Part 6AEvidentiary matters

Part 6A—Evidentiary matters Division 1—Publication on websites 31AA—Definitions relevant AER decision means a decision (however described) or determination (however described) of the AER under this Law or the Rules; relevant notice means a notice under the Rules calling for submissions or comments in relation to a relevant decision. 31AB—Publication of relevant AER decisions on websites (1) For the purposes of this Law, a relevant AER decision or relevant notice that is required by this Law or the Rules to be published on a website is to be taken to be published on the website if— (a) the relevant AER decision or relevant notice is made accessible in full on the website; or (b) notice of the making or publication of the AER relevant decision or relevant notice is made accessible on that website and the relevant AER decision or relevant notice is made accessible separately in full on that website or in any other identified location. (2) The date on which the relevant AER decision or relevant notice is published on the website is the date notified by the AER on the website as the date of the relevant AER decision's or relevant notice's publication (being not earlier than the date on which it was first made so accessible). Division 2—Evidentiary certificates 31AC—Definitions acting SES employee has the same meaning as in section 17AA of the Acts Interpretation Act 1901 of the Commonwealth; AEMC chief executive means the chief executive of the AEMC appointed under section 16 of the Australian Energy Market Commission Establishment Act 2004 of South Australia; AEMC Commissioner means a Commissioner within the meaning of the Australian Energy Market Commission Establishment Act 2004 of South Australia; AER member has the same meaning as in the Competition and Consumer Act 2010 of the Commonwealth; relevant notice has the same meaning as in clause 31AA; SES employee has the same meaning as in section 17AA of the Acts Interpretation Act 1901 of the Commonwealth. 31AD—Evidentiary certificates—AER In any proceedings under this Law, a certificate signed or purported to be signed by an AER member, or an SES employee or acting SES employee assisting the AER as mentioned in section 44AAC of the Competition and Consumer Act 2010 of the Commonwealth, stating any of the following matters is evidence of the matter: (a) a stated document is 1 of the following things made, issued, developed, prepared, promulgated, served, sent, delivered or given under this Law or the Rules: (i) a decision (however described) or determination (however described); (ii) an authorisation under section 20; (iii) a general regulatory information order; (iv) a notice, notification, direction or requirement; (b) a stated document is a copy of a thing referred to in paragraph (a); (ba) a stated document is a copy of a rate of return instrument; (c) on a stated day, a person was or was not— (i) given a decision (however described) or determination (however described); (ii) authorised as an authorised person (within the meaning of section 19); (iii) served a notice under section 28 or a regulatory information notice; (iv) notified under section 28J; (d) on a stated day any of the following were published on the AER's website: (i) a decision (however described) or determination (however described); (ii) a general regulatory information order; (iii) a relevant notice. 31AE—Evidentiary certificates—AEMC In any proceedings under this Law, a certificate signed or purported to be signed by a Commissioner or the AEMC chief executive, stating any of the following matters is evidence of the matter: (a) a stated document is 1 of the following things made, issued, developed, prepared, promulgated, served, sent, delivered or given under this Law or the Rules: (i) a decision (however described); or (ii) a determination (however described); (b) a stated document is a copy of a thing referred to in paragraph (a); (c) on a stated day a person was or was not given a decision (however described) or determination (however described); (d) on a stated day a relevant notice was published on the AEMC's website. 31AF—Evidentiary certificates—AEMO (1) In any proceedings under this Law, any of the following certificates signed or purportedly signed by an authorised officer is evidence of the matter certified: (a) a certificate certifying that a document identified in the certificate is a decision (however described) or a determination (however described) made by AEMO or a copy of such a decision or determination; (b) a certificate certifying that a document identified in the certificate was made, issued, developed, prepared, promulgated, served, sent, delivered, or given under this Law or the Rules on a specified date or over a specified period; (c) a certificate certifying that a decision, determination or notice was published on AEMO's website on a specified date. (2) For this clause, an authorised officer is AEMO's CEO or a person authorised by AEMO's CEO to issue certificates under this clause. There is no clause 31AG. Part 6B—Commencement of this Law and Statutory instruments 31AH—Time of commencement of this Law or a provision of this Law If a provision of an Act of South Australia provides that this Law or a provision of this Law shall commence, or be deemed to have commenced, on a particular day, it shall commence, or be deemed to have commenced, at the beginning of that day. 31AI—Time of commencement of a Rule (1) If a Rule provides that the Rule shall commence on a particular day, it shall commence at the beginning of that day. (2) If a provision of an Act of South Australia provides that a Rule is deemed to have commenced on a particular day, the Rule shall be deemed to have commenced at the beginning of that day. (3) If a notice published in the South Australian Government Gazette under Division 2 of Part 7 or section 104 provides that a Rule shall commence on a particular day, the Rule shall commence at the beginning of that day. Part 7—Effect of repeal, amendment or expiration 31—Time of Law, the Regulations or Rules ceasing to have effect If a provision of this Law, the Regulations or the Rules is expressed— (a) to expire on a specified day; or (b) to remain or continue in force, or otherwise have effect, until a specified day, the provision has effect until the last moment of the specified day. 32—Repealed Law, Regulation or Rule provisions not revived (1) If a provision of this Law is repealed or amended by an Act of South Australia or a provision of an Act of South Australia, the provision is not revived merely because the Act or the provision of the Act— (a) is later repealed or amended; or (b) later expires. (2) If a provision of the Regulations or the Rules is repealed or amended by a Regulation or a Rule, the provision is not revived merely because the Regulation or Rule— (a) is later repealed or amended; or (b) later expires. 33—Saving of operation of repealed Law, Regulation or Rule provisions (1) The repeal, amendment or expiry of a provision of this Law, the Regulations or the Rules does not— (a) revive anything not in force or existing at the time the repeal, amendment or expiry takes effect; or (b) affect the previous operation of the provision or anything suffered, done or begun under the provision; or (c) affect a right, privilege or liability acquired, accrued or incurred under the provision; or (d) affect a penalty incurred in relation to an offence arising under the provision; or (2) Any such penalty may be imposed and enforced, and any such investigation, proceeding or remedy may be begun, continued or enforced, as if the provision had not been repealed or amended or had not expired. 34—Continuance of repealed provisions (1) If an Act of South Australia repeals some provisions of this Law and enacts new provisions in substitution for the repealed provisions, the repealed provisions continue in force until the new provisions commence. (2) If a Regulation or Rule repeals some provisions of the Regulations or Rules and enacts new provisions in substitution for the repealed provisions, the repealed provisions continue in force until the new provisions commence. 35—Law and amending Acts to be read as one This Law and all Acts of this jurisdiction amending this Law are to be read as one. Part 8—Offences under this Law 36—Penalty at end of provision In this Law, a penalty specified at the end of— (a) a section (whether or not the section is divided into subsections); or (b) a subsection (but not at the end of a section); or (c) a section or subsection and expressed in such a way as to indicate that it applies only to part of the section or subsection, indicates that an offence mentioned in the section, subsection or part is punishable on conviction or, if no offence is mentioned, a contravention of the section, subsection or part constitutes an offence against the provision that is punishable, on conviction, by a penalty not more than the specified penalty. 37—Penalty other than at end of provision (1) In this Law, a penalty specified for an offence, or a contravention of a provision, indicates that the offence is punishable on conviction, or the contravention constitutes an offence against the provision that is punishable, on conviction, by a penalty not more than the specified penalty. (2) This clause does not apply to a penalty to which clause 36 applies. 37A—Indexation of civil penalty amounts (1) Each civil penalty amount is to be adjusted in accordance with the method prescribed by the Regulations for the purposes of this clause. (2) The first adjustment is to occur on 1 July 2023. (3) The next adjustment is to occur on 1 July 2026 and an adjustment is to occur on 1 July every 3 years after that. (4) The AER must, on or as soon as practicable after the date of the first adjustment and before each subsequent adjustment, publish on its website the civil penalty amounts that apply on and from the date of the adjustment. However, a failure by the AER to do so does not invalidate an adjustment. (5) A civil penalty amount that is adjusted under this clause applies to a breach of a civil penalty provision that occurs or is alleged to occur on or after the date of the adjustment. civil penalty amount means— (a) each amount specified in section 2AB(1)(a), (b), (c)(i) or (ii)(A) or (d)(i) or (ii)(A); and (b) each amount specified as an infringement penalty in section 76. 37B—Indexation of criminal penalties (1) Each criminal penalty amount is to be adjusted in accordance with the method prescribed by the Regulations for the purposes of this clause. (2) The first adjustment is to occur on 1 July 2023. (3) The next adjustment is to occur on 1 July 2026 and an adjustment is to occur on 1 July every 3 years after that. (4) The AER must, on or as soon as practicable after the date of the first adjustment and before each subsequent adjustment, publish on its website the criminal penalty amounts that apply on and from the date of the adjustment. However, a failure by the AER to do so does not invalidate an adjustment. (5) A criminal penalty amount that is adjusted under this clause applies to a breach of a provision that occurs or is alleged to occur on or after the date of the adjustment. criminal penalty amount means any amount, specified in this Law, which is the maximum monetary penalty that may be imposed on conviction for the commission of an offence against this Law. 38—Indictable offences and summary offences (1) An offence against this Law that is not punishable by imprisonment is punishable summarily. (2) An offence against this Law that is punishable by imprisonment is, subject to subclause (3), punishable on indictment. (a) a proceeding for an offence against this Law that is punishable by imprisonment is instituted in a court of summary jurisdiction; and (b) the prosecutor requests the court to hear and determine the proceeding, the offence is punishable summarily and the court must hear and determine the proceeding. (4) A court of summary jurisdiction must not— (a) impose, in relation to a single offence against this Law, a period of imprisonment of more than two years; or (b) impose, in relation to offences against the Law, cumulative periods of imprisonment that are, in total, more than five years. (5) Nothing in this clause renders a person liable to be punished more than once in relation to the same offence. 39—Double jeopardy (1) If an act or omission constitutes an offence— (a) under this Law as applied as a law of this jurisdiction; and (b) under this Law as applied as a law of another jurisdiction, and the offender has been punished in relation to the offence under the law mentioned in paragraph (b), the offender is not liable to be punished in relation to the offence mentioned in paragraph (a). (2) If an act or omission constitutes— (a) a breach of a civil penalty provision of this Law as applied as a law of this jurisdiction; and (b) a breach of a civil penalty provision of this Law as applied as a law of another jurisdiction, and the person in breach of the civil penalty provision mentioned in paragraph (a) has been punished in relation to the civil penalty provision mentioned in paragraph (b), the person is not liable in relation to the breach of the civil penalty provision mentioned in paragraph (a). (3) The Court must not make a declaration that a person has breached a provision of this Law, the Regulations or the Rules that is not an offence provision if the person has been convicted of an offence constituted by conduct that is substantially the same as the conduct constituting the breach. (4) Proceedings for a declaration referred to in subclause (3) are stayed if— (a) criminal proceedings are commenced or have already been commenced against the person for an offence; and (b) the offence is constituted by conduct that is substantially the same as the conduct alleged to constitute the breach. (5) The proceedings for the declaration referred to in subclause (3) may be resumed if the person is not convicted of the offence. Otherwise, the proceedings for the declaration must be dismissed. civil penalty provision has the same meaning as in section 2AA(1). 40—Aiding and abetting, attempts etc (1) A person who aids, abets, counsels or procures, or by act or omission is in any way directly or indirectly concerned in or a party to, the commission of an offence against this Law is taken to have committed that offence and is liable to the penalty for the offence. (2) A person who attempts to commit an offence against this Law commits an offence and is punishable as if the attempted offence had been committed. Part 9—Instruments under this Law 41—Schedule applies to statutory instruments (1) This Schedule applies to a statutory instrument, and to things that may be done or are required to be done under a statutory instrument, in the same way as it applies to this Law, and things that may be done or are required to be done under this Law, except so far as the context or subject matter otherwise indicates or requires. (2) The fact that a provision of this Schedule refers to this Law and not also to a statutory instrument does not, by itself, indicate that the provision is intended to apply only to this Law. statutory instrument includes the Regulations, a reliability instrument, the rate of return instrument or the Rules. 41A—Rate of return instrument construed not to exceed the legislative power of the Legislature of this jurisdiction or the powers conferred by this Law (1) A rate of return instrument is to be construed as operating to the full extent of, but so as not to exceed, the legislative power of the Legislature of this jurisdiction or the power conferred by this Law under which it is made. (2) If a provision of the rate of return instrument, or the application of a provision of the instrument to a person, subject matter or circumstance, would, but for this clause, be construed as being in excess of the legislative power of the Legislature of this jurisdiction or the power conferred by this Law under which it is made— (b) the remainder of the instrument, and the application of the provision to other persons, subject matters or circumstances, is not affected. 41B—Reliability instrument construed not to exceed the legislative power of the Legislature of this jurisdiction or the powers conferred by this Law (1) A reliability instrument is to be construed as operating to the full extent of, but so as not to exceed, the legislative power of the Legislature of this jurisdiction or the power conferred by this Law under which it is made. (2) If a provision of a reliability instrument, or the application of a provision of the instrument to a person, subject matter or circumstance, would, but for this clause, be construed as being in excess of the legislative power of the Legislature of this jurisdiction or the power conferred by this Law under which it is made— (b) the remainder of the instrument, and the application of the provision to other persons, subject matters or circumstances, is not affected. 42—National Electricity Rules to be construed so as not to exceed the legislative power of the Legislature of this jurisdiction or the powers conferred by this Law (1) The National Electricity Rules are to be construed as operating to the full extent of, but so as not to exceed, the legislative power of the Legislature of this jurisdiction or the power conferred by this Law under which they are made. (2) If a provision of the National Electricity Rules, or the application of a provision of the National Electricity Rules to a person, subject matter or circumstance, would, but for this clause, be construed as being in excess of the legislative power of the Legislature of this jurisdiction or the power conferred by this Law under which it is made— (b) the remainder of the National Electricity Rules, and the application of the provision to other persons, subject matters or circumstances, is not affected. (3) Without limiting subclause (2), the National Electricity Rules are not to be construed as imposing any duty on the Tribunal or AER to perform a function or exercise a power if the imposition of the duty would be in excess of the legislative power of the Legislature of this jurisdiction. The term "function" is defined in clause 10 to include "duty". (4) In particular, if a provision of the National Electricity Rules appears to impose a duty on a Commonwealth officer or body to perform a function or exercise a power, the duty is taken to be imposed by the provision to the extent to which imposing the duty— (a) is within the legislative powers of this jurisdiction; and (b) is consistent with the constitutional doctrines under the Constitution of the Commonwealth restricting the duties that may be imposed on a Commonwealth officer or body. (4a) To avoid doubt, a provision of the National Electricity Rules does not impose the duty on the Commonwealth officer or body to the extent to which imposing the duty would— (a) contravene any constitutional doctrine under the Constitution of the Commonwealth restricting the duties that may be imposed on a Commonwealth officer or body; or (b) otherwise exceed the legislative powers of this jurisdiction. (4b) If imposing on the Commonwealth officer or body the duty to do that thing would— (a) contravene any constitutional doctrine restricting the duties that may be imposed on a Commonwealth officer or body; or (b) otherwise exceed the legislative powers of both the State and the Commonwealth, the provision of the National Electricity Rules is taken instead to confer on the Commonwealth officer or body a power to do that thing at the discretion of the Commonwealth officer or body (as the case may require). (5) This clause does not limit the effect that a provision of the National Electricity Rules, or the provision of this Law under which it is made, would validly have apart from this clause. 43—Invalid Rules (1) If the Court orders (by declaration or otherwise) that a Rule is invalid, the order of the Court does not— (a) revive anything not in force or existing at the time of the order of the Court; or (b) affect the previous operation of the Rule or anything suffered, done or begun under the Rule; or (c) affect a right, privilege or liability acquired, accrued or incurred under the Rule; or (d) affect a penalty arising because of a breach of the Rule; or (2) A penalty may be imposed and enforced, and any such investigation, proceeding or remedy may be begun, continued or enforced as if the Rule had not been ordered by the Court as invalid. 43A—Invalid rate of return instrument (1) This clause applies if the Court orders (by declaration or otherwise) that a rate of return instrument is invalid. (2) The AER must make a new rate of return instrument under this Law to replace the invalid instrument. (3) Until the invalid instrument is replaced, the rate of return on capital and the value of imputation credits under the invalid instrument continue to apply for the purposes of this Law. (4) However, the AER must deal with any affected determination to apply the new rate of return instrument to the determination as if the new instrument had applied from the start of the determination. (5) Subclause (4) applies despite section 18V(1). affected determination means a distribution determination or transmission determination to which the invalid instrument applied or continued to apply; deal with, an affected determination, means to do either of the following the AER considers appropriate in the circumstances— (a) revoke the determination and substitute a new determination; (b) vary the determination. Schedule 3—Savings and transitionals (section 4)