Part 1 Preliminary

Part 1 Preliminary

1 Citation

1 Citation

This Law may be referred to as the National Electricity (NSW) Law.

2 Definitions

2 Definitions

(1) In this Law—

access determination means a determination of the AER under Part 10;

access dispute has the meaning given by section 2A;

additional advisory functions—AEMO’s additional advisory functions are as set out in section 50B(1);

additional Minister initiated Rules means Rules made under Part 7, Division 2 (other than section 90) by the South Australian Minister;

adoptive jurisdiction means (according to context)—

(a) a participating jurisdiction for which AEMO is authorised to exercise its additional advisory functions; or

(b) a participating jurisdiction for which AEMO is authorised to exercise its declared network functions;

AEMC means the Australian Energy Market Commission established by section 5 of the Australian Energy Market Commission Establishment Act 2004 of South Australia;

AEMC initiated Rule means a Rule of the kind referred to in section 91(2);

AEMO amendments means—

(a) the amendments to this Law made by the National Electricity (South Australia) (National Electricity Law—Australian Energy Market Operator) Amendment Act 2009; and

(b) the amendments to the Rules made by the National Electricity (South Australia) (National Electricity Rules—Australian Energy Market Operator) Amendment Rules 2009;

AER means the Australian Energy Regulator established by section 44AE of the Competition and Consumer Act 2010 of the Commonwealth;

AER economic regulatory decision means a decision (however described) of the AER under this Law or the Rules performing or exercising an AER economic regulatory function or power;

AER economic regulatory function or power means a function or power performed or exercised by the AER under this Law or the Rules (other than making a rate of return instrument) that relates to—

(a) the economic regulation of services provided by—

(i) a regulated distribution system operator by means of, or in connection with, a distribution system; or

(ii) a regulated transmission system operator or AEMO by means of, or in connection with, a transmission system; or

(b) the preparation of a network service provider performance report; or

(c) the making of a transmission determination or distribution determination; or

(d) an access determination;

Note—

The application of a rate of return instrument under this Law is an AER economic regulatory function or power. See section 18V(2).

AER market liquidity obligation functions means the functions conferred on the AER under section 15(1)(eba);

AER trial waiver functions means the functions conferred on the AER under Part 3 Division 1D;

AER wholesale market monitoring functions— the AER wholesale market monitoring functions are as set out in section 18C(1);

AER wholesale market reporting functions— the AER wholesale market reporting functions are as set out in section 18C(2);

annual turnover has the same meaning as in section 2(1) of Schedule 2 to the Competition and Consumer Act 2010 of the Commonwealth;

application Act means an Act of a participating jurisdiction that applies, as a law of that jurisdiction, this Law or any part of this Law;

associate in relation to a person has the same meaning it would have under Division 2 of Part 1.2 of the Corporations Act 2001 of the Commonwealth if sections 13, 16(2) and 17 did not form part of that Act;

augmentation of a transmission or distribution system means work to enlarge the system or to increase its capacity to transmit or distribute electricity;

augmentation connection agreement means an agreement for connecting an augmentation to a declared shared network;

Australian Energy Market Operator or AEMO means Australian Energy Market Operator Limited (ACN 072 010 327);

Note—

Before its change of name, AEMO was known as NEMMCO.

CDR data has the same meaning as in the Competition and Consumer Act 2010 of the Commonwealth;

CDR provisions has the same meaning as in the Competition and Consumer Act 2010 of the Commonwealth;

changeover date means 1 July 2009 or some other date fixed as the changeover date by Ministerial Gazette notice;

civil monetary liability means a liability for damages, compensation or any other monetary amount that can be recovered by way of civil proceedings but does not include a liability for a civil penalty or an infringement penalty under this Law or a liability for the costs of a proceeding;

civil penalty—see section 2AB;

civil penalty provision—see section 2AA(1);

conduct provision—see section 2AA(2);

connection service means a connection service within the meaning of the Rules;

constituent components, in relation to a relevant regulatory decision, means the matters that constitute the elements or components of the relevant regulatory decision and on which that relevant regulatory decision is based and includes—

(a) matters that go to the making of the relevant regulatory decision; and

(b) decisions made by the AER for the purposes of the relevant regulatory decision;

Court means—

(a) where this Law applies as a law of the Commonwealth, the Federal Court;

(b) where this Law applies as a law of a participating jurisdiction that is a State or a Territory, the Supreme Court of that jurisdiction;

data holder has the same meaning as in the Competition and Consumer Act 2010 of the Commonwealth;

derogation means a jurisdictional derogation or participant derogation;

declared network functions—AEMO’s declared network functions are as set out in section 50C(1);

declared power system of an adoptive jurisdiction has the meaning given by the application Act of that jurisdiction;

declared shared network of an adoptive jurisdiction means the adoptive jurisdiction’s declared transmission system excluding any part of it that is a connection asset within the meaning of the Rules;

declared transmission system of an adoptive jurisdiction has the meaning given by the application Act of that jurisdiction and includes any augmentation of the defined declared transmission system;

declared transmission system operator of an adoptive jurisdiction has the meaning given by the application Act of that jurisdiction;

designated energy sector means an energy sector designated under section 56AC of the Competition and Consumer Act 2010 of the Commonwealth;

direct control network service has the meaning given by section 2B;

Dispute resolution panel means a person or panel of persons appointed under the Rules to hear and determine a rule dispute;

distribution determination means a determination of the AER under the Rules that regulates any 1 or more of the following—

(a) the terms and conditions for the provision of electricity network services that are the subject of economic regulation under the Rules including the prices an owner, controller or operator of a distribution system charges or may charge for those services;

(b) the revenue an owner, controller or operator of a distribution system earns or may earn from the provision by that owner, controller or operator of electricity network services that are the subject of economic regulation under the Rules;

distribution reliability standard means a standard imposed by or under the Rules or jurisdictional electricity legislation relating to the reliability or performance of a distribution system;

distribution service standard means a standard relating to the standard of services provided by a regulated distribution system operator by means of, or in connection with, a distribution system imposed—

(a) by or under jurisdictional electricity legislation; or

(b) by the AER in accordance with the Rules;

distribution system means the apparatus, electric lines, equipment, plant and buildings used to convey or control the conveyance of electricity that the Rules specify as, or as forming part of, a distribution system and includes a regulated stand-alone power system to the extent provided by the Rules;

distribution system safety duty means a duty or requirement under an Act of a participating jurisdiction, or any instrument made or issued under or for the purposes of that Act, relating to—

(a) the safe distribution of electricity in that jurisdiction; or

(b) the safe operation of a distribution system in that jurisdiction;

draft Rule determination means a determination of the AEMC under section 99;

ECA amendments means the amendments to this Law made by the Statutes Amendment (Energy Consumers Australia) Act 2014 of South Australia;

effective competition, for Part 3 Division 1A—see section 18B;

electricity contract, for Part 3 Division 1A—see section 18A;

electricity network service means a service provided by means of, or in connection with, a transmission system or distribution system;

electricity services means services that are necessary or incidental to the supply of electricity to consumers of electricity, including—

(a) the generation of electricity;

(b) electricity network services;

(c) the sale of electricity;

end user means a person who acquires electricity for consumption purposes, and includes a retail customer;

Energy Consumers Australia or ECA means the company incorporated, or to be incorporated, by the name Energy Consumers Australia Limited;

energy ombudsman has the same meaning as in the National Energy Retail Law;

Energy Security Board means the Board established by the MCE on 14 July 2017 to provide the MCE with advice for the purposes of—

(a) whole-of-system oversight for energy security and reliability of the national electricity market; and

(b) improving long-term planning for the national electricity market;

Federal Court means the Federal Court of Australia;

final Rule determination means a determination of the AEMC under section 102;

financial risk management product, for Part 3 Division 1A—see section 18A;

form of regulation factors has the meaning given by section 2F;

general market information order means an order under section 53(1)(a) requiring information from persons of a class specified in the order;

general regulatory information order has the meaning given by section 28C;

infrastructure planner has the same meaning as in the Electricity Infrastructure Investment Act 2020.

initial National Electricity Rules means the National Electricity Rules made under section 90;

innovative trial principles—see section 7B;

interconnected national electricity system means the interconnected transmission and distribution system in this jurisdiction and in the other participating jurisdictions used to convey and control the conveyance of electricity to which are connected—

(a) generating systems and other facilities; and

(b) loads settled through the wholesale exchange operated and administered by AEMO under this Law and the Rules;

jurisdictional derogation means a Rule made at the request of a Minister of a participating jurisdiction that—

(a) exempts, in a specified case or class of cases, a person or a body performing or exercising a function or power, or conferred a right, or on whom an obligation is imposed, under the Rules (including a Registered participant), or a class of such a person or body, or AEMO, from complying with a provision, or a part of a provision, of the Rules in the participating jurisdiction to which the derogation relates; or

(b) modifies or varies the application of a provision of the Rules (with or without substitution of a provision of the Rules or a part of a provision of the Rules) to a person or a body performing or exercising a function or power, or conferred a right, or on whom an obligation is imposed, under the Rules (including a Registered participant), or a class of such a person or body, or AEMO, in the participating jurisdiction to which the derogation relates;

jurisdictional electricity legislation means an Act of a participating jurisdiction (other than national electricity legislation), or any instrument made or issued under or for the purposes of that Act, that regulates the generation, transmission, distribution, supply or sale of electricity in that jurisdiction;

jurisdictional regulator means—

(a) if this Law is applied as a law of the State of New South Wales—

(i) the Independent Pricing and Regulatory Tribunal of New South Wales established by section 5(1) of the Independent Pricing and Regulatory Tribunal Act 1992 of New South Wales; or

(ii) if the functions or powers of the Independent Pricing and Regulatory Tribunal of New South Wales under this Law are transferred to the AER by or under a law of New South Wales, the AER;

(b) if this Law is applied as a law of the State of Victoria—

(i) the Essential Services Commission established by section 7(1) of the Essential Services Commission Act 2001 of Victoria; or

(ii) if the functions or powers of that Essential Services Commission under this Law are transferred to the AER by or under a law of Victoria, the AER;

(c) if this Law is applied as a law of the State of Queensland—

(i) the Queensland Competition Authority established by section 7 of the Queensland Competition Authority Act 1997 of Queensland; or

(ii) if the functions or powers of the Queensland Competition Authority under this Law are transferred to the AER by or under a law of Queensland, the AER;

(d) if this Law is applied as a law of the State of South Australia—

(i) the Essential Services Commission established by section 4(1) of the Essential Services Commission Act 2002 of South Australia; or

(ii) if the functions or powers of that Essential Services Commission under this Law are transferred to the AER by or under a law of South Australia, the AER;

(e) if this Law is applied as a law of the Australian Capital Territory—

(i) the Independent Competition and Regulatory Commission for the Australian Capital Territory established by section 5(1) of the Independent Competition and Regulatory Commission Act 1997 of the Australian Capital Territory; or

(ii) if the functions or powers of the Independent Competition and Regulatory Commission for the Australian Capital Territory under this Law are transferred to the AER by or under a law of the Australian Capital Territory, the AER;

(f) if a person or body referred to in paragraphs (a) to (e) is abolished under an Act of a participating jurisdiction and another person or body is established under an Act of that participating jurisdiction with functions and powers that correspond to the functions and powers of the person or body referred to in paragraphs (a) to (e), that other person or body;

(g) if the functions and powers of a person or body referred to in paragraphs (a) to (e) are transferred to another person or body established under an Act of the relevant participating jurisdiction, that other person or body;

(h) any other person or body established under an Act of a participating jurisdiction that is prescribed by the Regulations as a jurisdictional regulator of that jurisdiction;

jurisdictional system security coordinator means a person appointed under section 110;

liable entity—see section 14D;

listed corporation has the meaning given by section 9 of the Corporations Act 2001 of the Commonwealth;

market information instrument means a general market information order or a market information notice;

market information notice means a notice under section 53(1)(b) requiring information from the person to whom the notice is addressed;

market liquidity obligation means the obligation imposed by Rules made under Schedule 1 item 6G and includes matters related to the obligation;

market monitoring information notice, for Part 3 Division 1A—see section 18EC;

market monitoring information order, for Part 3 Division 1A—see section 18EC;

MCE means the group of Ministers (constituting or forming part of a Ministerial Council, Standing Council of Ministers or similar body (however described)) responsible for energy matters at a national level comprising 9 Ministers as follows—

(a) 1 Minister from the Commonwealth;

(b) 1 Minister from each State (totalling 6 Ministers);

(c) 1 Minister from each Territory (totalling 2 Ministers),

acting in accordance with its own procedures;

MCE directed review means a review conducted by the AEMC under Division 4 of Part 4;

MCE statement of policy principles means a statement of policy principles issued by the MCE under section 8;

Ministerial Gazette notice means a notice in the South Australian Government Gazette published by the South Australian Minister on the recommendation of the MCE;

Ministerial pilot metering determination means a determination made under section 118B;

Ministerial smart metering determination means—

(a) (Repealed)

(b) a Ministerial pilot metering determination;

Minister of a participating jurisdiction means a Minister who is a Minister of a participating jurisdiction within the meaning of section 6;

monitored market, for Part 3 Division 1A—see section 18A;

National Electricity Code means the code of conduct called the National Electricity Code approved, in accordance with section 6(1) of the old National Electricity Law, as the initial Code for the purposes of that Law, and as amended from time to time in accordance with its terms and the old National Electricity Law;

national electricity legislation means—

(a) the National Electricity (South Australia) Act 1996 of South Australia and Regulations in force under that Act; and

(b) the National Electricity (South Australia) Law; and

(c) an Act of a participating jurisdiction (other than South Australia) that applies, as a law of that jurisdiction, any part of—

(i) the Regulations referred to in paragraph (a); or

(ii) the National Electricity Law set out in the Schedule to the Act referred to in paragraph (a); and

(d) the National Electricity Law set out in the Schedule to the Act referred to in paragraph (a) as applied as a law of a participating jurisdiction (other than South Australia); and

(e) the Regulations referred to in paragraph (a) as applied as a law of a participating jurisdiction (other than South Australia);

national electricity market means—

(a) the wholesale exchange operated and administered by AEMO under this Law and the Rules; and

(b) the national electricity system;

national electricity objective means the objective set out in section 7;

National Electricity Rules or Rules means—

(a) the initial National Electricity Rules; and

(ab) additional Minister initiated Rules; and

(ac) section 27/41 rules, except in Parts 4 and 7; and

(ad) section 42A rules, except in Parts 4 and 7; and

(b) Rules made by the AEMC under this Law, including Rules that amend or revoke—

(i) the initial National Electricity Rules or additional Minister initiated Rules; or

(ii) Rules made by it;

national electricity system means—

(a) the generating systems and other facilities owned, controlled or operated in the participating jurisdictions connected to the interconnected national electricity system; and

(b) the interconnected national electricity system; and

(c) regulated stand-alone power systems;

National Energy Retail Law means the National Energy Retail Law set out in the Schedule to the National Energy Retail Law (South Australia) Act 2011 of South Australia;

National Energy Retail Rules has the same meaning as in the National Energy Retail Law;

National Gas Law means the National Gas Law set out in the Schedule to the National Gas (South Australia) Act 2008 of South Australia;

National Gas Rules has the same meaning as in the National Gas Law;

national transmission grid means the transmission systems that form part of the interconnected national electricity system;

National Transmission Planner means AEMO acting in the performance of NTP functions;

negotiated network service has the meaning given by section 2C;

NEMMCO means National Electricity Market Management Company Limited (ACN 072 010 327);

Note—

NEMMCO becomes AEMO (without change of corporate identity). A reference to NEMMCO is a reference to AEMO before its change of name.

network agreement means the agreement required by section 50D(1);

network revenue or pricing determination means a distribution determination or a transmission determination;

network service provider means a Registered participant registered for the purposes of section 11(2) that owns, controls or operates a transmission system or distribution system that forms part of the interconnected national electricity system or that owns, controls or operates a regulated stand-alone power system;

network service provider performance report means a report prepared by the AER under section 28V;

network service user means a user who is provided with an electricity network service;

NTP functions means the functions described in section 49(2);

offence provision means a provision of this Law the breach or contravention of which by a person exposes that person to a finding of guilt by a court;

officer has the same meaning as officer has in relation to a corporation under section 9 of the Corporations Act 2001 of the Commonwealth;

old National Electricity Law means the National Electricity Law set out in the Schedule to the National Electricity (South Australia) Act 1996 of South Australia as in force from time to time before the commencement of section 12 of the National Electricity (South Australia) (New National Electricity Law) Amendment Act 2005 of South Australia;

participant derogation means a Rule made at the request of a person who is conferred a right, or on whom an obligation is imposed, under the Rules (including a Registered participant), or AEMO, that—

(a) exempts, in a specified case or class of cases, that person or a class of person of which that person is a member, or AEMO, from complying with a provision, or a part of a provision, of the Rules, including a jurisdictional derogation; or

(b) modifies or varies the application of a provision of the Rules, including a jurisdictional derogation, (with or without substitution of a provision of the Rules or a part of a provision of the Rules) to that person or class of person of which that person is a member, or AEMO;

participating jurisdiction means a jurisdiction that is a participating jurisdiction within the meaning of section 5;

power system security means the safe scheduling and dispatch, and operation and control, of the national electricity system (other than regulated stand-alone power systems);

prospective network service user means a person who seeks or wishes to be provided with an electricity network service;

protected information has the meaning given by section 54(1);

rate of return instrument—see section 18I(2);

Registered participant means a person who is registered as such by AEMO under this Law and the Rules or is registered as such by AEMO otherwise in accordance with the Rules;

regulated distribution system operator means an owner, controller or operator of a distribution system—

(a) who is a Registered participant; and

(b) whose revenue from, or prices that are charged for, the provision of electricity network services are regulated under a distribution determination;

regulated network service provider means—

(a) a regulated distribution system operator; or

(b) a regulated transmission system operator;

regulated stand-alone power system—see section 6B;

regulated transmission system operator means an owner, controller or operator of a transmission system—

(a) who is a Registered participant; and

(b) whose revenue from, or prices that are charged for, the provision of electricity network services are regulated under a transmission determination;

Regulations means the regulations made under Part 4 of the National Electricity (South Australia) Act 1996 of South Australia that apply as a law of this jurisdiction;

regulatory information instrument means a general regulatory information order or a regulatory information notice;

regulatory information notice has the meaning given by section 28D;

regulatory obligation or requirement has the meaning given by section 2D;

regulatory payment has the meaning given by section 2E;

relevant agreement, for Part 3 Division 1A—see section 18A;

relevant court means any court of this jurisdiction;

relevant regulatory decision means—

(a) a network revenue or pricing determination that specifies a period to be a regulatory period for the purposes of the determination; or

(b) any other determination (including a distribution determination or transmission determination) or decision of the AER that is prescribed by the Regulations to be a relevant regulatory decision,

but does not include a decision of the AER made under Part 3 Division 6;

reliability obligation civil penalty provision—see section 2AA(1a);

reliability obligations means the obligations that apply to a liable entity under sections 14P(1) and (3) and 14R(2);

Reliability Panel means the panel of persons established by the AEMC under section 38;

retail customer means a person to whom electricity is sold by a retailer, and supplied in respect of connection points, for the premises of the person, and includes a person (or a person who is of a class of persons) prescribed by the Rules for the purposes of this definition;

retailer means a person who is the holder of a retailer authorisation issued under the National Energy Retail Law in respect of the sale of electricity;

Retailer Reliability Obligation means—

(a) Part 2A of this Law; and

(b) the provisions of the Rules that relate to Part 2A of this Law;

Rule dispute means a dispute between persons in relation to a matter or thing arising under the Rules in respect of which the Rules provide that the dispute must be resolved in accordance with the Rules;

revenue and pricing principles means the principles set out in section 7A;

section 27/41 rule means a provision included in the Rules by operation of a regulation under the Electricity Infrastructure Investment Act 2020, section 27 or 41, or both.

section 42A rule means a provision included in the Rules by operation of a regulation under section 42A of the Electricity Infrastructure Investment Act 2020.

shared network capability service means a service described in section 50D(1) as a shared network capability service;

shared transmission service means a service classified under the Rules as a shared transmission service;

smart meter amendments means the amendments to this Law made by section 5 of the National Electricity (South Australia) (Smart Meters) Amendment Act 2009 of South Australia;

South Australian Minister means the Minister of the Crown in right of South Australia who administers Part 2 of the National Electricity (South Australia) Act 1996 of South Australia;

statutory functions, in relation to AEMO, means functions or powers conferred under—

(a) this Law or the Rules; or

(b) the National Gas Law, the National Gas Rules, or related subordinate legislation;

superseded jurisdictional rules means—

(a) legislation (including subordinate legislation) of a participating jurisdiction regulating the electricity industry in that jurisdiction that—

(i) was in force immediately before the changeover date; and

(ii) is superseded by the AEMO amendments; and

(b) a licence condition governing the activities of the licensee in, or in relation to, an electricity market in a participating jurisdiction—

(i) in force immediately before the changeover date; and

(ii) superseded by the AEMO amendments; and

(c) a guideline, code, standard or other instrument governing the operation or regulation of an electricity market in a participating jurisdiction—

(i) made or issued by the jurisdictional regulator; and

(ii) in force immediately before the changeover date; and

(iii) superseded by the AEMO amendments;

Territory means the Australian Capital Territory or the Northern Territory;

transmission determination means a determination of the AER under the Rules that regulates any 1 or more of the following—

(a) the terms and conditions for the provision of electricity network services that are the subject of economic regulation under the Rules including the prices an owner, controller or operator of a transmission system charges or may charge for those services;

(b) the revenue an owner, controller or operator of a transmission system earns or may earn from the provision by that owner, controller or operator of electricity network services that are the subject of economic regulation under the Rules;

transmission reliability standard means a standard imposed by or under the Rules or jurisdictional electricity legislation relating to the reliability or performance of a transmission system;

transmission service standard means a standard relating to the standard of services provided by a regulated transmission system operator by means of, or in connection with, a transmission system imposed—

(a) by or under jurisdictional electricity legislation; or

(b) by the AER in accordance with the Rules;

transmission system means the apparatus, electric lines, equipment, plant and buildings used to convey or control the conveyance of electricity that the Rules specify as, or forming part of, a transmission system;

transmission system safety duty means a duty or requirement under an Act of a participating jurisdiction, or any instrument made or issued under or for the purposes of that Act, relating to—

(a) the safe transmission of electricity in that jurisdiction; or

(b) the safe operation of a transmission system in that jurisdiction;

trial project means a project—

(a) that—

(i) the AER is satisfied is genuinely innovative taking into account the innovative trial principles (in relation to a trial waiver for a trial project); or

(ii) the AEMC is satisfied is genuinely innovative taking into account the innovative trial principles (in relation to a trial Rule for the purposes of a trial project); and

(b) that tests an approach in relation to the supply of, or demand for, electricity;

trial Rule—see section 87;

trial waiver—see section 18ZL;

Tribunal means the Australian Competition Tribunal referred to in the Competition and Consumer Act 2010 of the Commonwealth and includes a member of the Tribunal or a Division of the Tribunal performing functions of the Tribunal;

VENCorp means the Victorian Energy Networks Corporation continued under Part 8 of the Gas Industry Act 2001 of Victoria until the AEMO amendments came into force;

wholesale electricity market means any wholesale market for electricity regulated under this Law and the Rules.

(2) A reference in this Law to an end user includes a reference to a prospective end user.

s 2: Am 2007 No 53, sec 5; 2009 No 31, sec 7; 2009 No 54, sec 4; 2011 No 7, sec 5; 2013 No 69, sec 4; 2013 No 79, sec 4; 2014 No 21, sec 21; 2016 No 56, sec 4; 2018 No 12, sec 4; 2018 No 33, sec 4; 2019 No 10, sec 5; 2020 No 37, sec 4; 2021 No 3, sec 5; 2021 No 9, sec 4; 2022 No 16, sec 4; 2022 No 21, sec 4; 2022 No 22, sec 4; 2024 No 12, sec 4; 2024 No 83, Sch 1[22]; 2025 No 80, Sch 1[48]; 2025 No 61, Sch 1, cl 1.

2A Meaning of access dispute

2A Meaning of access dispute

An access dispute is—

(a) a dispute between a network service user (or prospective network service user) and a network service provider about an aspect of access to an electricity network service specified by the Rules to be an aspect to which Part 10 applies; or

(b) without limiting paragraph (a)—a dispute between a retail customer (or other person specified by the Rules) and a regulated distribution system operator about an aspect of access to a connection service specified by the Rules to be an aspect to which Part 10 applies.

s 2A: Ins 2007 N 53, sec 6. Subst 2011 No 7, sec 6.

2AA Meaning of civil penalty provision and conduct provision

2AA Meaning of civil penalty provision and conduct provision

(1) A civil penalty provision is—

(a) a provision of this Law specified in the Table at the foot of this subsection; or

(b) (Repealed)

(ba) a reliability obligation civil penalty provision; or

(bb) a section 27/41 rule that is declared by the provision or another provision to be a civil penalty provision; or

(bc) a section 42A rule that is declared by the provision or another provision to be a civil penalty provision; or

(c) a provision of this Law (other than an offence provision) or the Rules that is prescribed by the Regulations to be a civil penalty provision.

Table

| Provision | Section heading | | Section 11(1), (2), (3) and (4) | Electricity market activities in this jurisdiction | | Section 14A | Regulated transmission system operator must comply with transmission determination | | Section 14B | Regulated distribution system operator must comply with distribution determination | | Section 14P(1) and (3) | Obligation to report net contract position | | Section 18ZC(1) and (2) | Obligation of regulated entities to keep records | | Section 18ZD | Obligation of regulated entities to provide information and data about compliance | | Section 18ZF(1) and (3) | Compliance audits by regulated entities | | Section 28N | Compliance with regulatory information notice that is served | | Section 28O | Compliance with general regulatory information order | | Section 50D(1) | Network agreement | | Section 50F(1), (4) and (5) | Augmentation | | Section 53C(3) and (4 | Compliance with market information instrument | | Section 136 | Compliance with access determination | | Section 157(1) | Preventing or hindering access |

(1a) A reliability obligation civil penalty provision is section 14R(2).

(2) A conduct provision is a provision of this Law (other than an offence provision) or the Rules that is prescribed by the Regulations to be a conduct provision.

s 2AA: Ins 2011 No 7, sec 7. Am 2019 No 10, sec 6; 2020 No 37, sec 5; 2024 No 83, Sch 1[22]; 2025 No 80, Sch 1[48].

2AB Civil penalty amounts for breaches of civil penalty provisions

2AB Civil penalty amounts for breaches of civil penalty provisions

(1) Subject to this section, the civil penalty for a breach of a civil penalty provision is—

(a) in the case of a breach of a civil penalty provision, other than a provision prescribed under paragraph (b), (c) or (d)—

(i) if the breach is by a natural person—

(A) an amount not exceeding $33 900; plus

(B) an amount not exceeding $3 390 for every day during which the breach continues;

(ii) if the breach is by a body corporate—

(A) an amount not exceeding $170 000; plus

(B) an amount not exceeding $17 000 for every day during which the breach continues; or

(b) in the case of a breach of a civil penalty provision prescribed by the Regulations for the purposes of this paragraph—

(i) if the breach is by a natural person—

(A) an amount not exceeding $287 000; plus

(B) an amount not exceeding $14 400 for every day during which the breach continues;

(ii) if the breach is by a body corporate—

(A) an amount not exceeding $1 435 000; plus

(B) an amount not exceeding $71 800 for every day during which the breach continues; or

(c) in the case of a breach of a civil penalty provision prescribed by the Regulations for the purposes of this paragraph—

(i) if the breach is by a natural person—an amount not exceeding $500 000;

(ii) if the breach is by a body corporate—an amount not exceeding the greater of the following—

(A) $10 000 000;

(B) if the Court can determine the value of any benefit reasonably attributable to the breach of the civil penalty provision that the body corporate, and any body corporate related to the body corporate, has obtained, directly or indirectly—3 times the value of that benefit;

(C) if the Court cannot determine the value of the benefit—10% of the annual turnover of the body corporate during the 12-month period ending at the end of the month in which the body corporate breached, or began breaching, the civil penalty provision; or

(d) in the case of a breach of a reliability obligation civil penalty provision—

(i) if the breach is by a natural person—an amount not exceeding $1 435 000;

(ii) if the breach is by a body corporate—

(A) an amount not exceeding $1 435 000 for a breach that relates to a reliability gap period; or

(B) an amount that applies under paragraph (c)(ii), as if the reliability obligation civil penalty provision were prescribed by the Regulations for the purposes of paragraph (c), for a breach that relates to a second or subsequent reliability gap period.

Note—

See section 67A, which deals with conduct that constitutes a breach of a reliability obligation civil penalty provision on 2 or more occasions in relation to the same reliability gap period.

Note—

See Schedule 2 clause 37A, which provides for the amounts specified in this subsection to be adjusted every 3 years to reflect movements in the consumer price index. The adjusted amounts are published on the AER’s website.

(2) Subsection (1)(c)(ii)(B) or (C) will only apply in a particular case (including by operation of subsection (1)(d)(ii)(B)) if the AER, in applying for an order under section 61(2)(a), requests that those provisions be applied in that particular case.

(3) Despite subsection (1), the civil penalty for a breach of a civil penalty provision that is a section 27/41 rule or section 42A rule is—

(a) if the provision is declared to be a tier 3 civil penalty provision—the amounts specified in subsection (1)(a)(i) and (ii); or

(b) if the provision is declared to be a tier 2 civil penalty provision—the amounts specified in subsection (1)(b)(i) and (ii); or

(c) if the provision is declared to be a tier 1 civil penalty provision—the amounts specified in subsection (1)(c)(i) and (ii).

s 2AB: Ins 2020 No 37, sec 6. Am 2024 No 83, Sch 1[22]; 2025 No 80, Sch 1[48].

2B Meaning of direct control network service

2B Meaning of direct control network service

A direct control network service is an electricity network service—

(a) the Rules specify as a service the price for which, or the revenue to be earned from which, must be regulated under a distribution determination or transmission determination; or

(b) if the Rules do not do so, the AER specifies, in a distribution determination or transmission determination, as a service the price for which, or the revenue to be earned from which, must be regulated under the distribution determination or transmission determination.

s 2B: Ins 2007 N 53, sec 6.

2C Meaning of negotiated network service

2C Meaning of negotiated network service

A negotiated network service is an electricity network service—

(a) that is not a direct control network service; and

(b) that—

(i) the Rules specify as a negotiated network service; or

(ii) if the Rules do not do so, the AER specifies as a negotiated network service in a distribution determination or transmission determination.

s 2C: Ins 2007 N 53, sec 6.

2D Meaning of regulatory obligation or requirement

2D Meaning of regulatory obligation or requirement

(1) A regulatory obligation or requirement is—

(a) in relation to the provision of an electricity network service by a regulated network service provider—

(i) a distribution system safety duty or transmission system safety duty; or

(ii) a distribution reliability standard or transmission reliability standard; or

(iii) a distribution service standard or transmission service standard; or

(b) an obligation or requirement under—

(i) this Law or Rules; or

(ia) the National Energy Retail Law or the National Energy Retail Rules; or

(ii) an Act of a participating jurisdiction, or any instrument made or issued under or for the purposes of that Act, that levies or imposes a tax or other levy that is payable by a regulated network service provider; or

(iii) an Act of a participating jurisdiction, or any instrument made or issued under or for the purposes of that Act, that regulates the use of land in a participating jurisdiction by a regulated network service provider; or

(iv) an Act of a participating jurisdiction or any instrument made or issued under or for the purposes of that Act that relates to the protection of the environment; or

(v) an Act of a participating jurisdiction, or any instrument made or issued under or for the purposes of that Act (other than national electricity legislation or an Act of a participating jurisdiction or an Act or instrument referred to in subparagraphs (ii) to (iv)), that materially affects the provision, by a regulated network service provider, of electricity network services that are the subject of a distribution determination or transmission determination.

(2) A regulatory obligation or requirement does not include an obligation or requirement to pay a fine, penalty or compensation—

(a) for a breach of—

(i) a distribution system safety duty or transmission system safety duty; or

(ii) a distribution reliability standard or transmission reliability standard; or

(iii) a distribution service standard or transmission service standard; or

(b) under this Law or the Rules, the National Energy Retail Law or the National Energy Retail Rules or an Act or an instrument referred to in subsection (1)(b)(ii) to (v).

Note—

s 2D: Ins 2007 N 53, sec 6. Am 2011 No 7, sec 8.

2E Meaning of regulatory payment

2E Meaning of regulatory payment

A regulatory payment is a sum that a regulated network service provider has been required or allowed to pay to a network service user or an end user for a breach of, as the case requires—

(a) a distribution reliability standard or transmission reliability standard; or

(b) a distribution service standard or transmission service standard,

because it was efficient for the regulated network service provider (in terms of the provider’s overall business) to pay that sum.

Note—

See also section 7A(2)(b).

s 2E: Ins 2007 N 53, sec 6.

2F Form of regulation factors

2F Form of regulation factors

The form of regulation factors are—

(a) the presence and extent of any barriers to entry in a market for electricity network services;

(b) the presence and extent of any network externalities (that is, interdependencies) between an electricity network service provided by a network service provider and any other electricity network service provided by the network service provider;

(c) the presence and extent of any network externalities (that is, interdependencies) between an electricity network service provided by a network service provider and any other service provided by the network service provider in any other market;

(d) the extent to which any market power possessed by a network service provider is, or is likely to be, mitigated by any countervailing market power possessed by a network service user or prospective network service user;

(e) the presence and extent of any substitute, and the elasticity of demand, in a market for an electricity network service in which a network service provider provides that service;

(f) the presence and extent of any substitute for, and the elasticity of demand in a market for, electricity or gas (as the case may be);

(g) the extent to which there is information available to a prospective network service user or network service user, and whether that information is adequate, to enable the prospective network service user or network service user to negotiate on an informed basis with a network service provider for the provision of an electricity network service to them by the network service provider.

s 2F: Ins 2007 N 53, sec 6.

2G Related bodies corporate

2G Related bodies corporate

For the purposes of this Law, 2 or more bodies corporate are related to each other if they are related bodies corporate within the meaning of the Corporations Act 2001 of the Commonwealth.

s 2G: Ins 2020 No 37, sec 7.

3 Interpretation generally

3 Interpretation generally

Schedule 2 to this Law applies to this Law, the Regulations and the Rules and any other statutory instrument made under this Law.

4 Savings and transitionals

4 Savings and transitionals

Schedule 3 to this Law has effect.

5 Participating jurisdictions

5 Participating jurisdictions

(1) The following jurisdictions are participating jurisdictions for the purposes of this Law—

(a) the State of South Australia; and

(b) the Commonwealth, a Territory or a State (other than South Australia) if there is in force, as part of the law of that jurisdiction, a law that applies this Law or any part of this Law (whether by a law that corresponds to Part 2 of the National Electricity (South Australia) Act 1996 of South Australia or by some other law).

(2) If a law of a participating jurisdiction referred to in subsection (1)(b) ceases to be in force, the jurisdiction ceases to be a participating jurisdiction.

(3) If, at any time, all participating jurisdictions agree that a specified jurisdiction will cease to be a participating jurisdiction on a specified date, the jurisdiction ceases to be a participating jurisdiction on that date.

(4) A notice must be published in the South Australian Government Gazette of the date on which a jurisdiction ceases to be a participating jurisdiction under subsection (2) or (3).

(5) If the legislature of a participating jurisdiction enacts a law that, in the unanimous opinion of the Ministers of the other participating jurisdictions, is inconsistent with this Law, those other participating jurisdictions may give notice to the Minister of the first-mentioned participating jurisdiction to the effect that, if the inconsistent law remains in force as an inconsistent law for more than 6 months after the notice is given, the other participating jurisdictions may declare that the jurisdiction has ceased to be a participating jurisdiction.

(6) A jurisdiction ceases to be a participating jurisdiction on publication in the South Australian Government Gazette of a declaration made by the Ministers of the other participating jurisdictions in accordance with subsection (5).

s 5: Am 2021 No 3, sec 6.

6 Ministers of participating jurisdictions

6 Ministers of participating jurisdictions

(1) The Ministers of the participating jurisdictions are—

(a) the South Australian Minister; and

(b) the Ministers of the Crown in right of the other participating jurisdictions administering the laws of those jurisdictions that apply this Law or any part of this Law (whether by a law that corresponds to Part 2 of the National Electricity (South Australia) Act 1996 of South Australia or by some other law).

s 6: Am 2007 No 53, sec 7; 2021 No 3, sec 7; 2025 No 61, Sch 1, cl 2.

6A Nominated distributors

6A Nominated distributors

(1) The regulations under the application Act of a participating jurisdiction (a local regulation) may—

(a) nominate an entity, being an entity that is licensed or otherwise authorised under the jurisdictional electricity legislation of that jurisdiction to operate a distribution system but that is not a regulated distribution system operator (within the meaning of this Law) in respect of that distribution system, as an entity to which this section applies (the nominated distributor); and

(b) apply to the nominated distributor specified provisions of the Rules that relate to the following matters—

(i) the provision of connection services to retail customers;

(ii) retail support obligations between regulated distribution system operators and retailers;

(iii) credit support arrangements between regulated distribution system operators and retailers.

(2) The application of any such specified provisions of the Rules to the nominated distributor is subject to such modifications as may be specified in the local regulation.

(3) The nominated distributor—

(a) must comply with the Rules to the extent that the Rules are applied by the local regulation to the nominated distributor; and

(b) may, to the extent that the Rules apply to the nominated distributor, be proceeded against under this Law for any breach of those Rules.

(4) A nomination of an entity by a local regulation may be made for—

(a) the whole or a specified part of the geographical area of a jurisdiction; or

(b) the whole or a specified part of a distribution system that is owned, controlled or operated by the entity,

or for both.

(5) The Minister responsible for administering the application Act (other than the application Act of South Australia) under which a local regulation referred to in this section is made is to make arrangements for notice of the making and publication of the regulation to be published for information in the South Australian Government Gazette.

s 6A: Ins 2011 No 7, sec 9.

6B Regulated stand-alone power systems

6B Regulated stand-alone power systems

(1) The regulations under the application Act of a participating jurisdiction (a local regulation) may provide that the following form part of the national electricity system (a regulated stand-alone power system)—

(a) a particular stand-alone power system, which consists of a distribution system owned, controlled or operated, or proposed to be owned, controlled or operated, by a regulated distribution system operator;

(b) a stand-alone power system, which consists of a distribution system owned, controlled or operated, or proposed to be owned, controlled or operated, by a regulated distribution system operator, that belongs to a particular class of stand-alone power systems.

(2) Without limiting subsection (1), the local regulation may provide that a particular stand-alone power system, or a class of stand-alone power systems, forms part of the national electricity system by reference to—

(a) the particular geographic area in which the stand-alone power system, or class of stand-alone power systems, is or will be located; or

(b) the regulated distribution system operator that owns, controls or operates, or proposes to own, control or operate, the stand-alone power system or class of stand-alone power systems; or

(c) whether the stand-alone power system, or class of stand-alone power systems, complies with any requirements specified by the Rules.

(3) The local regulation may modify the application of a specified provision of this Law or the Rules for and with respect to a regulated stand-alone power system or a class of regulated stand-alone power systems.

(4) A regulated distribution system operator that owns, controls or operates a regulated stand-alone power system—

(a) must comply with the Rules to the extent that the Rules are applied by the local regulation to the regulated stand-alone power system; and

(b) may, to the extent that the Rules apply to the regulated stand-alone power system, be proceeded against under this Law for any breach of those Rules.

(5) The Minister responsible for administering the application Act (other than the application Act of South Australia) under which a local regulation referred to in this section is made is to make arrangements for notice of the making and publication of the regulation to be published for information in the South Australian Government Gazette.

(6) In this section—

stand-alone power system means a system that—

(a) generates and distributes electricity; and

(b) does not form part of the interconnected national electricity system.

s 6B: Ins 2021 No 9, sec 5.

7 National electricity objective

7 National electricity objective

The objective of this Law is to promote efficient investment in, and efficient operation and use of, electricity services for the long term interests of consumers of electricity with respect to—

(a) price, quality, safety, reliability and security of supply of electricity; and

(b) the reliability, safety and security of the national electricity system; and

(c) the achievement of targets set by a participating jurisdiction—

(i) for reducing Australia’s greenhouse gas emissions; or

(ii) that are likely to contribute to reducing Australia’s greenhouse gas emissions.

Note—

The AEMC must publish targets in a targets statement: see section 32A.

s 7: Subst 2007 No 53, sec 8. Am 2023 No 26, sec 4.

7AA Regulations may prescribe matters for national electricity objective

7AA Regulations may prescribe matters for national electricity objective

Without limiting Part 4 of the National Electricity (South Australia) Act 1996 of South Australia, the Regulations may make provision about a matter relating to the achievement of targets mentioned in section 7(c) of this Law.

s 7AA: Ins 2023 No 26, sec 5.

7A Revenue and pricing principles

7A Revenue and pricing principles

(1) The revenue and pricing principles are the principles set out in subsections (2) to (7).

(2) A regulated network service provider should be provided with a reasonable opportunity to recover at least the efficient costs the operator incurs in—

(a) providing direct control network services; and

(b) complying with a regulatory obligation or requirement or making a regulatory payment.

(3) A regulated network service provider should be provided with effective incentives in order to promote economic efficiency with respect to direct control network services the operator provides. The economic efficiency that should be promoted includes—

(a) efficient investment in a distribution system or transmission system with which the operator provides direct control network services; and

(b) the efficient provision of electricity network services; and

(c) the efficient use of the distribution system or transmission system with which the operator provides direct control network services.

(4) Regard should be had to the regulatory asset base with respect to a distribution system or transmission system adopted—

(a) in any previous—

(i) as the case requires, distribution determination or transmission determination; or

(ii) determination or decision under the National Electricity Code or jurisdictional electricity legislation regulating the revenue earned, or prices charged, by a person providing services by means of that distribution system or transmission system; or

(b) in the Rules.

(5) A price or charge for the provision of a direct control network service should allow for a return commensurate with the regulatory and commercial risks involved in providing the direct control network service to which that price or charge relates.

(6) Regard should be had to the economic costs and risks of the potential for under and over investment by a regulated network service provider in, as the case requires, a distribution system or transmission system with which the operator provides direct control network services.

(7) Regard should be had to the economic costs and risks of the potential for under and over utilisation of a distribution system or transmission system with which a regulated network service provider provides direct control network services.

s 7A: Ins 2007 No 53, sec 8.

7B Innovative trial principles

7B Innovative trial principles

The following principles (the innovative trial principles) must be taken into account in determining whether a trial project is genuinely innovative in connection with granting a trial waiver or making a trial Rule relating to a trial project—

(a) whether the trial project is focused on developing new or materially improved approaches to the use or supply of, or demand for, electricity;

(b) whether the trial project is likely to contribute to the achievement of the national electricity objective;

(c) whether the trial project is able to demonstrate a reasonable prospect of giving rise to materially improved services and outcomes for consumers of electricity;

(d) whether the trial project maintains adequate consumer protections, including whether the trial project may involve risks to consumers and (if so), how those risks might be mitigated;

(e) whether the trial project is unable to proceed under the existing regulatory framework;

(f) whether the trial project has moved beyond research and development stages but is not yet established, or of sufficient maturity, size or otherwise commercially ready, to attract investment;

(g) whether the trial project may negatively impact AEMO's operation of the national electricity system and national electricity market and, if there are impacts, how those impacts can be mitigated;

(h) whether the trial project may impact on competition in a competitive sector of the national electricity market;

(i) any other principle prescribed by the Regulations.

s 7B: Ins 2022 No 22, sec 5.

8 MCE statements of policy principles

8 MCE statements of policy principles

(1) Subject to this section, the MCE may issue a statement of policy principles in relation to any matters that are relevant to the exercise and performance by the AEMC of its functions and powers in—

(a) making a Rule; or

(b) conducting a review under section 45.

(2) Before issuing a statement of policy principles, the MCE must be satisfied that the statement is consistent with the national electricity objective.

(3) As soon as practicable after issuing a statement of policy principles, the MCE must give a copy of the statement to the AEMC.

(4) The AEMC must publish the statement in the South Australian Government Gazette and on its website as soon as practicable after it is given a copy of the statement.

s 8: Am 2007 No 53, sec 9.

9 National Electricity Rules to have force of law

9 National Electricity Rules to have force of law

The National Electricity Rules have the force of law in this jurisdiction.

10 Application of this Law and Regulations to coastal waters of this jurisdiction

10 Application of this Law and Regulations to coastal waters of this jurisdiction

(1) This Law and the Regulations apply in the coastal waters of this jurisdiction.

Note—

The Rules apply in this jurisdiction by operation of this Law.

(2) In this section—

adjacent area has the same meaning as in the Petroleum (Submerged Lands) Act 1967 of the Commonwealth;

coastal waters of this jurisdiction means any sea that is on the landward side of the adjacent area of this jurisdiction but is not within the limits of this jurisdiction.

10A Corporations Act displacement

10A Corporations Act displacement

(1) The Regulations may declare a relevant provision to be a Corporations legislation displacement provision for the purposes of section 5G of the Corporations Act 2001 of the Commonwealth in relation to the provisions of Chapter 5 of that Act.

(2) In this section—

relevant provision means a provision of the Rules that relates to any of the following—

(a) the application by AEMO of money in any security deposit fund;

(b) the functions of AEMO under procedures relating to defaults by retailers;

(c) the application (or drawing on) of credit support held by a regulated distribution system operator in respect of a retailer who is the subject of a RoLR event within the meaning of Part 6 of the National Energy Retail Law.

s 10A: Ins 2011 No 7, sec 10.

Part 2 Participation in the National Electricity Market

Part 2 Participation in the National Electricity Market

Division 1 Registration

Division 1 Registration

pt 2, div 1, hdg: Ins 2007 No 53, sec 10.

11 Electricity market activities in this jurisdiction

11 Electricity market activities in this jurisdiction

(1) A person must not engage in the activity of owning, controlling or operating, in this jurisdiction, a generating system connected to the interconnected national electricity system or directly or indirectly connected to a regulated stand-alone power system unless—

(a) the person is a Registered participant in relation to that activity; or

(b) the person is the subject of a derogation that exempts the person, or is otherwise exempted by AEMO, from the requirement to be a Registered participant in relation to that activity under this Law and the Rules.

Note—

Subsection (1) is a civil penalty provision: See the definition of “civil penalty provision” in section 2AA(1).

(2) A person must not engage in the activity of owning, controlling or operating, in this jurisdiction, a transmission system or distribution system that forms part of the interconnected national electricity system or that forms part of, or is directly or indirectly connected to, a regulated stand-alone power system unless—

(a) the person is a Registered participant in relation to that activity; or

(b) the person is the subject of a derogation that exempts the person, or is otherwise exempted by the AER, from the requirement to be a Registered participant in relation to that activity under this Law and the Rules.

Note—

Subsection (2) is a civil penalty provision: See the definition of “civil penalty provision” in section 2AA(1).

(3) A person, other than AEMO, must not engage in the activity of operating or administering, in this jurisdiction, a wholesale exchange for electricity.

Note—

Subsection (3) is a civil penalty provision: See the definition of “civil penalty provision” in section 2AA(1).

(4) A person must not engage in, in this jurisdiction, the activity of purchasing electricity directly through a wholesale exchange unless—

(a) the person is a Registered participant in relation to that activity; or

(b) the person is the subject of a derogation that exempts the person, or is otherwise exempted by AEMO, from the requirement to be a Registered participant in relation to that activity under this Law and the Rules.

Note—

Subsection (4) is a civil penalty provision: See the definition of “civil penalty provision” in section 2AA(1).

s 11: Am 2007 No 53, sec 11; 2009 No 31, sec 8; 2011 No 7, sec 11; 2021 No 9, sec 6.

12 Registration or exemption of persons participating in national electricity market

12 Registration or exemption of persons participating in national electricity market

(1) A person engaged or proposing to engage in an activity referred to in section 11(1), (2) or (4) may request AEMO to register that person as a Registered participant in relation to that activity for the purposes of this Law and the Rules.

(2) A person engaged or proposing to engage in an activity referred to in section 11(1) or (4) may request AEMO to exempt that person from registering as a Registered participant in relation to that activity for the purposes of this Law and the Rules.

(3) A request under subsection (1) or (2) must be in accordance with the Rules.

(4) On receipt of a request under subsection (1) to be registered as a Registered participant, AEMO may, subject to the Rules, register the person in such categories of registration as are specified in the Rules.

(5) On receipt of a request under subsection (2) to be exempted from being registered as a Registered participant, AEMO may, subject to the Rules, grant the person the exemption.

(6) Registration as a Registered participant under subsection (4) or an exemption granted under subsection (5) may be subject to such terms and conditions as AEMO considers appropriate in accordance with the Rules.

s 12: Am 2009 No 31, sec 9.

13 Exemptions for transmission system or distribution system owners, controllers and operators

13 Exemptions for transmission system or distribution system owners, controllers and operators

(1) A person engaged or proposing to engage in the activity referred to in section 11(2) may request the AER to exempt that person from registering as a Registered participant in relation to that activity for the purposes of this Law and the Rules.

(2) A request under subsection (1) must be in accordance with the Rules.

(3) On receipt of a request under subsection (1), the AER may, subject to the Rules, grant the person the exemption.

(4) An exemption granted under subsection (3) may be subject to such terms and conditions as the AER considers appropriate in accordance with the Rules.

14 Evidence of registration or exemption

14 Evidence of registration or exemption

(1) A certificate signed by an authorised officer certifying that a person named in the certificate is a Registered participant, or has been granted an exemption from registration under section 12 or 13 is evidence of the registration or exemption.

Note—

A certificate may be in respect of a Registered participant registered in accordance with section 12 and the Rules, or in accordance with the Rules alone.

(2) In this section—

authorised officer means—

(a) for issuing a certificate that a person is a Registered participant or exempted from registration under section 12—AEMO’s CEO or a person authorised by AEMO’s CEO to issue certificates under this section; or

(b) for issuing a certificate that a person is exempted from registration under section 13—a member of the AER.

s 14: Subst 2009 No 31, sec 10.

Division 2 Regulated network service providers

Division 2 Regulated network service providers

pt 2, div 2: Ins 2007 No 53, sec 12.

14A Regulated transmission system operator must comply with transmission determination

14A Regulated transmission system operator must comply with transmission determination

A regulated transmission system operator must comply with a transmission determination that applies to the electricity network services provided by that operator.

Note—

Section 14A is a civil penalty provision: See the definition of civil penalty provision in section 2AA(1).

s 14A: Ins 2007 No 53, sec 12. Am 2011 No 7, sec 12.

14B Regulated distribution system operator must comply with distribution determination

14B Regulated distribution system operator must comply with distribution determination

A regulated distribution system operator must comply with a distribution determination that applies to the electricity network services provided by that operator.

Note—

Section 14B is a civil penalty provision: See the definition of civil penalty provision in section 2AA(1).

s 14B: Ins 2007 No 53, sec 12. Am 2011 No 7, sec 13.

Part 2A Retailer Reliability Obligation

Part 2A Retailer Reliability Obligation

pt 2A: Ins 2019 No 10, sec 7.

14C Definitions

14C Definitions

In this Part—

contract position day—see section 14K(4)(b)(i);

forecast reliability gap—see section 14G(1);

forecast reliability gap period—see section 14G(2);

Ministerial reliability gap and Ministerial reliability gap period—see section 14JA(1)(b);

net contract position—see section 14O(3);

one-in-two year peak demand forecast, for a region during a specified period, means the peak demand forecast in accordance with the Rules—

(a) to occur for the region during the period; and

(b) where the likelihood is that the forecast amount will be exceeded once in any two-year period;

peak demand, for a period in a region, means the maximum electricity demanded, in megawatts, in the region during the period, determined in accordance with the Rules;

region means a region of the national electricity market determined under the Rules;

reliability gap period, in relation to a T-1 reliability instrument, means the forecast reliability gap period stated in the instrument;

reliability instrument means a T-3 reliability instrument or a T-1 reliability instrument;

reporting day—see section 14K(4)(b)(ii);

T-1 cut off day—see section 14G(4);

T-1 reliability instrument means a reliability instrument for a forecast reliability gap made by the AER under section 14K that relates to the T-1 cut-off day for the forecast reliability gap;

T-3 cut off day—see section 14G(3);

T-3 reliability instrument means—

(a) a reliability instrument for a forecast reliability gap made by the AER under section 14K that relates to the T-3 cut-off day for the forecast reliability gap; or

(b) a reliability instrument for a Ministerial reliability gap period made by a Minister of a participating jurisdiction under section 14JA;

trading interval means a period prescribed by the Rules to be a trading interval for the wholesale exchange;

wholesale exchange means the wholesale exchange for electricity operated and administered by AEMO under this Law and the Rules.

s 14C: Ins 2019 No 10, sec 7. Am 2023 No 8, sec 5.

14D Meaning of liable entity for a region

14D Meaning of liable entity for a region

(1) Each of the following is a liable entity for a region—

(a) a person who is a Registered participant mentioned in section 11(4)(a);

(b) a person mentioned in section 11(4)(b) prescribed by the Rules to be a liable entity for the reliability obligations;

(c) another person who has elected, under section 14E, to assume responsibility for the reliability obligations of a person mentioned in paragraph (a).

(2) However, a person mentioned in subsection (1)(a) is not a liable entity for a region—

(a) if the person is a Registered participant mentioned in subsection (1)(a) who is prescribed by the Rules not to be a liable entity for the reliability obligations; or

(b) to the extent a person mentioned in subsection (1)(c) has elected to assume the person’s responsibility for the reliability obligations for the region.

s 14D: Ins 2019 No 10, sec 7.

14E Process for non-liable persons to opt in to reliability obligations

14E Process for non-liable persons to opt in to reliability obligations

(1) This section applies to a person—

(a) if—

(i) the person purchases electricity supplied in a region from a liable entity; and

(ii) the person’s annual consumption of electricity is more than the threshold prescribed by the Rules for this section; or

(b) prescribed by the Rules to be eligible to make an election under this section.

(2) The person may elect to assume all or some of the liable entity’s responsibility for the reliability obligations in relation to the electricity purchased for the period stated in the election.

(3) An election under subsection (2) must—

(a) state the extent to which the person has elected to assume the liable entity’s responsibility; and

(b) be made in the manner, form and timeframes required by the Rules.

s 14E: Ins 2019 No 10, sec 7.

14F Annual forecast for reliability gaps

14F Annual forecast for reliability gaps

Each year, AEMO must—

(a) perform the functions stated in the Rules for the purposes of forecasting for the occurrence of reliability gaps in future years; and

(b) prepare and publish, in the manner, form and timeframes required by the Rules, information about the forecasting.

s 14F: Ins 2019 No 10, sec 7.

14G Meaning of forecast reliability gap, forecast reliability gap period, T-3 cut off-day and T-1 cut-off day

14G Meaning of forecast reliability gap, forecast reliability gap period, T-3 cut off-day and T-1 cut-off day

(1) A forecast reliability gap occurs when the amount of electricity forecast for a region, in accordance with the Rules, does not meet the reliability standard to an extent that, in accordance with the Rules, is material and a reference in this Part to a forecast reliability gap includes, where the context requires, a reference to a Ministerial reliability gap.

(2) A forecast reliability gap period is the period during which a forecast reliability gap is forecast to occur and a reference in this Part to a forecast reliability gap period includes, where the context requires, a reference to a Ministerial reliability gap period.

(3) The T-3 cut-off day for a forecast reliability gap is the day that is 3 years before the day the forecast reliability gap period for the forecast reliability gap starts.

(4) The T-1 cut-off day for a forecast reliability gap is the day that is 1 year before the day the forecast reliability gap period for the forecast reliability gap starts.

(5) In this section—

reliability standard means the standard prescribed by the Rules for the reliability of electricity for the national electricity market.

s 14G: Ins 2019 No 10, sec 7. Am 2023 No 8, sec 6.

14H Rules must provide timetable for reliability forecasts, requests and instruments

14H Rules must provide timetable for reliability forecasts, requests and instruments

(1) The Rules must provide for timeframes for the following matters in relation to a forecast reliability gap—

(a) the period, that ends at least the stated number of days before the T-3 cut-off day and T-1 cut-off day, during which—

(i) AEMO must make a request under section 14I; and

(ii) the AER must decide whether to make a reliability instrument under section 14K;

(b) the period—

(i) ending on or before the T-1 cut-off day, during which the contract position day must be set; and

(ii) ending on or after the T-1 cut-off day, during which the reporting day must be set;

(c) the periods that apply for the matters mentioned in paragraph (a) or (b) if AEMO corrects a request under section 14J.

(2) Also, the Rules must provide for 1 or more ways to determine whether a request for the AER to make a T-1 reliability instrument under section 14I is related to a T-3 reliability instrument.

(3) For subsection (2), a prescribed way may include the extent to which the reliability gap period and trading intervals stated in a request for the AER to make a T-1 reliability instrument must be the same as, or may be different to, the forecast reliability gap period and trading intervals stated in the T-3 reliability instrument.

(4) In addition, for subsection (2), in the case of a T-3 reliability instrument made by a Minister of a participating jurisdiction, a prescribed way may include the extent to which the reliability gap period and trading intervals stated in a request for the AER to make a T-1 reliability instrument must be the same as, or may be different to, any Ministerial reliability gap period or trading intervals stated in the T-3 reliability instrument.

s 14H: Ins 2019 No 10, sec 7. Am 2023 No 8, sec 7.

14I AEMO must request reliability instrument

14I AEMO must request reliability instrument

(1) This section applies if—

(a) AEMO is satisfied a forecast reliability gap is forecast to occur in a region; and

(b) AEMO has published the information about the forecast that AEMO is required to publish under section 14F(b).

(2) Subject to subsection (3), AEMO must request the AER to consider making a reliability instrument for the region in relation to the forecast reliability gap.

(3) AEMO must make a request under subsection (2) for a T-1 reliability instrument for a region only if the AER has made a related T-3 reliability instrument or the Minister of the participating jurisdiction in which the region is located has made a related T-3 reliability instrument.

(4) A request under subsection (2)—

(a) is made by giving a written notice about the request to the AER; and

(b) must be made within the period required by the Rules; and

(c) must state the following information about the forecast reliability gap—

(i) the region in which the forecast reliability gap is forecast to occur;

(ii) the first and last days of the forecast reliability gap period;

(iii) for a request for a T-3 reliability instrument—the trading intervals, during the forecast reliability gap period, for which liable entities may be required to hold net contract positions that are sufficient to meet their share of the one-in-two year peak demand forecast for the forecast reliability gap period;

Example—

The trading intervals between 4pm and 8pm each weekday during the forecast reliability gap.

(iv) for a request for a T-1 reliability instrument—the trading intervals, during the forecast reliability gap period, for which liable entities will be required to hold net contract positions that are sufficient to meet their share of the one-in-two year peak demand forecast for the forecast reliability gap period if the T-1 reliability instrument is made;

Example

The trading intervals between 4pm and 8pm each weekday during the forecast reliability gap.

(v) AEMO’s one-in-two year peak demand forecast for the forecast reliability gap period.

(5) A request under subsection (2)—

(a) may only apply to 1 forecast reliability gap period; and

(b) may be made on more than 1 occasion in a year for different forecast reliability gap periods in the same region or in different regions.

s 14I: Ins 2019 No 10, sec 7. Am 2023 No 8, sec 8.

14J AEMO may correct request for reliability instrument

14J AEMO may correct request for reliability instrument

(1) This section applies if a request under section 14I contains—

(a) a material miscalculation of figures; or

(b) a material mistake in the description of a person, period, thing or matter referred to in the request; or

(c) a defect in form.

(2) AEMO may correct the request by giving a written notice about the correction, and a correct request, to the AER.

s 14J: Ins 2019 No 10, sec 7.

14JA Minister may make T-3 reliability instrument

14JA Minister may make T-3 reliability instrument

(1) Subject to this section, a Minister of a participating jurisdiction may make a T-3 reliability instrument for a region if—

(a) the geographical area of the participating jurisdiction constitutes the whole or a part of the region; and

(b) it appears to the Minister, on reasonable grounds, that there is a real risk during a period specified in the instrument (a Ministerial reliability gap period) that the supply of electricity to all or part of the region may be disrupted to a significant degree (a Ministerial reliability gap) on 1 or more occasions during the Ministerial reliability gap period.

(2) Before making a T-3 reliability instrument under subsection (1), the Minister must consult with AEMO and the AER in relation to the instrument the Minister proposes to make.

(3) The regulations under the application Act of a participating jurisdiction (a local regulation) may provide for requirements (including procedures and any methodology) that must be complied with by the Minister in determining whether there is a real risk that the supply of electricity to all or part of a region may be disrupted to a significant degree.

(4) A T-3 reliability instrument under subsection (1) must state—

(a) the date on which it takes effect; and

(b) the region to which it applies; and

(c) the first and last days of the Ministerial reliability gap period; and

(d) the trading intervals during the Ministerial reliability gap period for which liable entities may be required to hold net contract positions that are sufficient to meet their share of the one-in-two year peak demand forecast for the Ministerial reliability gap period; and

(e) AEMO’s one-in-two year peak demand forecast for the Ministerial reliability gap period.

(5) A Minister of a participating jurisdiction may vary or revoke a T-3 reliability instrument made by the Minister under subsection (1).

(6) As soon as practicable after making or varying a T-3 reliability instrument under this section, the relevant Minister must—

(a) publish a copy of the instrument or variation in accordance with any requirements of the local regulations; and

(b) publish notice of the making or variation of the instrument in the South Australian Government Gazette.

(7) The following provisions apply to a T-3 reliability instrument under subsection (1)—

(a) the first day of a Ministerial reliability gap period specified in the instrument under subsection (4)(c) may not be earlier than 3 years after the day on which the instrument is made;

(b) despite any other provision of this Part, a T-3 reliability instrument under subsection (1) that relates to 1 or more days occurring in the period commencing on 1 December 2025 and ending on 31 December 2026 may be made at any time before 1 December 2023.

(8) The Minister responsible for administering the application Act (other than the application Act of South Australia) under which a local regulation referred to in this section is made is to make arrangements for notice of the making and publication of the regulation to be published for information in the South Australian Government Gazette.

s 14JA: Ins 2023 No 8, sec 9.

14K AER may make reliability instrument for a region

14K AER may make reliability instrument for a region

(1) This section applies if—

(a) AEMO makes a request under section 14I in relation to a forecast reliability gap for a region; and

(b) where AEMO’s request is for a T-1 reliability instrument for the region, the AER has made a related T-3 reliability instrument or the Minister of the participating jurisdiction in which the region is located has made a related T-3 reliability instrument for the region.

(2) The AER must, within the period required by the Rules—

(a) consider the request; and

(b) decide whether or not to make a reliability instrument for the region in relation to the forecast reliability gap.

(3) The AER may decide to make a reliability instrument only—

(a) if the AER is satisfied—

(i) a forecast reliability gap is forecast, in accordance with the Rules, to occur in the region; and

(ii) it is appropriate in the circumstances, having regard to the criteria stated in the Rules, to make the reliability instrument; and

(b) for the region, forecast reliability gap period and trading intervals as stated in AEMO’s request, without modification.

(4) A reliability instrument must state—

(a) the information mentioned in section 14I(4)(c), as stated in AEMO’s request; and

(b) for a T-1 reliability instrument—

(i) the day (the contract position day) on which liable entities are required under section 14R to hold a sufficient net contract position for the reliability gap period; and

(ii) the day (the reporting day) on which liable entities must report their net contract position as at the contract position day under section 14P.

(5) The reliability instrument takes effect when it is published on the AER’s website.

(6) The AER must publish its decision to make or refuse to make a reliability instrument, and the reasons for the decision, on the AER’s website before—

(a) in the case of a T-3 reliability instrument—the T-3 cut-off day or an earlier day prescribed by the Rules; or

(b) in the case of a T-1 reliability instrument—the T-1 cut-off day or an earlier day prescribed by the Rules.

(7) If a request made under section 14I was corrected under section 14J, a reference in this section to the request is a reference to the request as corrected.

s 14K: Ins 2019 No 10, sec 7. Am 2023 No 8, sec 10.

14L Reliability instrument has force of law

14L Reliability instrument has force of law

(1) A reliability instrument has the force of law in this jurisdiction.

(2) An Act of this jurisdiction regulating the making of subordinate legislation does not apply to a reliability instrument.

s 14L: Ins 2019 No 10, sec 7.

14M Failure to comply with consultation obligation does not affect validity

14M Failure to comply with consultation obligation does not affect validity

(1) This section applies if the Rules require the AER to undertake stated consultation before making a reliability instrument under section 14K.

(2) Failure to comply with the obligation does not invalidate or otherwise affect a reliability instrument.

s 14M: Ins 2019 No 10, sec 7.

Division 3 Reliability obligations

Division 3 Reliability obligations

pt 2A, div 3: Ins 2019 No 10, sec 7.

14N Application of Division

14N Application of Division

(1) This Division applies to a person if—

(a) the AER made a T-1 reliability instrument for a forecast reliability gap in a region; and

(b) the person is a liable entity for the region to which the instrument applies; and

(c) the person is a liable entity on—

(i) the contract position day; or

(ii) in circumstances for which a later day is prescribed by the Rules—the later day.

(2) In this Division—

(a) a reference to a matter is a reference to the matter for the region to which the T-1 reliability instrument applies; and

(b) a reference to the reliability gap period is a reference to the forecast reliability gap period stated in the T-1 reliability instrument; and

(c) a reference to the stated trading intervals is a reference to the trading intervals stated in the T-1 reliability instrument; and

(d) a reference to the contract position day or the reporting day is a reference to the contract position day or reporting day stated in the T-1 reliability instrument.

s 14N: Ins 2019 No 10, sec 7.

14O Meaning of qualifying contract and net contract position

14O Meaning of qualifying contract and net contract position

(1) A qualifying contract of a liable entity is a contract or other arrangement to which the liable entity is a party—

(a) that—

(i) is directly related to the purchase or sale, or price for the purchase or sale, of electricity from the wholesale exchange during a stated period; and

(ii) the liable entity entered into to manage its exposure in relation to the volatility of the spot price; or

(b) of another type prescribed by the Rules to be a qualifying contract.

(2) However, a qualifying contract does not include a contract or arrangement mentioned in subsection (1)(a) that is prescribed by the Rules to be an excluded contract for the reliability obligations.

(3) A liable entity’s net contract position during a particular period is—

(a) the number of megawatts of electricity to which the liable entity’s qualifying contracts under subsection (1) relate for the period; and

(b) adjusted in accordance with the Rules to account for the likelihood that, despite the qualifying contracts, the liable entity retains exposure in relation to the volatility of the spot price during the period.

(4) In this section—

spot price means the price for electricity purchased from the wholesale exchange in a region determined in accordance with the Rules.

s 14O: Ins 2019 No 10, sec 7.

14P Obligation to report net contract position

14P Obligation to report net contract position

(1) The liable entity must give the AER a report about the liable entity’s net contract position for the stated trading intervals during the reliability gap period as at the contract position day—

(a) that complies with subsection (2); and

(b) on or before the reporting day stated in the T-1 reliability instrument.

Note—

Subsection (1) is a civil penalty provision: See the definition of “civil penalty provision” in section 2AA(1).

(2) The report must—

(a) include the information required under the Rules; and

(b) be prepared and given in the manner and form required by the Rules.

(3) The liable entity must not provide information in a report the liable entity knows is false or misleading in a material particular.

Note—

Subsection (3) is a civil penalty provision: See the definition of “civil penalty provision” in section 2AA(1).

s 14P: Ins 2019 No 10, sec 7.

14Q Adjustment of net contract position after contract position day

14Q Adjustment of net contract position after contract position day

A liable entity may adjust the liable entity’s net contract position for a stated trading interval during a reliability gap period after the contract position day for the purposes of sections 14R and 14S in accordance with the Rules.

s 14Q: Ins 2019 No 10, sec 7.

14R Obligation to have contracted sufficiently for one-in-two year peak demand forecast

14R Obligation to have contracted sufficiently for one-in-two year peak demand forecast

(1) This section applies if the peak demand is more than the one-in-two year peak demand forecast for the reliability gap period during a stated trading interval in the reliability gap period.

(2) The liable entity must comply with the obligation that the liable entity’s net contract position for the trading interval is not less than the liable entity’s share of the one-in-two year peak demand forecast for the trading interval determined in accordance with the Rules.

Note—

Subsection (2) is a reliability obligation civil penalty provision: See the definition of “reliability obligation civil penalty provision” in section 2AA(1a).

(3) For subsection (2), the liable entity’s net contract position for a trading interval is—

(a) if the liable entity has adjusted its net contract position under the Rules—the liable entity’s net contract position for the trading interval as at the day provided under the Rules; or

(b) otherwise—the liable entity’s net contract position for the trading interval as at the contract position day.

s 14R: Ins 2019 No 10, sec 7.

14S Obligation to maintain net contract position

14S Obligation to maintain net contract position

The Rules may require a liable entity to maintain its net contract position for the stated trading intervals in the reliability gap period during the period that—

(a) starts on the contract position day; and

(b) ends when the reliability gap period ends.

s 14S: Ins 2019 No 10, sec 7.

Division 4 AEMO as procurer of last resort

Division 4 AEMO as procurer of last resort

pt 2A, div 4: Ins 2019 No 10, sec 7.

14T AEMO may recover costs for procurer of last resort function

14T AEMO may recover costs for procurer of last resort function

(1) The Rules may provide for a cost recovery scheme that allows AEMO to recover the costs AEMO incurs as the procurer of last resort for a region.

(2) AEMO is the procurer of last resort for a region if—

(a) a T-1 reliability instrument is made for a forecast reliability gap in a region; and

(b) AEMO performs its function under the Rules of entering into contracts to secure the availability of electricity reserves in relation to the reliability gap period stated in the instrument in the region.

(3) The cost recovery scheme under the Rules may provide for AEMO to recover the costs from the liable entities for the region who breach section 14R(2) or an obligation under the Rules mentioned in section 14S during the reliability gap period.

(4) However, a liable entity is not liable to more than $100 000 000 under the cost recovery scheme in relation to a reliability gap period in a region.

s 14T: Ins 2019 No 10, sec 7.

Part 3 Functions and powers of the Australian Energy Regulator

Part 3 Functions and powers of the Australian Energy Regulator

15 Functions and powers of AER

15 Functions and powers of AER

(1) The AER has the following functions and powers—

(a) to monitor compliance by—

(i) Registered participants and other persons with this Law, the Regulations and the Rules; and

(ii) regulated network service providers with network revenue or pricing determinations; and

(iii) AEMO with this Law, the Rules, the Regulations or a transmission determination; and

(b) to investigate breaches or possible breaches of provisions of this Law, the Regulations or the Rules, including offences against this Law; and

(ba) without limiting paragraphs (a) and (b), in relation to a person undertaking a trial project under a trial Rule or trial waiver, to monitor the conduct and outcomes of the trial project and investigate breaches or possible breaches by the person of—

(i) this Law, the Regulations and the Rules; and

(ii) in particular—

(A) in the case of a person undertaking a trial project under a trial Rule—the trial Rule and any requirements imposed by the AEMC under section 104B; and

(B) in the case of a person undertaking a trial project under a trial waiver—the trial waiver and any conditions to which the trial waiver is subject; and

(c) to institute and conduct proceedings—

(i) against persons under section 61 of this Law or section 44AAG of the Competition and Consumer Act 2010 of the Commonwealth; or

(ii) in respect of Registered participants under section 63 of this Law; or

(iii) against persons under section 68 of this Law; or

(iv) in relation to offences against this Law; and

(d) to institute and conduct appeals from decisions in proceedings referred to in paragraph (c); and

(e) to exempt persons proposing to engage, or engaged, in the activity of owning, controlling or operating a transmission system or distribution system from being registered as Registered participants; and

(ea) to prepare and publish reports on the financial and operational performance of network service providers in providing electricity network services; and

(eb) to approve compliance programs of service providers relating to compliance by service providers with this Law or the Rules; and

(eba) to implement and administer the market liquidity obligation in accordance with the Rules; and

(ec) AER wholesale market monitoring functions and AER wholesale market reporting functions; and

(ed) to make a rate of return instrument; and

(f) AER economic regulatory functions or powers; and

(fa) AER trial waiver functions; and

(g) any other functions and powers conferred on it under this Law and the Rules.

(2) The AER has the power to do all things necessary or convenient to be done for or in connection with the performance of its functions.

(3) However, the AER—

(a) cannot make a transmission determination—

(i) regulating the revenue AEMO earns or may earn; or

(ii) regulating the price of electricity network services provided by AEMO unless the services are shared transmission services provided by means of, or in connection with, a declared shared network; and

(b) cannot regulate by transmission determination or in any other way the price of any other service provided by AEMO, or the amount of any other charge made by AEMO.

s 15: Am 2007 No 53, sec 13; 2009 No 31, sec 11; 2011 No 7, sec 14; 2016 No 56, sec 5; 2018 No 33, sec 5; 2019 No 10, sec 8; 2021 No 9, sec 7; 2022 No 22, sec 6.

16 Manner in which AER performs AER economic regulatory functions or powers

16 Manner in which AER performs AER economic regulatory functions or powers

(1) The AER must, in performing or exercising an AER economic regulatory function or power—

(a) perform or exercise that function or power in a manner that will or is likely to contribute to the achievement of the national electricity objective; and

(b) if the function or power performed or exercised by the AER relates to the making of a distribution determination or transmission determination, ensure that—

(i) the regulated network service provider to whom the determination will apply; and

(ii) any affected Registered participant; and

(iii) if AEMO is affected by the determination—AEMO; and

(iv) network service users or prospective network service users of the relevant services that the AER considers have an interest in the determination; and

(v) any user or consumer associations or user or consumer interest groups that the AER considers have an interest in the determination,

are, in accordance with the Rules—

(vi) informed of material issues under consideration by the AER; and

(vii) given a reasonable opportunity to make submissions in respect of the determination before it is made; and

(c) in relation to making a relevant regulatory decision, specify—

(i) the manner in which the constituent components of the decision relate to each other; and

(ii) the manner in which that interrelationship has been taken into account in the making of the relevant regulatory decision; and

(d) (Repealed)

(2) In addition, the AER—

(a) must take into account the revenue and pricing principles—

(i) when exercising a discretion in making those parts of a distribution determination or transmission determination relating to direct control network services; or

(ii) when making an access determination relating to a rate or charge for an electricity network service; and

(b) may take into account the revenue and pricing principles when performing or exercising any other AER economic regulatory function or power, if the AER considers it appropriate to do so.

(3) For the purposes of subsection (2)(a)(ii), a reference to a “direct control network service” in the revenue and pricing principles must be read as a reference to an “electricity network service”.

(4) In this section—

affected Registered participant means a Registered participant (other than the regulated network service provider to whom the distribution determination or transmission determination will apply) whose interests are affected by the distribution determination or transmission determination.

user or consumer association means an association or body (whether incorporated or unincorporated)—

(a) the members of which include more than 1 user, prospective user or end user; and

(b) that represents and promotes the interests of those members in relation to the provision of electricity services;

user or consumer interest group means an association or body (whether incorporated or unincorporated)—

(a) that has, as an object or purpose, the object or purpose of representing and promoting the interests of users, prospective users or end users of electricity services; but

(b) the members of which need not include a user, prospective user or end user.

s 16: Subst 2007 No 53, sec 14. Am 2009 No 31, sec 12; 2011 No 7, sec 15; 2013 No 79, sec 5; 2021 No 3, sec 8; 2022 No 21, sec 5.

17 Delegations

17 Delegations

Any delegation by the AER under section 44AAH of the Competition and Consumer Act 2010 of the Commonwealth extends to, and has effect for the purposes of, this Law, the Regulations and the Rules.

18 Confidentiality

18 Confidentiality

Section 44AAF of the Competition and Consumer Act 2010 of the Commonwealth has effect for the purposes of this Law, the Regulations and the Rules as if it formed part of this Law.

Note—

See also Division 6.

s 18: Subst 2007 No 53, sec 15.

Division 1A Wholesale electricity markets—AER monitoring and reporting functions

Division 1A Wholesale electricity markets—AER monitoring and reporting functions

pt 3, div 1A: Ins 2016 No 56, sec 6.

pt.3-div.1A-sdiv.1 Preliminary

Subdivision 1 Preliminary

pt 3, div 1A, sdiv 1, hdg: Ins 2024 No 12, sec 5.

18A Definitions

18A Definitions

In this Division—

effective competition—see section 18B;

electricity contract means an agreement, entered into by a Registered participant, however described and whether coming into existence before or after the commencement of this section, that relates to a wholesale electricity market and includes an agreement—

(a) to supply electricity; or

(b) to purchase electricity; or

(c) for the transmission, distribution or storage of electricity; or

(d) relating to fuel and other inputs used in the generation of electricity; or

(e) relating to emissions produced or avoided in the generation of electricity; or

(f) to supply a wholesale demand response service;

financial risk management product means a contract or other arrangement, entered into by a Registered participant, to manage financial risk including, without limitation, risks associated with the following—

(a) price volatility in a wholesale electricity market;

(b) volatility in supply and demand in a wholesale electricity market;

(c) volatility in the price of fuels and other inputs used in the generation of electricity;

monitored market means—

(a) a wholesale electricity market; and

(b) a market for financial risk management products; and

(c) a market prescribed by the Regulations;

relevant agreement means—

(a) an electricity contract; and

(b) a financial risk management product.

s 18A: Ins 2016 No 56, sec 6. Am 2024 No 12, sec 6.

18B Meaning of effective competition

18B Meaning of effective competition

For the purposes of this Division, the AER must, in assessing whether there is effective competition within a monitored market, have regard to—

(a) whether there are active competitors in the market and whether those competitors hold a reasonably sustainable position in the market (or whether there is merely the threat of competition in the market); and

(b) whether prices are determined on a long term basis by underlying costs rather than the existence of market power, even though a particular competitor may hold a substantial degree of market power from time to time; and

(c) whether barriers to entry into the market are sufficiently low so that a substantial degree of market power may only be held by a particular competitor on a temporary basis; and

(d) whether there is independent rivalry in all dimensions of the price, product or service offered in the market; and

(e) any other matters that the AER considers relevant.

s 18B: Ins 2016 No 56, sec 6. Am 2024 No 12, sec 7.

18C AER wholesale market monitoring and reporting functions

18C AER wholesale market monitoring and reporting functions

(1) The AER wholesale market monitoring functions are as follows—

(a) to, in accordance with this Law and the Rules, regularly and systematically monitor and review the performance of monitored markets;

(b) in connection with paragraph (a), to identify and analyse whether, in relation to a particular monitored market—

(i) there is effective competition within the market; and

(ii) there are features of the market that may be detrimental to effective competition within the market; and

(iii) there are features of the market that may be impacting detrimentally on the efficient functioning of the market (and, if so, to assess the extent of the inefficiency); and

(iv) there are features of the market that may be impacting detrimentally on the achievement of the national electricity objective;

(c) other monitoring or analysing functions, conferred on the AER by the Rules, relating to the following matters within a monitored market—

(i) offers;

(ii) prices, including forecast and actual prices and bidding.

(2) The AER wholesale market reporting functions are as follows—

(a) to prepare, at least once every 2 years, a report on the results of the performance of the AER wholesale market monitoring functions;

(b) to provide, as the AER thinks fit, advice on the results of the performance of the AER wholesale market monitoring functions to the MCE, including advice as to—

(i) the AER’s opinion (and reasons for the opinion) on whether those results identify, in relation to a monitored market, features of the market (whether systemic or otherwise) that—

(A) may be detrimental to effective competition within the market; or

(B) may be impacting detrimentally on the efficient functioning of the market,

such that a legislative, regulatory or other response is required; and

(ii) any limitations that the AER considers may restrict its ability to communicate with relevant persons about the results of the performance of the AER wholesale market monitoring functions;

(c) other reporting requirements that relate to the AER wholesale market monitoring functions conferred on the AER by the Rules.

(3) A report prepared under subsection (2)(a) must, in relation to a monitored market monitored during the period to which the report relates (which must be a period of at least 5 years), contain a discussion and analysis of—

(a) the results of the performance of the AER wholesale market monitoring functions for the relevant period; and

(b) features of the market that impact detrimentally on the efficient functioning of the market and the achievement of the national electricity objective, including (but not limited to)—

(i) the presence of significant barriers to entry; or

(ii) any other features of the industry structure that give rise to concerns that there may not be effective competition within the market; and

(c) inefficiencies in the market, their causes and whether conditions in the market are such that the inefficiencies are likely to impact detrimentally in the long term on the efficient functioning of the market; and

(d) the monitoring methodology applied and the results of indicators, tests and calculations performed; and

(e) other matters of a long term nature relevant to effective competition within the market, including, for example, observations relating to planned increases in interconnector capacity and trends in demand for electricity and in the uptake of alternative sources of energy.

(4) The AER must publish a report prepared under subsection (2)(a) on its website.

(5) Before publishing a report prepared under subsection (2)(a) the AER must consult with relevant stakeholders.

s 18C: Ins 2016 No 56, sec 6. Am 2024 No 12, sec 8.

18D Information to be treated as confidential

18D Information to be treated as confidential

Information obtained by the AER under this Division is taken to have been given to the AER in confidence, whether or not a claim of confidentiality is made.

s 18D: Ins 2016 No 56, sec 6. Subst 2024 No 12, sec 9.

18E Redaction of information

18E Redaction of information

(1) When obtaining a relevant agreement or information about a relevant agreement for the purposes of a function under this Division, the AER must consider a request to omit information that would identify a party to the agreement who is not a Registered participant.

(2) The AER must grant the request unless satisfied that omitting the information is likely to materially affect the AER’s ability to undertake 1 or more functions under this Division.

s 18E: Ins 2016 No 56, sec 6. Subst 2024 No 12, sec 9.

pt.3-div.1A-sdiv.2 Use of general information gathering powers

Subdivision 2 Use of general information gathering powers

pt 3, div 1A, sdiv 2: Ins 2024 No 12, sec 10.

18EA Limits on use of section 28 information gathering powers

18EA Limits on use of section 28 information gathering powers

(1) In undertaking a function under this Division the AER must not use the powers under section 28 in respect of a relevant agreement that ceased to have effect more than 5 years before the commencement of this section.

(2) The Regulations or the Rules may provide that the powers under section 28 must not be used for a function under this Division for 1 or more classes of relevant agreement.

s 18EA: Ins 2024 No 12, sec 10.

18EB Matters to be considered before using section 28 information gathering powers

18EB Matters to be considered before using section 28 information gathering powers

Before using the powers under section 28 for a function under this Division, the AER must—

(a) be satisfied the information is reasonably required for the AER to carry out the function; and

(b) consider whether the information—

(i) is publicly available; or

(ii) can be obtained by the AER in another way.

s 18EB: Ins 2024 No 12, sec 10.

pt.3-div.1A-sdiv.3 Market monitoring information notices and market monitoring information orders

Subdivision 3 Market monitoring information notices and market monitoring information orders

pt 3, div 1A, sdiv 3: Ins 2024 No 12, sec 10.

18EC Definitions

18EC Definitions

In this Subdivision—

market monitoring information notice means a notice prepared and served by the AER in accordance with this Subdivision requiring the person named in the notice to do 1 or more of the following—

(a) give the AER the information or a relevant agreement specified in the notice;

(b) prepare, maintain and keep information specified in the notice in a manner and form specified in the notice;

market monitoring information order means an order made by the AER in accordance with this Subdivision requiring each person of a class specified in the order to do 1 or more of the following—

(a) give the AER the information or a relevant agreement specified in the order;

(b) prepare, maintain and keep information specified in the order in a manner and form specified in the order.

s 18EC: Ins 2024 No 12, sec 10.

18ED Urgent notices and urgent orders

18ED Urgent notices and urgent orders

The AER may specify a market monitoring information notice or a market monitoring information order as urgent if the AER reasonably believes that access to the relevant information is time critical.

s 18ED: Ins 2024 No 12, sec 10.

18EE Content of notices and orders

18EE Content of notices and orders

(1) A market monitoring information notice or a market monitoring information order must specify the following—

(a) the information that must be prepared, maintained and kept;

(b) the information or agreement that must be given to the AER;

(c) if the notice or order requires information to be prepared, maintained and kept—the AER’s reasons for requiring information to be prepared, maintained and kept;

(d) if the notice or order requires information or an agreement to be given to the AER—

(i) the reasons the AER requires the information or agreement; and

(ii) the date by which the information or agreement must be given to the AER;

(e) the period in which the notice or order operates.

(2) A market monitoring information notice or a market monitoring information order may specify the following—

(a) the form in which information or an agreement is to be given to the AER;

(b) the way the information or agreement is to be given to the AER.

s 18EE: Ins 2024 No 12, sec 10.

18EF Notices and orders may be made for both past and future information

18EF Notices and orders may be made for both past and future information

(1) A market monitoring information notice or a market monitoring information order may apply to 1 or more of the following—

(a) a period before the notice was served or the order was made;

(b) a period after the notice was served or the order was made.

(2) A market monitoring information notice or a market monitoring information order must not be used to obtain a relevant agreement, or information about a relevant agreement, that ceased to have effect more than 5 years before the commencement of this section.

s 18EF: Ins 2024 No 12, sec 10.

18EG Making and serving notices and orders

18EG Making and serving notices and orders

(1) The AER may, if it considers it reasonably necessary for the performance of its functions under this Division—

(a) serve a market monitoring information notice on a person named in the notice; and

(b) make a market monitoring information order.

(2) The AER must, when considering if it is reasonably necessary to serve a market monitoring information notice or make a market monitoring information order—

(a) be satisfied the AER requires the information or agreement to carry out a wholesale market monitoring function; and

(b) consider the costs that are likely to be incurred by a person responding to the notice or order; and

(c) consider whether the information—

(i) is publicly available; or

(ii) can be obtained by the AER in another way.

(3) A market monitoring information notice or a market monitoring information order must not be used for the purpose of—

(a) investigating a breach or possible breach of this Law, the Regulations or the Rules; or

(b) commencing or conducting proceedings for a breach or possible breach of this Law, the Regulations or the Rules; or

(c) commencing or conducting an appeal from a decision in proceedings for a breach or possible breach of this Law, the Regulations or the Rules; or

(d) responding to an application for review of a decision of the AER under Part 6 Division 3A.

(4) A market monitoring information order must be made in accordance with the Rules.

(5) The Regulations or the Rules may provide that a market monitoring information notice or a market monitoring information order must not be used to obtain the following—

(a) 1 or more classes of relevant agreement;

(b) information about 1 or more classes of relevant agreement.

s 18EG: Ins 2024 No 12, sec 10.

18EH AER must consult before making order

18EH AER must consult before making order

(1) Before making a market monitoring information order, the AER must consult the public.

(2) Consultation must be undertaken in accordance with the Rules.

s 18EH: Ins 2024 No 12, sec 10.

18EI Publication of orders

18EI Publication of orders

The AER must publish a market monitoring information order on the AER’s website as soon as practicable after the order is made.

s 18EI: Ins 2024 No 12, sec 10.

18EJ Opportunity to be heard before notice served

18EJ Opportunity to be heard before notice served

(1) Before serving a market monitoring information notice, the AER must give the person on whom the AER intends to serve the notice a draft of the notice and an opportunity to make a submission on the draft notice.

(2) A draft notice must state—

(a) whether the notice is to be issued as a standard notice or an urgent notice; and

(b) for an urgent notice—the reasons the AER believes access to the relevant information is time critical.

(3) A submission must be made—

(a) for a standard notice—within the longer of the following—

(i) 20 business days after the draft notice is given to the person;

(ii) the period stated in the notice; or

(b) for an urgent notice—within the period stated in the draft notice, being at least 5 business days and not more than 10 business days after the draft notice is given to the person.

(4) A submission made within the time periods provided for in subsection (3) must be considered by the AER before serving a market monitoring information notice on a person.

s 18EJ: Ins 2024 No 12, sec 10.

18EK Compliance with notice

18EK Compliance with notice

(1) A person who is named in and served with a market monitoring information notice must comply with the notice.

Note—

This section is a civil penalty provision.

(2) If a market monitoring information notice names 2 or more related bodies corporate, a notice served on the holding company is taken to have been served on each of the named related bodies corporate.

s 18EK: Ins 2024 No 12, sec 10.

18EL Compliance with order

18EL Compliance with order

(1) A person who is a member of a class of persons specified in a market monitoring information order must comply with the order.

Note—

This section is a civil penalty provision.

(2) The AER may, by written notice, exempt a person from compliance with an order—

(a) in whole or part; and

(b) conditionally or unconditionally.

s 18EL: Ins 2024 No 12, sec 10.

18EM Certification of compliance by statutory declaration

18EM Certification of compliance by statutory declaration

(1) The AER may direct the recipient of a market monitoring information notice or market monitoring information order to verify that the recipient’s response to the notice or order is accurate and comprehensive by way of a statutory declaration.

(2) A direction may require the statutory declaration to be given by a named officer of the recipient or the holder of a specified office for the recipient.

(3) A direction must be given in the relevant market monitoring information notice or market monitoring information order.

(4) A failure to comply with a direction given under this section is taken to be a failure to comply with the relevant market monitoring information notice or market monitoring information order.

s 18EM: Ins 2024 No 12, sec 10.

18EN Subdivision does not limit powers under Division 3

18EN Subdivision does not limit powers under Division 3

This Subdivision does not limit the operation of Division 3.

s 18EN: Ins 2024 No 12, sec 10.

pt.3-div.1A-sdiv.4 Miscellaneous

Subdivision 4 Miscellaneous

pt 3, div 1A, sdiv 4: Ins 2024 No 12, sec 10.

18EO Wholesale market monitoring guidelines

18EO Wholesale market monitoring guidelines

(1) The AER must prepare guidelines (wholesale market monitoring guidelines) about the following—

(a) the scope of the AER wholesale market monitoring functions;

(b) the collection of information for the purposes of this Division;

(c) the publication and reporting of information under this Division.

(2) Without limiting what may be included in wholesale market monitoring guidelines, the guidelines must include the following—

(a) information about the things the AER proposes to consider in assessing—

(i) competition in markets; and

(ii) the effective functioning of markets;

(b) a summary of the compliance obligations of persons who hold information;

(c) the processes the AER proposes to adopt in requesting information, including processes designed to minimise the time and resources Registered participants will devote to responding to a request;

(d) the type of information the AER expects to routinely request and how frequently it will request that information;

(e) the type of information the AER does not expect to request;

(f) classes of relevant agreements the AER does not expect to request;

(g) the formats in which the AER expects information to be submitted;

(h) a general outline of the way the AER will ensure that commercially sensitive information obtained for wholesale market monitoring functions is kept securely;

(i) other matters prescribed by the Regulations or the Rules.

(3) Before making wholesale market monitoring guidelines the AER must consult in accordance with the Rules.

(4) Wholesale market monitoring guidelines must be—

(a) made in accordance with the Rules; and

(b) published on the AER website within 6 months after commencement of this section.

s 18EO: Ins 2024 No 12, sec 10.

18EP Review of wholesale market monitoring powers

18EP Review of wholesale market monitoring powers

The MCE is to review the operation of this Division as soon as possible after the period of 4 years and 6 months after the commencement of this section.

s 18EP: Ins 2024 No 12, sec 10.

Division 1B Rate of return instrument

Division 1B Rate of return instrument

pt.3-div.1B-sdiv.1 Preliminary

Subdivision 1 Preliminary

pt 3, div 1B, sdivs 1–5 (ss 18F–18Y): Ins 2018 No 33, sec 6.

18F Definitions

18F Definitions

In this Division—

consumer reference group, for making a rate of return instrument, see section 18M(1)(a);

explanatory information, for a rate of return instrument, means information about the content of the instrument, including (but not limited to) information explaining—

(a) the reasons for the rate of return on capital or the value of imputation credits under the instrument; and

(b) how the stated value, or the way to calculate the rate or value, was decided; and

(c) if the instrument replaces another instrument—

(i) the differences (if any) between the instrument and the replaced instrument; and

(ii) the reasons for any differences; and

(d) why the AER is satisfied the instrument will, or is most likely to, contribute to the achievement of the national electricity objective to the greatest degree; and

(e) how the AER had regard to the following in making the instrument—

(i) the revenue and pricing principles;

(ii) the matters mentioned in section 18L;

(iii) estimation methods, financial models, market data and other evidence relevant to making the instrument;

(iv) prevailing conditions in the market for equity funds;

(v) the interrelationships between financial parameters used, or to be used, in relation to deciding the rate or value.

pt 3, div 1B, sdivs 1–5 (ss 18F–18Y): Ins 2018 No 33, sec 6.

18G Rate of return instrument has force of law

18G Rate of return instrument has force of law

(1) A rate of return instrument has the force of law in this jurisdiction.

(2) An Act of this jurisdiction regulating the making of subordinate legislation does not apply to a rate of return instrument.

pt 3, div 1B, sdivs 1–5 (ss 18F–18Y): Ins 2018 No 33, sec 6.

18H Rate of return instrument is binding on AER and network service providers

18H Rate of return instrument is binding on AER and network service providers

A rate of return instrument is binding on—

(a) the AER in relation to the performance or exercise of an AER economic regulatory function or power; and

(b) each network service provider in relation to a matter relevant to the performance or exercise of an AER economic regulatory function or power.

pt 3, div 1B, sdivs 1–5 (ss 18F–18Y): Ins 2018 No 33, sec 6.

pt.3-div.1B-sdiv.2 Requirement to make rate of return instrument

Subdivision 2 Requirement to make rate of return instrument

pt 3, div 1B, sdivs 1–5 (ss 18F–18Y): Ins 2018 No 33, sec 6.

18I AER to make rate of return instrument

18I AER to make rate of return instrument

(1) This section applies if a rate of return on capital or the value of imputation credits is required for performing or exercising an AER economic regulatory function or power.

(2) The AER must make an instrument (a rate of return instrument) stating—

(a) for a rate of return on capital—the way to calculate the rate; and

(b) for the value of imputation credits—the value or the way to calculate the value.

(3) The AER may make an instrument only if satisfied the instrument will, or is most likely to, contribute to the achievement of the national electricity objective to the greatest degree.

(4) Subject to subsection (3), the way to calculate a rate of return on capital must include a weighted average of an allowed return on equity and an allowed return on debt.

(5) In making an instrument, the AER must have regard to—

(a) the revenue and pricing principles; and

(b) other information the AER considers appropriate.

pt 3, div 1B, sdivs 1–5 (ss 18F–18Y): Ins 2018 No 33, sec 6.

18J Content of rate of return instrument

18J Content of rate of return instrument

(1) If a rate of return instrument states the value of imputation credits, the instrument must state a single value to apply in relation to all regulated network service providers.

(2) If a rate of return instrument states a way to calculate the rate of return on capital or the value of imputation credits, the instrument must—

(a) provide for the same methodology to apply in relation to all regulated network service providers in calculating the rate or value; and

(b) provide for the methodology to apply automatically without the exercise of any discretion by the AER.

Example for paragraph (b)—

The instrument can not include different methodologies or a band of values from which the AER could choose in applying the instrument.

(3) Subject to subsections (1) and (2), the instrument may include other matters the AER considers appropriate.

Example—

Matters to help a regulated network service provider calculate a rate of return or the value of imputation credits.

pt 3, div 1B, sdivs 1–5 (ss 18F–18Y): Ins 2018 No 33, sec 6.

pt.3-div.1B-sdiv.3 Consultation requirements

Subdivision 3 Consultation requirements

pt 3, div 1B, sdivs 1–5 (ss 18F–18Y): Ins 2018 No 33, sec 6.

18K Process for making rate of return instrument

18K Process for making rate of return instrument

Subject to this Division, the AER may make a rate of return instrument in the way it considers appropriate.

pt 3, div 1B, sdivs 1–5 (ss 18F–18Y): Ins 2018 No 33, sec 6.

18L Other matters AER must have regard to in making instrument

18L Other matters AER must have regard to in making instrument

In making a rate of return instrument, the AER must also have regard to the following—

(a) advice, recommendations or submissions given by a consumer reference group;

(b) submissions made, and the report published, under section 18M;

(c) submissions made under section 18O;

(d) the report given by the independent panel under section 18P.

pt 3, div 1B, sdivs 1–5 (ss 18F–18Y): Ins 2018 No 33, sec 6.

18M Requirements before publishing draft instrument

18M Requirements before publishing draft instrument

(1) Before publishing a draft rate of return instrument under this Subdivision, the AER must—

(a) establish a reference group to help the AER implement an effective consumer consultation process for making the proposed instrument (a consumer reference group); and

(b) publish a notice on its website—

(i) inviting persons to make a written submission to the AER about the proposed instrument; and

(ii) stating the period, not less than 28 days, within which a submission must be made; and

(c) seek concurrent expert opinions or evidence about the proposed instrument.

(2) A person may make a submission after the stated period only with the written approval of the AER.

(3) Subject to subsections (4) and (5), the AER may seek the expert opinions or evidence in the way it considers appropriate.

Example—

The AER might convene a conference of experts to identify key issues, and areas of dispute and agreement among the experts, about the content of the proposed instrument.

(4) The AER must call for nominations of eligible experts but may seek the expert opinions or evidence from any eligible expert.

(5) If practicable, the AER must seek the expert opinions or evidence from at least 3 eligible experts.

(6) The AER must publish on its website—

(a) submissions made under this section; and

(b) a report on the outcomes of seeking the expert opinions or evidence.

(7) In this section—

eligible expert means a person with qualifications or experience in a field the AER considers relevant to making a rate of return instrument.

Examples of relevant fields—

Finance, economics, law, consumer affairs, institutional investment.

pt 3, div 1B, sdivs 1–5 (ss 18F–18Y): Ins 2018 No 33, sec 6.

18N Consumer reference group

18N Consumer reference group

(1) A consumer reference group for making a rate of return instrument—

(a) is to consist of the members appointed by the AER; and

(b) may carry out its activities, including giving advice or recommendations to the AER about the instrument, in the way it considers appropriate.

(2) Without limiting subsection (1)(b), the consumer reference group may—

(a) consult with consumers of electricity; and

(b) facilitate consumer engagement in the process for making the instrument; and

(c) make written submissions to the AER about the content of the instrument and the process for making it.

(3) The AER must publish on its website any written advice, recommendations or submissions given to it by the consumer reference group.

pt 3, div 1B, sdivs 1–5 (ss 18F–18Y): Ins 2018 No 33, sec 6.

18O Publication of draft instrument and other information

18O Publication of draft instrument and other information

(1) The AER must, at least 6 months before making a rate of return instrument, publish on its website—

(a) a draft of the proposed instrument and the explanatory information for the instrument; and

(b) a notice—

(i) inviting persons to make a written submission to the AER about the proposed instrument; and

(ii) stating the period, not less than 28 days, within which a submission must be made.

(2) A person may make a submission after the stated period only with the written approval of the AER.

(3) The AER must publish submissions made under this section on its website.

pt 3, div 1B, sdivs 1–5 (ss 18F–18Y): Ins 2018 No 33, sec 6.

18P Report about draft instrument by independent panel

18P Report about draft instrument by independent panel

(1) The AER must, as soon as practicable after publishing the draft instrument, establish an independent panel to give the AER a written report about the instrument.

(2) The panel—

(a) may carry out its activities, including giving the report, in the way it considers appropriate; but

(b) must seek to give the report by consensus.

(3) The panel must—

(a) consist of at least 3 members, appointed by the AER, who have qualifications or experience in a field the AER considers relevant to making a rate of return instrument; and

Examples of relevant fields—

Finance, economics, law, consumer affairs, institutional investment.

(b) give the report to the AER before the AER makes the instrument.

(4) The AER must take reasonable steps to minimise and manage any conflicts of interest a panel member may have in relation to making the instrument.

(5) The report must—

(a) include the panel’s assessment of the evidence and reasons supporting the rate of return on capital or the value of imputation credits under the instrument; and

(b) state whether the report is given by consensus.

(6) The AER must publish the report on its website.

pt 3, div 1B, sdivs 1–5 (ss 18F–18Y): Ins 2018 No 33, sec 6.

18Q Publication of explanatory information

18Q Publication of explanatory information

The AER must publish explanatory information for a rate of return instrument on its website when the instrument is published under section 18S.

pt 3, div 1B, sdivs 1–5 (ss 18F–18Y): Ins 2018 No 33, sec 6.

18R Failure to comply does not affect validity

18R Failure to comply does not affect validity

Failure to comply with this Subdivision does not invalidate or otherwise affect a rate of return instrument.

pt 3, div 1B, sdivs 1–5 (ss 18F–18Y): Ins 2018 No 33, sec 6.

pt.3-div.1B-sdiv.4 Publication, review and other matters

Subdivision 4 Publication, review and other matters

pt 3, div 1B, sdivs 1–5 (ss 18F–18Y): Ins 2018 No 33, sec 6.

18S Publication of rate of return instrument

18S Publication of rate of return instrument

After making a rate of return instrument, the AER must publish the instrument on its website.

Note—

See section 18Q for the requirement to publish explanatory information for the instrument.

pt 3, div 1B, sdivs 1–5 (ss 18F–18Y): Ins 2018 No 33, sec 6.

18T Commencement and duration of instrument

18T Commencement and duration of instrument

A rate of return instrument—

(a) commences on the day after it is published on the AER’s website; and

(b) remains in force until the end of the day it is replaced under section 18U.

pt 3, div 1B, sdivs 1–5 (ss 18F–18Y): Ins 2018 No 33, sec 6.

18U Review and replacement of instrument

18U Review and replacement of instrument

(1) The AER must—

(a) review each rate of return instrument; and

(b) make a new rate of return instrument under this Division to replace the reviewed instrument.

(2) The AER must replace the reviewed instrument by publishing the new instrument on its website on the day that is—

(a) the fourth anniversary of the day the reviewed instrument was published; or

(b) if the day mentioned in paragraph (a) is not a business day—the first business day after that day.

pt 3, div 1B, sdivs 1–5 (ss 18F–18Y): Ins 2018 No 33, sec 6.

18V Application of instrument

18V Application of instrument

(1) A rate of return instrument—

(a) applies for the purposes of an AER economic regulatory decision made after the commencement of the instrument; and

(b) does not affect an AER economic regulatory decision made before the commencement of the instrument.

(2) To remove any doubt, it is declared that the application of the instrument under this Law, including, for example, in making a distribution determination or transmission determination, is an AER economic regulatory function or power.

pt 3, div 1B, sdivs 1–5 (ss 18F–18Y): Ins 2018 No 33, sec 6.

18W Rate of return instrument may apply for this Law and the National Gas Law

18W Rate of return instrument may apply for this Law and the National Gas Law

(1) The AER may make 1 rate of return instrument for the purposes of this Law and the National Gas Law.

(2) If the AER acts under subsection (1)—

(a) the process for making the instrument under Chapter 2 Part 1 Division 1A of the National Gas Law is taken to have been complied with for the instrument; and

(b) the instrument is taken to be the rate of return instrument for the purposes of the National Gas Law.

Note—

See also section 30R of the National Gas Law.

(3) To remove any doubt, it is declared that the instrument may include different ways to calculate the rate of return on capital and the value of imputation credits for the purposes of this Law and the National Gas Law.

pt 3, div 1B, sdivs 1–5 (ss 18F–18Y): Ins 2018 No 33, sec 6.

pt.3-div.1B-sdiv.5 Confidentiality of information

Subdivision 5 Confidentiality of information

pt 3, div 1B, sdivs 1–5 (ss 18F–18Y): Ins 2018 No 33, sec 6.

18X Confidentiality

18X Confidentiality

(1) If a person wishes to give information to the AER for the purposes of this Division in confidence—

(a) the person must give the AER written notice that the person claims the information is confidential; and

(b) give reasons to support the claim, including—

(i) information about the detriment that might be caused to the person if the information were disclosed by the AER; and

(ii) information that—

(A) is reasonably within the person’s knowledge and capacity to give; and

(B) may be relevant to the AER’s consideration under section 28ZB about whether the public benefit in disclosing the information outweighs the detriment.

(2) In giving reasons to support a claim under subsection (1) about information received from another person (a third party), a person may include information that—

(a) is reasonably within the person’s knowledge and capacity to give; and

(b) is about the detriment that might be caused to the third party if the information were disclosed by the AER; and

(c) may be relevant to the AER’s consideration under section 28ZB about whether the public benefit in disclosing the information outweighs the detriment.

(3) In acting under subsection (1), a person must specifically identify the information in relation to which the claim is made.

(4) Information given to the AER for the purposes of this Division is not to be regarded as being given in confidence, or to be confidential in any way, unless the information is subject to an express claim of confidentiality made under this section.

pt 3, div 1B, sdivs 1–5 (ss 18F–18Y): Ins 2018 No 33, sec 6.

18Y Disclosure of information given in confidence

18Y Disclosure of information given in confidence

(1) Division 6 applies in relation to publishing information given to the AER in confidence under this Division.

(2) In this section—

information includes advice, recommendations, submissions and reports.

pt 3, div 1B, sdivs 1–5 (ss 18F–18Y): Ins 2018 No 33, sec 6.

Division 1C Retailer Reliability Obligation—AER compliance regime

Division 1C Retailer Reliability Obligation—AER compliance regime

pt 3, div 1C (ss 18Z–18ZI): Ins 2019 No 10, sec 9.

18Z Definitions

18Z Definitions

In this Division—

compliance audit—see section 18ZE or 18ZF;

regulated entity—see section 18ZA(2);

Reliability Compliance Procedures and Guidelines—see section 18ZI.

pt 3, div 1C (ss 18Z–18ZI): Ins 2019 No 10, sec 9.

18ZA Obligation of AER to monitor compliance

18ZA Obligation of AER to monitor compliance

(1) The AER must monitor compliance of regulated entities with the Retailer Reliability Obligation.

(2) Each of the following persons is a regulated entity for the purposes of this Division—

(a) a liable entity;

(b) another person prescribed by the Rules.

pt 3, div 1C (ss 18Z–18ZI): Ins 2019 No 10, sec 9.

18ZB Obligation of regulated entities to establish arrangements to monitor compliance

18ZB Obligation of regulated entities to establish arrangements to monitor compliance

(1) A regulated entity must establish policies, systems and procedures to enable it to efficiently and effectively monitor its compliance with the Retailer Reliability Obligation.

(2) The policies, systems and procedures must be established and observed in accordance with the Reliability Compliance Procedures and Guidelines.

pt 3, div 1C (ss 18Z–18ZI): Ins 2019 No 10, sec 9.

18ZC Obligation of regulated entities to keep records

18ZC Obligation of regulated entities to keep records

(1) A regulated entity must keep records of its activities that—

(a) allow the regulated entity to give accurate information and data relating to its compliance with the Retailer Reliability Obligation; and

(b) enable the AER to assess whether the regulated entity has complied with its obligations under the Retailer Reliability Obligation; and

(c) comply with the requirements of subsection (2) and Rules made for the purposes of subsection (3).

(2) The regulated entity must keep the records for 5 years from the end of the year in which the activities take place.

Note—

Subsections (1) and (2) are civil penalty provisions: See the definition of civil penalty provision in section 2AA(1).

(3) The Rules may state requirements about the type and form of records that must be kept under subsection (1).

pt 3, div 1C (ss 18Z–18ZI): Ins 2019 No 10, sec 9.

18ZD Obligation of regulated entities to provide information and data about compliance

18ZD Obligation of regulated entities to provide information and data about compliance

A regulated entity must give the AER, in the manner, form and timeframes required by the Reliability Compliance Procedures and Guidelines, information and data relating to the regulated entity’s compliance with the Retailer Reliability Obligation.

Note—

This section is a civil penalty provision: See the definition of civil penalty provision in section 2AA(1).

pt 3, div 1C (ss 18Z–18ZI): Ins 2019 No 10, sec 9.

18ZE Compliance audits by AER

18ZE Compliance audits by AER

(1) The AER may carry out an audit (a compliance audit) of a regulated entity’s activities to assess the regulated entity’s compliance with the Retailer Reliability Obligation.

(2) Without limitation, a compliance audit may be carried out to assess a regulated entity’s compliance with the reliability obligations.

(3) The AER may carry out a compliance audit by arranging for a contractor or another person to carry out the compliance audit on the AER’s behalf.

(4) The cost of carrying out a compliance audit of a regulated entity under this section is—

(a) an amount determined under the Reliability Compliance Procedures and Guidelines; and

(b) recoverable by the AER from the regulated entity.

pt 3, div 1C (ss 18Z–18ZI): Ins 2019 No 10, sec 9.

18ZF Compliance audits by regulated entities

18ZF Compliance audits by regulated entities

(1) If required by the AER, a regulated entity must carry out an audit (a compliance audit) of specified aspects of the entity’s activities relating to the entity’s compliance with the Retailer Reliability Obligation.

(2) The regulated entity may carry out a compliance audit by arranging for a contractor or another person to carry out the compliance audit on the entity’s behalf, but the entity remains responsible for the carrying out of the compliance audit.

(3) A regulated entity must give the AER the results of a compliance audit carried out under this section within a period specified by the AER.

Note—

Subsections (1) and (3) are civil penalty provisions: See the definition of civil penalty provision in section 2AA(1).

pt 3, div 1C (ss 18Z–18ZI): Ins 2019 No 10, sec 9.