach of contract (s 94(3)).
Deemed contract status for access grants. Section 94(2) provides that a grant of access by a corporation under clause 2 of Schedule 5 or clause 2 of Schedule 6 and the terms and conditions of that grant are to be taken to constitute a contract between the corporation and the user. That deemed contract status converts statutory access grants under the legacy Schedules into enforceable contractual relationships. Section 94(3) reinforces that damages may be available for breach of such a contract.
Definitionally constrained rights to access and capacity. Section 89(1) defines electricity transmission and distribution capacity as the capacity to transport electricity consistent with the continuity and integrity of the system. The inclusion of the continuity and integrity qualifier places an express statutory constraint on rights to access where system integrity would be compromised. The electricity transmission and distribution system definitions cross‑refer to regulations for prescription of parts and to prescribed plant and equipment. Rights to access therefore depend on how the regulations identify the parts of the system and the prescribed equipment.
User inclusion of the corporation. Section 89(2) includes the corporation in the definition of user where it has access. That inclusion can have practical consequences for allocation of capacity and for disputes where the network operator is also a user, including in relation to prioritisation of capacity and allocation of rights under existing agreements.
Regulatory powers to address existing contracts. Section 95 allows regulations to be made that provide for matters relating to access to and pricing for transmission and distribution capacity to the extent necessary or expedient for the operation and enforcement of existing access agreements. This gives the Governor and administration limited regulatory authority to address gaps or enforce legacy agreements where the earlier Schedules are otherwise repealed.
Ministerial right to phase out legacy provisions. Section 95A empowers the Minister to declare that a specified relevant provision does not have effect on and after a specified day, if the Minister is of the opinion that the matters to which the relevant provision relates will be adequately dealt with elsewhere or no longer need to be dealt with by the Act (s 95A(2)). That creates a statutory right for the executive to eliminate parts of the Act once alternative regulatory arrangements are in place.
Exclusion of certain Criminal Code provisions. Section 94(4) provides that ss 177 and 178 of The Criminal Code do not apply to obligations created by or under this Part and Schedules 5 and 6. The Act therefore excludes some criminal consequences from attaching to these obligations.

Rights and duties are interlocked with the regulatory apparatus in two ways. First, rights to access and pricing for “existing access agreements” are explicitly capable of being regulated by regulation under s 95 and s 96. Second, the deemed contract protection in s 94(2) makes contractual enforcement a primary route for obtaining remedies, while s 94(1) constrains statutory remedies to non‑damages forms. The Act thereby shifts contested legal issues into contract law and into the regulatory instruments that the Governor and the Minister can make and adjust.

The Act does not establish pecuniary penalties within Part 6 for breach of the residual access obligations. Instead its enforcement architecture uses civil proceedings and contractual remedies, and it expressly excludes certain criminal provisions. The key enforcement mechanics are:

Civil enforceability but no statutory damages. The core provision is s 94(1): obligations in this Part and in Schedules 5 and 6 create duties enforceable by civil proceedings, but “no breach of those obligations gives rise to an action for damages.” That design means enforcement litigants may seek injunctive relief, declarations, orders for specific performance or other equitable remedies, but cannot rely on a statutory cause of action for monetary compensation arising directly from the statutory duty.
Contractual remedies preserved. Section 94(2) and (3) convert grants of access under clause 2 of Schedules 5 and 6 into contracts, and preserve the availability of damages for breach of any contract, including a contract deemed under subsection (2). This creates a two‑track enforcement architecture: statutory duties enforceable by civil proceedings without statutory damages, and contractual rights enforceable by contract remedies, including damages.
No application of specified Criminal Code sections. Section 94(4) states that sections 177 and 178 of The Criminal Code do not apply to obligations under this Part and the Schedules. The Act therefore removes those specific criminal consequences from the enforcement picture for these obligations. The statute does not otherwise add criminal penalties in the text that survives.
Role of courts. Since the Act delegates enforcement to civil proceedings, courts are the primary enforceers of the duties retained by the statute. The Act does not specify a specialist tribunal or administrative enforcement mechanism within its current text; it relies on the general civil court jurisdiction to obtain relief.
Regulation‑driven enforcement detail. Section 95 permits regulations for access and pricing to the extent necessary for the operation and enforcement of existing access agreements. Those regulations may contain enforcement mechanisms, dispute resolution processes, or pricing rules that practically affect the available remedies. The Governor’s regulation‑making power in s 96 is the statutory route for creating additional procedural or enforcement detail.
Ministerial and regulatory transition instruments. Section 95A empowers the Minister to phase out relevant provisions by Gazette instrument. Regulations under s 96 may repeal declared provisions and make transitional or savings provisions. These instruments can change the enforcement landscape by removing statutory duties or by preserving their effect for transitional purposes.

Enforcement consequences for stakeholders therefore depend heavily on whether obligations arise under contractual terms recognised by the Act, and on the content of any regulations made under s 95 and s 96. Practitioners should note that statutory relief for breach of the obligations is limited by s 94(1), and that the Act contemplates conversion of access grants into contractual claims where clause 2 of Schedules applies (s 94(2)). The existence or absence of regulatory instruments for existing access agreements will materially affect dispute resolution and enforcement practice.

The Act is now explicitly framed as a transitional residual statute that interacts with other energy‑sector legislation and subordinate instruments. The compilation and the text itself identify several interaction nodes.

Electricity Corporations Act 2005. Section 2 defines “corporation” by reference to the Electricity Corporations Act 2005 s 4(1)(b) and (d). The Act therefore ties its corporate obligations to the statutory corporations established under that Act. The compilation table and notes also record that numerous sections and Parts of the 1994 Act were deleted by the Electricity Corporations Act 2005 s 139, making the 2005 Act a primary structural successor for electricity governance.
Electricity Industry Act 2004 and market instruments. Section 95A(2)(b)(ii) expressly contemplates that a ministerial declaration removing relevant provisions is permissible where the matters are adequately dealt with by Part 8 of the Electricity Industry Act 2004, the Code established under that Part, and electricity system and market rules under that Act. In other words, the Electricity Industry Act 2004 and its market rules are intended to be the alternative regulatory framework that supplants the legacy access regime.
Electricity Transmission Regulations 1996 and Electricity Distribution Regulations 1997. The Act’s concept of “existing access agreement” depends on definitions found in the earlier subordinate regulations (s 95(2)). The ministerial authority to regulate existing access agreements therefore relates back to those regimes. The compilation table notes these regulations and their definitions as material to determining which agreements are captured.
Repeal and transitional regulations (2007). The Electricity Transmission and Distribution Systems (Repeal and Related Provisions) Regulations 2007 play a specific transitional role. The compilation notes show that Schedules 5 and 6 were deleted in the Gazette of 26 June 2007, and the Repeal Regulations Pt 4 preserved the operation of certain Schedule clauses in relation to agreements in operation on 1 July 2007 (see notes regs 10 and 11). Those Repeal Regulations therefore modify how the Act interacts with legacy contracts.
Criminal Code. Section 94(4) removes the application of sections 177 and 178 of The Criminal Code to obligations created by or under this Part and Schedules 5 and 6. The Act therefore specifically excludes the overlay of those criminal provisions on access obligations, while not addressing other criminal law interactions.
Other statutory transfer and transitional instruments. The compilation reproduces significant transitional provisions from the Energy Corporations (Transitional and Consequential Provisions) Act 1994, which govern transfers of assets, liabilities, guarantees, and continuity of agreements from the Commission to successor corporations. These transitional rules interact with property law, registration of documents, and guarantees, and remain relevant to any party affected by the historical transfers.
Governor and Minister regulation/administrative interaction. Sections 95, 95A and 96 give the Governor and the Minister instruments to change the operation of this Act and to make or withdraw provisions. These instruments will typically interact with the operation of other laws and regulatory bodies by changing which statutory regime governs access and pricing for particular agreements.

In practical terms, lawyers and compliance officers must map each contract or access right against the post‑2007 regulatory landscape. The Act’s residual provisions coexist with, and are frequently superseded by, the Electricity Industry Act 2004, the Electricity Corporations Act 2005, and subordinate regulations. The compilation table records the sequence of amendments and repeals that reallocated regulatory responsibility to newer instruments, which means that whether the 1994 Act applies in any particular case depends on historical timing and on whether the relevant agreement is an “existing access agreement” under s 95(2).

The compilation table and marginal notes in the provided text set out the Act’s amendment and repeal history. Key chronological points drawn from the source are:

Original Act and early commencement. The Electricity Corporation Act 1994 was enacted as No. 86 of 1994, assent 15 December 1994, with most of the Act commencing 1 January 1995 (compilation table).
Series of amendments 1996-2004. The compilation table records multiple consequential amendments across the late 1990s and early 2000s, including the State Enterprises (Commonwealth Tax Equivalents) Act 1996, various Statutes (Repeals and Minor Amendments) Acts, Financial Sector and Labour Relations reforms, and the Energy Legislation Amendment Act 2003 (No. 53 of 2003). These amendments gradually reshaped the Act.
Electricity Corporations Act 2005 reforms. The Electricity Corporations Act 2005 made substantial structural changes. The long title and many deletions in the body text note that Parts 2-5 and Part 7, and Schedules 1-4 and 7 were deleted by No. 18 of 2005 s 139. The 2005 Act established successor electricity corporations, which are now the “corporations” referred to in s 2 of the 1994 Act.
2007 repeal and related provisions. The Electricity Transmission and Distribution Systems (Repeal and Related Provisions) Regulations 2007, published in the Gazette 26 June 2007 and in force 1 July 2007 for most of the regulations, repealed Schedules 5 and 6 in the Act (notes and Gazette references). The Repeal Regulations also included transitional provisions preserving the continuing effect of certain Schedule clauses for pre‑existing agreements in operation on 1 July 2007 (see notes regs 10 and 11).
2024 Act and 2025 commencement. The compilation table records the Electricity Industry Amendment (Distributed Energy Resources) Act 2024 (No. 1 of 2024), assent 7 March 2024, with Part 2 Division 4 commencing 6 February 2025 (per SL 2025/31 cl 2) and other parts to be proclaimed. Section 95A was amended, with an amendment recorded: No. 1 of 2024 s 50. The compilation table also notes an uncommenced provision: Part 3 Division 3 of the 2024 Act to be proclaimed.
Deletions and insertions recorded in marginal notes. The text as compiled shows that s 3 has been deleted and that many sections (s 4-88) were deleted by the 2005 amendments (marginal notes). Schedules 5 and 6 are noted as deleted in Gazette 26 June 2007 p. 3019, though transitional rules persisted under the Repeal Regulations.

The amendment history shows progressive replacement of the original 1994 access regime by newer institutional arrangements introduced in 2004-2007, with targeted preservation of contractual rights for agreements in operation at the transition date. The 2024 amendment to s 95A is recorded in the compilation table and marginal notes, showing that the statutory machinery for phasing out legacy provisions was updated.

For practitioners, the chronology matters: whether a provision ever applied to a particular agreement, and whether it was preserved by transitional regulations, depends on the dates in the compilation table and the operative dates in the Repeal Regulations and later Acts. The Act itself and the compilation notes must be read together with the Electricity Corporations Act 2005, the Electricity Industry Act 2004 and the 2007 Repeal Regulations to establish which rules governed a given agreement at any given time.

The provided text contains no judicial decisions, case citations or litigation outcomes. The Act’s compilation does not list any cases and the body of the Act and the accompanying notes do not reference litigation concerning the Act or the Schedules. Practitioners should therefore note:

No litigation is recorded in the source. The compilation and marginal notes make no mention of reported cases, appeals or judicial interpretations of the surviving provisions.
Absence of cases in this text is not evidence that no litigation exists. It simply reflects that the compilation and explanatory notes supplied do not include any judicial history. Researchers seeking decisions construing s 94, s 95, s 95A or the transition provisions must search judicial databases, tribunal records and unreported judgments for relevant disputes.
The Act routes enforcement into civil courts (s 94(1)), so litigation, had it occurred, would likely appear in civil court reports or unreported judgment repositories. Where parties rely on contractual remedies created or preserved by the Act (s 94(2) and (3)), contract law cases might be the primary source of dispute resolution history.
Transitional litigation potential. Given the Act’s transitional design and the preservation of some Schedule clauses for existing agreements after the 2007 repeals, disputes about whether a particular agreement remained governed by the legacy clauses could have produced litigation. Nothing in this compilation records such outcomes.

For any matter involving contested interpretation of the Act as it applies to a particular agreement, or the effect of a Ministerial declaration under s 95A, practitioners must undertake a separate search for case law and tribunal decisions. The Act itself supplies the statutory text but no adjudicative history.

The Act’s present composition contains several non‑obvious features and traps for users, practitioners and regulators. These are concrete statutory risks and points of friction to be mindful of.

Statutory enforcement without statutory damages. Section 94(1) creates duties enforceable by civil proceedings but expressly states that no breach gives rise to an action for damages. Parties who expect statutory monetary remedies for breach of the obligations in Part 6 may be disappointed; damages are available only through contract law where a contractual relationship exists (s 94(3)). In practice this means claim strategies must frame causes of action in contract where monetary relief is sought.
Deemed contracts depend on repealed Schedules and transitional rules. Section 94(2) deems grants of access under clause 2 of Schedule 5 or clause 2 of Schedule 6 to be contracts. But Schedules 5 and 6 were repealed by the 2007 Repeal Regulations. The Repeal Regulations preserved some clause 2(4) effects for agreements in operation on 1 July 2007 (see notes). Determining whether a particular grant remains a deemed contract therefore requires historical and regulatory mapping: the agreement must be an “existing access agreement” as defined at s 95(2) or otherwise preserved by transitional regulations.
“User” includes the corporation. The user definition in s 89(2) includes the corporation to the extent it has access. This inclusion can create conflicts of interest and raise priority questions where the operator is both service provider and user of capacity. Contracts and network allocation rules need to address such situations expressly.
Continuity and integrity constraint on capacity. The definitions of electricity transmission and distribution capacity in s 89(1) are qualified by “consistent with the need to maintain the continuity and integrity of that system.” That statutory constraint can be invoked to deny capacity rights where system security would be endangered. Practitioners should ensure operational and technical constraints are clearly documented and understood.
Ministerial discretion to phase out provisions within a time window. Section 95A empowers the Minister to declare relevant provisions cease to have effect, but subsection (3) forbids making a declaration after the expiration of the period of 18 months beginning on the day Schedule 5 clause 17 of the Electricity Corporations Act 2005 comes into operation. The source does not supply the operative date for that Schedule clause; practitioners must determine the relevant commencement date in the Electricity Corporations Act 2005 to assess whether the ministerial window remains open. The 2024 amendment to s 95A is recorded, but operational detail depends on commencement events.
Interaction with other statutory regimes may displace rights. Section 95A(2) permits declarations where matters will be “adequately dealt with” by other provisions including the Electricity Industry Act 2004 Part 8, the Code and market rules. That means parties relying on legacy statutory protections could find those protections removed once the Minister concludes alternative arrangements suffice. Practitioners should track parallel regulatory instruments and market rules.
Transitional regulations modify contractual effect. The Repeal Regulations (2007) amended the continuing operation of Schedule clauses as if they were subject to an implied proviso that they operate “unless the contract expressly provides that the provision applies despite any inconsistency with the essential terms and conditions.” This insertion affects how deemed statutory provisions interact with contract terms and can alter the legal effect of legacy clauses.
Schedules largely repealed but still referenced. The Act’s text continues to reference Schedules 5 and 6 (for example in s 94 and s 95A). Even though those Schedules are deleted in the Gazette, the Act’s enforcement and transitional references mean that legacy contractual and regulatory effects persist for certain agreements. This hybrid state elevates complexity when determining current legal rights.
Exclusion of specified Criminal Code sections. Section 94(4) removes the application of sections 177 and 178 of The Criminal Code to obligations under this Part and the Schedules. Parties and advisers must not assume criminal liability under those specific sections applies to conduct in relation to these obligations.

Each of these points is grounded in the statutory text and the accompanying compilation notes and Repeal Regulations recorded in the source. The practical effect is that determining legal rights under this Act for any particular contract requires checking historical dates, the status of the relevant contract on 1 July 2007, the content of the Electricity Transmission Regulations 1996 and Electricity Distribution Regulations 1997 definitions, and any transitional instruments or Ministerial declarations made under s 95A. Failure to do so risks incorrect assumptions about remedies, contractual status, or the continuing applicability of legacy statutory provisions.

Compliance with the residual statutory framework in the Act requires targeted legal and operational steps. The following checklist sets out practical measures for corporations, users, counsel and compliance officers, derived from the statutory text.

Map the agreement to the statutory definitions
- Confirm whether the entity providing access is a “corporation” as defined in s 2 by reference to the Electricity Corporations Act 2005 s 4(1)(b) and (d).
- Verify whether the access arrangement is an “existing access agreement” as defined in s 95(2) by consulting the Electricity Transmission Regulations 1996 reg 3(1) and the Electricity Distribution Regulations 1997 reg 3(1) and confirming the agreement was in operation on 1 July 2007.
Assess statutory versus contractual remedies
- If obligations arise under Part 6 or the relevant Schedules, note that statutory duties are enforceable by civil proceedings but do not give rise to statutory damages (s 94(1)).
- Where a grant of access falls within clause 2 of a Schedule and is preserved by transitional rules, treat that grant as a contract under s 94(2) and preserve contractual remedies, including damages, under s 94(3). Ensure contractual terms are explicit on remedies and dispute resolution.
Review contract drafting for prevailing effect
- Where a contract could be inconsistent with the legacy Schedule clause that the Repeal Regulations preserved, ensure express language either adopts the Schedule clause or states the contract applies despite any inconsistency with the essential terms and conditions. The Repeal Regulations amended the continuing application of clause 2(4) accordingly.
Manage system integrity constraints
- Incorporate technical rules and procedures into contractual schedules to reflect the statutory continuity and integrity constraint on capacity (s 89(1)). Maintain records evidencing technical assessments that justify restrictions on access based on system security.
Monitor and respond to Ministerial declarations and regulations
- Track any instrument published in the Government Gazette under s 95A that declares relevant provisions cease to have effect. A declaration can alter the statutory landscape for affected agreements.
- Monitor regulation‑making activity under s 95 and s 96 for pricing or access instruments that affect existing access agreements. Regulations may prescribe operational or pricing obligations relevant to compliance.
Coordinate with corporate governance and asset transfers
- If the agreement concerns assets or liabilities that were transferred from the historical Commission to the current corporation, consult the transitional provisions in the Energy Corporations (Transitional and Consequential Provisions) Act 1994 reproduced in the compilation notes. Ensure proper recording and registration of transferred rights and documentation as required by s 54 (registration of documents) in the transitional material.
Prepare dispute resolution strategy
- Given the statutory restriction on damages, craft dispute strategies that prioritise contractual claims where monetary relief is required. Draft contracts to include clear dispute resolution mechanisms that consider injunctive and declaratory relief as necessary complements.
Ensure internal conflicts policies where corporation is a user
- Where the network operator also uses capacity, implement governance mechanisms to manage conflicts of interest stemming from s 89(2) inclusion of the corporation as a “user.” Make allocation policies transparent and contractually documented.
Maintain documentary evidence
- Preserve evidence of the dates on which agreements commenced and of any variations, amendments, or waivers. That proof is material to establishing whether a contract qualified as an “existing access agreement” for regulatory preservation.
Seek confirmation from regulatory authorities where uncertain
- If there is uncertainty about whether obligations have been displaced by Part 8 of the Electricity Industry Act 2004 or market rules, seek clarification from the relevant regulatory authority or consider applying for a formal decision or advice under the applicable regulatory regime.

Operationally, these steps require collaboration between legal counsel, technical operators and corporate governance teams. The core legal constraints , s 94(1)’s limitation on statutory damages, the need to check historical operation dates for agreements (s 95(2)), and the Minister’s power to declare provisions redundant (s 95A) , are determinative of compliance strategy. Keep records of Gazettal notices and any Ministerial instruments, and reconcile contractual terms with the statutory and regulatory history in the compilation table and the Repeal Regulations.

Electricity Transmission and Distribution Systems (Access) Act 1994

Plain English Summary

Deep Dive

What it does

Current sections