This Act adopts the South Australian National Energy Retail Law and its regulations into NSW with NSW-specific modifications, making the national framework operate as NSW law. It authorises the AER and tribunal to act in NSW, enables the Governor to make adapting regulations, and allows future amendments of the adopted law to flow in unless modified.
The changes create a Market Monitor, expand information‑sharing (including IPART to AER), and alter commercial liabilities and cost‑recovery between distributors, retailers and small customers—shifting compliance, reporting and allocation of risks.
The National Energy Retail Law (Adoption) Act 2012 operates as the vehicle by which New South Wales applies the National Energy Retail Law (NERL) set out in the Schedule to the National Energy Retail Law (South Australia) Act 2011. Under s 4, the NERL as amended from time to time applies as a law of NSW with the modifications set out in Schedule 1, and “as so applying may be referred to as the National Energy Retail Law (NSW)”. It is deemed to apply “as if it were an Act”. Parallel provision is made in s 5 for the National Energy Retail Regulations, which apply with modifications prescribed by regulations under this Act and are referred to as the National Energy Retail Regulations (NSW).
Section 6 supplies jurisdiction-specific interpretations: “National Energy Retail Law or this Law” means the National Energy Retail Law (NSW), and “this jurisdiction or the jurisdiction” means New South Wales. Section 7 excludes the Interpretation Act 1987 and the Subordinate Legislation Act 1989 from applying to the National Energy Retail Law (NSW) or instruments made under it (subject to a carve-out for regulations made under s 12). South Australian interpretation legislation is similarly excluded from the NERL in its NSW application.
The Act confers functions on Commonwealth bodies. Section 8 empowers the Australian Energy Regulator (AER) and the Australian Competition Tribunal to perform functions expressed to be conferred on them by the national energy retail legislation of another participating jurisdiction. Section 9 extends the reading-down provision in s 320 of the National Energy Retail Law (NSW) to the whole of the Adoption Act.
Sections 10 and 11 contain transitional validations. Section 10 validates instruments and decisions made by the AER after the South Australian Act was enacted but before the NERL first applied in NSW, provided the AER satisfied any conditions that would have been required had the Law already applied. Such instruments are taken to be valid from the application time. Section 11 deems the AER to have satisfied any preparatory-step requirements (consultation, publication, etc.) undertaken in the same pre-application window.
Current sections
Direct links to the current provisions in National Energy Retail Law (Adoption) Act 2012.
(1) This Act commences on a day or days to be appointed by proclamation.
(2) Different days may be appointed under subsection (1) for the commencement of different provisions of the National Energy Retail Law set out in the Schedule to the South Australian Act.
3
Interpretation
3 Interpretation
3 Interpretation
(1) In this Act—
National Energy Retail Law (NSW) means the provisions applying in this jurisdiction because of section 4.
National Energy Retail Regulations (NSW) means the provisions applying in this jurisdiction because of section 5.
South Australian Act means the National Energy Retail Law (South Australia) Act 2011 of South Australia.
(2) Terms used in this Act and also in the National Energy Retail Law set out in the Schedule to the South Australian Act have the same meanings in this Act as they have in that Law.
(3) This section does not apply to the extent that the context or subject-matter otherwise indicates or requires.
Part 2
Application of National Energy Retail Law
Part 2 Application of National Energy Retail Law
Part 2 Application of National Energy Retail Law
4
Application of National Energy Retail Law
4 Application of National Energy Retail Law
4 Application of National Energy Retail Law
The National Energy Retail Law, as amended from time to time, set out in the Schedule to the South Australian Act—
(a) applies as a law of this jurisdiction, with the modifications set out in Schedule 1, and
Application of regulations under National Energy Retail Law
5 Application of regulations under National Energy Retail Law
5 Application of regulations under National Energy Retail Law
The regulations, as amended from time to time, under the National Energy Retail Law set out in the Schedule to the South Australian Act—
(a) apply as regulations in force for the purposes of the National Energy Retail Law (NSW), subject to modifications prescribed by the regulations under this Act, and
(b) as so applying may be referred to as the National Energy Retail Regulations (NSW).
(2) To avoid doubt, subsection (1) does not apply to a regulation made under section 12 of this Act.
(3) The Acts Interpretation Act 1915, and other Acts, of South Australia do not apply to the following—
(a) the National Energy Retail Law set out in the Schedule to the South Australian Act in its application as a law of New South Wales,
(b) the regulations in force for the time being under the National Energy Retail Law set out in the Schedule to the South Australian Act in their application as regulations in force for the purposes of the National Energy Retail Law (NSW).
Part 3
Related matters
Part 3 Related matters
Part 3 Related matters
8
Conferral of functions and powers on Commonwealth bodies to act in this jurisdiction
8 Conferral of functions and powers on Commonwealth bodies to act in this jurisdiction
8 Conferral of functions and powers on Commonwealth bodies to act in this jurisdiction
(1) A Commonwealth body has power to do acts in or in relation to this State in the performance or exercise of a function or power expressed to be conferred on the Commonwealth body by the national energy retail legislation of another participating jurisdiction.
(2) In this section—
Commonwealth body means—
(a) the AER, or
(b) the Tribunal.
9
Extension of reading-down provision
9 Extension of reading-down provision
9 Extension of reading-down provision
(1) Section 320 of the National Energy Retail Law (NSW) has effect in relation to the operation of any provision of this Act as if the provision formed part of that Law.
(2) Subsection (1) does not limit the effect that a provision would validly have apart from the subsection.
10
Validation of instruments and decisions made by Australian Energy Regulator
10 Validation of instruments and decisions made by Australian Energy Regulator
10 Validation of instruments and decisions made by Australian Energy Regulator
(1) This section applies to an instrument or a decision made by the AER if—
(a) the instrument or decision was made—
(i) at or after the time that the South Australian Act was enacted, but
(ii) before the time (the application time) that the National Energy Retail Law set out in the Schedule to the South Australian Act first started to apply under this Act as a law of New South Wales, and
(b) had the National Energy Retail Law started so to apply, the making of the instrument or decision would have been authorised by one of the following laws (the authorising laws)—
(iii) an instrument made or having effect under this Act, and
(c) in a case in which the making of the instrument or decision would be so authorised subject to the satisfaction of any conditions or other requirements (for example, consultation or publication requirements)—the AER has done anything that would, if the National Energy Retail Law had started so to apply, be required under the authorising law for the instrument or decision to be so authorised.
(2) For the purposes of the authorising law—
(a) the instrument or decision is taken to be valid, and
(b) the instrument or decision has effect from the application time—
(i) as varied, and unless revoked, by any other instrument or decision to which this section applies, and
(ii) subject to that law so applying.
(3) For the purposes of this section—
(a) guidelines are an example of an instrument, and
(b) the following are examples of decisions—
(i) appointments,
(ii) determinations,
(iii) approvals.
11
Australian Energy Regulator—authorisation of preparatory steps
11 Australian Energy Regulator—authorisation of preparatory steps
11 Australian Energy Regulator—authorisation of preparatory steps
(1) This section applies if—
(a) the AER is required to do something (a preparatory step) before making a decision or making an instrument under the National Energy Retail Law (NSW), or this Act, or an instrument made or having effect under this Act (the authorising law), and
(b) the AER takes the preparatory step—
(i) at or after the time that the South Australian Act was enacted, but
(ii) before the time that the National Energy Retail Law set out in the Schedule to the South Australian Act first started to apply under this Act as a law of New South Wales.
(2) For the purposes of the authorising law, the AER is taken to have complied with the requirement to take the preparatory step.
Part 4
Miscellaneous
Part 4 Miscellaneous
Part 4 Miscellaneous
12
Regulations
12 Regulations
12 Regulations
(1) The Governor may make regulations, not inconsistent with this Act, for or with respect to any matter that by this Act is required or permitted to be prescribed or that is necessary or convenient to be prescribed for carrying out or giving effect to this Act.
(2) The regulations may—
(a) amend Schedule 1, and
(b) prescribe modifications to the regulations, as amended from time to time, under the National Energy Retail Law set out in the Schedule to the South Australian Act for the purposes of section 5 of this Act, and
(c) modify the operation of the National Energy Retail Rules, to the extent that they apply as a law of this State.
(3) The Governor may make such regulations as are contemplated by the National Energy Retail Law (NSW) as being made under this Act, including regulations constituting local instruments being made under this Act as the application Act of this jurisdiction.
(4) Regulations made under this Act may create offences punishable by a penalty not exceeding 100 penalty units.
(5) An offence created by a regulation made under this Act is a summary offence.
13
Savings and transitional regulations
13 Savings and transitional regulations
13 Savings and transitional regulations
(1) The regulations may contain provisions of a savings or transitional nature consequent on the enactment of the following Acts—
(2) Any such provision may, if the regulations so provide, take effect from the date of assent to the Act concerned or a later date.
(3) To the extent to which any such provision takes effect from a date that is earlier than the date of its publication on the NSW legislation website, the provision does not operate so as—
(a) to affect, in a manner prejudicial to any person (other than the State or an authority of the State), the rights of that person existing before the date of its publication, or
(b) to impose liabilities on any person (other than the State or an authority of the State) in respect of anything done or omitted to be done before the date of its publication.
14
Provision of information by IPART
14 Provision of information by IPART
14 Provision of information by IPART
(1) The Independent Pricing and Regulatory Tribunal (IPART) is authorised, on its own initiative or at the request of the AER—
(a) to provide the AER with such information (including information given in confidence) in the possession or control of IPART that is reasonably required by the AER for the purposes of this Act or the National Energy Retail Law (NSW), and
(b) to provide the AER with such other assistance as is reasonably required by the AER to perform or exercise a function or power under this Act or the National Energy Retail Law (NSW).
(2) IPART may authorise the AER to disclose information provided under this section even if the information was given to IPART in confidence.
(3) Nothing done or authorised to be done by IPART in acting under this section—
(a) constitutes a breach of, or default under, an Act or other law, or
(b) constitutes a breach of, or default under, a contract, agreement, understanding or undertaking, or
(c) constitutes a breach of duty of confidence (whether arising by contract, in equity or by custom or in any other way), or
(d) constitutes a civil or criminal wrong, or
(e) terminates an agreement or obligation or fulfils any condition that allows a person to terminate an agreement or obligation, or gives rise to any other right or remedy, or
(f) releases a surety or any other obligee wholly or in part from an obligation.
Schedule 1
New South Wales changes and additions to National Energy Retail Law
Schedule 1 New South Wales changes and additions to National Energy Retail Law
Schedule 1 New South Wales changes and additions to National Energy Retail Law
This Act is the National Energy Retail Law (Adoption) Act 2012.
2 Commencement
2 Commencement
2 Commencement
(1) This Act commences on a day or days to be appointed by proclamation.
(2) Different days may be appointed under subsection (1) for the commencement of different provisions of the National Energy Retail Law set out in the Schedule to the South Australian Act.
3 Interpretation
3 Interpretation
3 Interpretation
(1) In this Act—
National Energy Retail Law (NSW) means the provisions applying in this jurisdiction because of section 4.
National Energy Retail Regulations (NSW) means the provisions applying in this jurisdiction because of section 5.
South Australian Act means the National Energy Retail Law (South Australia) Act 2011 of South Australia.
(2) Terms used in this Act and also in the National Energy Retail Law set out in the Schedule to the South Australian Act have the same meanings in this Act as they have in that Law.
(3) This section does not apply to the extent that the context or subject-matter otherwise indicates or requires.
Part 2 Application of National Energy Retail Law
Part 2 Application of National Energy Retail Law
Part 2 Application of National Energy Retail Law
4 Application of National Energy Retail Law
4 Application of National Energy Retail Law
4 Application of National Energy Retail Law
The National Energy Retail Law, as amended from time to time, set out in the Schedule to the South Australian Act—
(a) applies as a law of this jurisdiction, with the modifications set out in Schedule 1, and
(b) as so applying may be referred to as the National Energy Retail Law (NSW), and
Part 4 contains regulation-making powers. Section 12 authorises the Governor to make regulations for carrying out the Act, including amendments to Schedule 1, modifications to the national regulations, and modifications to the National Energy Retail Rules. Regulations may create summary offences punishable by up to 100 penalty units. Section 13 permits savings and transitional regulations consequent on this Act or the Energy Legislation Amendment (National Energy Retail Law) Act 2012, with limited retrospectivity that cannot prejudicially affect private rights or impose liabilities before publication. Section 14 authorises IPART to provide information (including confidential information) and assistance to the AER, and protects IPART from civil or criminal liability for doing so; it may also authorise the AER to disclose that information.
Schedule 1 makes numerous NSW-specific changes. Electricity sales are limited to premises connected (or to be connected) to the national electricity system (new s 3AZ). A power to exempt persons or areas by regulation is inserted (new s 3B). Various national definitions and sections are omitted or replaced, including the definition of “small market offer customer” (which is stated to be inapplicable in NSW) and the entirety of Part 7. New s 204A confers on the AER the function of monitoring retailer and exempt seller compliance with Electricity Supply Act 1995 provisions relating to energy ombudsman decisions.
The most substantial addition is new Part 9A, which establishes a Market Monitor (prescribed by NSW regulations) to monitor the performance and competitiveness of the retail electricity and gas markets for small customers. The Market Monitor must produce annual reports to the Minister addressing participation rates, regional prices, barriers to entry, price diversity, and potential need for further reviews (s 234A). The Minister may direct special reviews of prices and profit margins (s 234B). Reporting to Parliament is facilitated by s 234C even when the House is not sitting. Regulation-making powers in s 234D allow further prescription of the Market Monitor’s functions, information-gathering powers, and, if IPART is chosen as Market Monitor, application of provisions of the Independent Pricing and Regulatory Tribunal Act 1992 or the Electricity Supply Act 1995.
Additional NSW provisions appear at the end of Schedule 1. Section 316A permits distributors to contract out of the statutory immunity in s 316(1) of the NERL with small customers and to include such variations in standard connection contracts. Section 318A clarifies that nothing in clause 6B.A3.1 of the National Electricity Rules prevents a distributor recovering network charges for de-energisation or re-energisation from a retailer where rule 76A of the National Energy Retail Rules prevents the retailer from recovering those charges from a vulnerable customer.
Collectively the Act therefore does three things: (1) applies the national consumer-protection and market framework with NSW adaptations; (2) supplies interpretive, validation, information-sharing and regulation-making infrastructure; and (3) overlays a NSW-specific market-monitoring and additional consumer-protection regime.
Who it affects
The Adoption Act directly affects three broad classes of entity.
First, energy retailers and exempt sellers operating in NSW. They are subject to the National Energy Retail Law (NSW), the National Energy Retail Rules as modified, and the additional obligations in new ss 204A (ombudsman compliance monitoring) and the Market Monitor information requests under s 234A(8). Retailers must also comply with any exemptions or conditions made under new s 3B and with any modifications effected by regulations under s 12(2)(c).
Second, distributors (network service providers). They are affected by the new provisions on immunity variation (s 316A), the ability to recover network charges for de-energisation of vulnerable customers (s 318A), and the application of the Law only to premises connected to the national electricity system (s 3AZ).
Third, small customers (residential and small business consumers). They benefit from the customer protection provisions of the NERL as modified, the ability to vary statutory immunity by agreement, the restrictions on network charge recovery from vulnerable customers, and the market monitoring that is intended to improve competition and keep downward pressure on prices. The Market Monitor’s reports must expressly consider participation of particular groups of small customers.
Regulatory bodies are also affected. The AER receives additional functions (s 204A), validation of its pre-commencement acts (ss 10–11), information from IPART (s 14), and the obligation to supply data to the Market Monitor (s 234A(7)(a)). The Independent Pricing and Regulatory Tribunal (IPART) may be prescribed as the Market Monitor and, if so, exercises the monitoring, reporting and special-review functions in Part 9A; it is also authorised to share information with the AER. The Minister receives annual and special reports and must table them in Parliament. The Governor exercises the regulation-making powers that can amend Schedule 1 and modify national rules. Finally, the energy ombudsman benefits indirectly from AER monitoring of compliance with ombudsman decisions.
Commonwealth bodies (AER and Tribunal) are empowered to act in NSW when functions are conferred by legislation of other participating jurisdictions (s 8). The Act therefore creates a complex web of obligations and rights stretching from individual householders to national regulators and state Ministers.
Key duties and rights
The Adoption Act itself is largely framework; the substantive duties and rights sit in the National Energy Retail Law (NSW) as modified. Nevertheless several duties and rights are either created or adjusted by the Act.
Market monitoring duties are central. The Market Monitor must monitor both electricity and gas retail markets for small customers and produce annual reports addressing at least eight specified matters (s 234A(3)), including barriers to entry, price diversity, and whether a detailed review of profit margins is required. The Monitor may require retailers to supply customer numbers, market offer prices and standing offer data (s 234A(8)). When directed, the Monitor must conduct special reviews without being limited to publicly available information (s 234B(3)).
Information and assistance duties fall on IPART. It is authorised (and therefore effectively obliged when requested) to supply information, including confidential information, and assistance to the AER (s 14(1)). IPART may authorise onward disclosure by the AER. The provision then confers broad immunity on IPART for any breach of confidence, contract or statutory duty that might otherwise arise.
Customer rights are adjusted in three notable ways. First, distributors and small customers may contract out of the statutory immunity in NERL s 316(1) (s 316A(1)); such variations may also be included in standard connection contracts and are deemed fair and reasonable (s 316A(2)). Second, distributors retain the ability to recover network charges from retailers even where retailers cannot pass them on to vulnerable customers under National Energy Retail Rules r 76A (s 318A). Third, the limitation of the Law’s electricity application to national electricity system customers (s 3AZ) narrows the class of premises to which customer protection rules apply.
Exemption powers are conferred on the Executive. Regulations may exempt any area or person from any or all provisions of the Law, subject to conditions (new s 3B).
Regulatory duties are imposed on the AER by the addition of the ombudsman-compliance monitoring function (new s 204A). The AER must also, when acting under the validated pre-commencement instruments, treat those instruments as having been validly made (s 10(2)).
Parliamentary accountability rights are created by the tabling requirements in s 234C, which include a mechanism for presenting reports to the Clerk when the House is not sitting. The reports are taken to have been laid before the House on presentation.
Penalties and enforcement
The Adoption Act itself creates no primary offence provisions. Instead s 12(4) authorises regulations made under the Act to create summary offences punishable by a penalty not exceeding 100 penalty units. Any such offence is a summary offence (s 12(5)).
Enforcement of the substantive obligations occurs under the National Energy Retail Law (NSW) and the National Energy Retail Rules as modified. The AER’s monitoring role in respect of energy ombudsman decisions (s 204A) is intended to feed into that enforcement regime. The Market Monitor does not possess direct enforcement powers; its role is diagnostic and reporting-based, although regulations under s 234D may confer ancillary functions including information-gathering powers.
Civil enforcement is affected by the validation provisions. Instruments and decisions validated by s 10 are treated as valid from the application time for the purposes of the authorising law, thereby preserving the enforceability of any downstream regulatory or civil consequences. The immunity conferred on IPART by s 14(3) prevents any civil or criminal action being brought against IPART for disclosure of information.
The exclusion of the Subordinate Legislation Act 1989 (s 7(1)(b)) removes certain procedural safeguards that would otherwise apply to regulations that modify the national scheme, although regulations made under s 12 remain subject to ordinary parliamentary disallowance processes.
How it interacts with other laws
The Adoption Act is expressly designed to sit alongside the National Electricity Law, the National Gas Law and the Australian Energy Market Agreement. It cross-references the National Electricity Rules (NER) in s 318A and the Electricity Supply Act 1995 in ss 204A, 234D and 316A.
Section 7 excludes both NSW and South Australian interpretation legislation. This prevents the ordinary rules of statutory interpretation, commencement, repeal and amendment from applying to the National Energy Retail Law (NSW), ensuring that amendments to the national schedule operate uniformly across jurisdictions. The carve-out for regulations made under s 12 preserves the application of the Interpretation Act 1987 to those regulations.
The Act interacts with the Independent Pricing and Regulatory Tribunal Act 1992 and the Electricity Supply Act 1995 when IPART is prescribed as Market Monitor; s 234D(e) permits regulations to apply provisions of those Acts (with or without modification) to the Market Monitor’s functions.
Validation provisions in ss 10 and 11 interact with the commencement clause (s 2), which allows staggered proclamation of different parts of the South Australian schedule. They ensure regulatory continuity across the gap between the South Australian enactment and the NSW application time.
Section 9 extends the NERL’s reading-down provision (s 320) to the Adoption Act itself, maximising the chance that any invalid part can be severed without collapsing the remainder.
The information-sharing provision in s 14 overrides any contractual or equitable duty of confidence that IPART would otherwise owe, and prevents termination of contracts or release of sureties that might otherwise be triggered by disclosure.
Recent changes and why
Schedule 1 records a series of amendments made by regulations and Acts between 2013 and 2026. The 2013 amendments (2013 (168), 2013 No 111) repealed certain early clauses and adjusted definitions. The 2014 amendments (2014 (400), 2014 (408)) substituted clauses and further modified the lower consumption threshold note. The 2015, 2017, 2020, 2022 and 2024 amendments (2015 No 36, 2017 (290), 2020 (228), 2022 (712), 2024 No 47) progressively expanded the Market Monitor regime, inserted the vulnerable-customer network charge rule (s 318A), and refined the electricity application provision (s 3AZ).
The 2026 amendments listed (2026 (113)) appear to be forward-looking adjustments to the Market Monitor’s information powers and reporting obligations. These changes were made because experience in the competitive retail market revealed gaps: regional price disparities, barriers to new entrants, and difficulties in recovering network charges from vulnerable customers after de-energisation. The insertion of Part 9A responded to concerns that the pure national framework did not provide sufficient ongoing transparency for the NSW Minister and Parliament. The addition of s 204A strengthened oversight of retailer compliance with ombudsman outcomes, which had proved difficult to enforce under the unamended national law. Each amendment therefore represents a deliberate policy choice to adapt the national consumer-protection model to NSW-specific market conditions while preserving the uniformity of the NERL across participating jurisdictions.
Court challenges and controversies
The Act contains no express provisions recording or responding to specific court challenges. However, the validation provisions in ss 10 and 11 are clearly drafted in anticipation of possible legal controversy about the AER’s power to make instruments before the Law applied in NSW. By deeming both the instruments and the preparatory steps valid, the sections remove the basis for any ultra vires or procedural-invalidity arguments that might otherwise have arisen from the staggered commencement under s 2.
The exclusion of the Interpretation Act 1987 and the Subordinate Legislation Act 1989 (s 7) has the potential to generate controversy about the level of parliamentary scrutiny applicable to modifications of the national scheme. Because those Acts do not apply, the usual scrutiny and disallowance procedures are displaced, leaving only the general regulation-making scrutiny mechanisms. Legal commentators might argue that this reduces accountability, although s 12(2) makes clear that regulations amending Schedule 1 remain subject to the ordinary rule-making process.
The Market Monitor’s power to require retailers to supply commercially sensitive pricing data (s 234A(8)) could raise competition-law or confidentiality concerns, but the Act authorises regulations under s 234D(d) to prohibit or regulate disclosure of that information, providing a legislative safety valve. No specific judicial decisions are referenced in the text; the provisions therefore appear to have been drafted to pre-empt rather than respond to litigation.
Gotchas
Most practitioners assume that because the NERL is “national”, its definitions and thresholds apply uniformly. In NSW that is not so. The definition of “small market offer customer” is expressly stated to be inapplicable (Schedule 1 item 7), the lower consumption threshold note refers to “NSW regulations” rather than “National Regulations”, and electricity sales are confined to national electricity system premises (new s 3AZ). Failing to notice these substitutions can produce incorrect advice on customer classification and the Law’s territorial reach.
The validation provisions in ss 10 and 11 have retrospective effect from the application time. A retailer or customer seeking to challenge an AER guideline or determination made in the pre-application window will find the challenge statute-barred by the deeming of validity. Counsel should check the precise application time proclaimed under s 2 before advising on any transitional regulatory action.
Section 316A is easily overlooked. Distributors can, and sometimes do, insert clauses in standard connection contracts that vary the statutory immunity in NERL s 316(1). Because such clauses are deemed fair and reasonable for the purposes of s 75 of the NERL, they survive unfair-contracts scrutiny. Negotiators acting for large customers should expressly address immunity variation rather than assume the statutory position applies.
The Market Monitor’s annual report obligation is tied to financial years ending 30 June, with the first gas report commencing 1 July 2017. However, the obligation to lay the report before Parliament within 30 days (or via the Clerk mechanism) is on the Minister, not the Monitor. Delays in ministerial tabling have occurred; stakeholders monitoring market transparency must track the parliamentary record rather than the Monitor’s delivery date.
Finally, s 14(3) immunity for IPART is extraordinarily broad. It covers not only breach of confidence but also “any civil or criminal wrong” and prevents termination of contracts or release of sureties. Once IPART has disclosed information to the AER, downstream use by the AER is largely insulated from collateral attack. Compliance professionals should treat any IPART–AER information exchange as effectively irreversible.
How to comply
Compliance begins with identifying which version of the National Energy Retail Law (NSW) applies. Because the Law is amended from time to time and Schedule 1 is itself amendable by regulation (s 12(2)(a)), practitioners must maintain an up-to-date consolidated version rather than relying on the original South Australian schedule.
Retailers and exempt sellers must:
Map their customer base against the NSW-specific definitions (lower consumption threshold, exclusion of “small market offer customer”, and s 3AZ electricity limitation).
Implement systems to respond to Market Monitor notices under s 234A(8) within the time specified in any notice.
Monitor AER guidelines and determinations that have been validated under s 10; these bind as if made after the application time.
Ensure contracts with small customers contain any required wording prescribed by regulations under s 316A(3) if immunity is to be varied.
Maintain records sufficient to demonstrate compliance with energy ombudsman decisions, given the AER’s monitoring function under new s 204A.
Distributors should:
Review standard connection contracts to decide whether to exercise the s 316A(2) option to vary statutory immunity.
When imposing network charges for de-energisation of vulnerable customers, rely on s 318A to recover from retailers notwithstanding National Energy Retail Rules r 76A.
Confirm that any exemption granted under new s 3B is being observed in full.
The AER must treat all pre-application instruments as valid and, when exercising functions conferred by other jurisdictions’ legislation, ensure it acts within the power conferred by s 8.
IPART, if prescribed as Market Monitor, must comply with the data-collection limits in s 234A(7) for annual reports but may use wider sources for special reviews. It should obtain express authorisation before releasing any confidential information to the AER under s 14(2).
All parties should monitor regulations made under s 12 and s 234D. Because these can amend Schedule 1 and modify the National Energy Retail Rules, a compliance program must include a subscription to the NSW legislation website and a quarterly review protocol. Savings and transitional regulations under s 13 may apply from the date of assent; therefore any advice given after a new amending Act must check the latest s 13 regulation for prejudicial retrospectivity.
Finally, when advising on market monitoring reports, note that the Minister must table them within 30 days. Advisers can use the s 234C Clerk-presentation mechanism as a public record even if the parliamentary sitting schedule delays formal tabling. A robust compliance system therefore integrates national NERL obligations, NSW-specific Schedule 1 variations, and ongoing regulatory monitoring of both primary legislation and the voluminous subordinate instruments permitted by the Act.
Section 4Application of National Energy Retail Law
5 Application of regulations under National Energy Retail Law
5 Application of regulations under National Energy Retail Law
5 Application of regulations under National Energy Retail Law
The regulations, as amended from time to time, under the National Energy Retail Law set out in the Schedule to the South Australian Act—
(a) apply as regulations in force for the purposes of the National Energy Retail Law (NSW), subject to modifications prescribed by the regulations under this Act, and
(b) as so applying may be referred to as the National Energy Retail Regulations (NSW).
6 Interpretation of certain expressions
6 Interpretation of certain expressions
6 Interpretation of certain expressions
In the National Energy Retail Law (NSW) and the National Energy Retail Regulations (NSW)—
National Energy Retail Law or this Law means the National Energy Retail Law (NSW).
this jurisdiction or the jurisdiction means New South Wales.
7 Exclusion of legislation of this jurisdiction and South Australia
7 Exclusion of legislation of this jurisdiction and South Australia
7 Exclusion of legislation of this jurisdiction and South Australia
(1) The following Acts of this jurisdiction do not apply to the National Energy Retail Law (NSW) or to instruments made under that Law—
(a) the Interpretation Act 1987,
(b) the Subordinate Legislation Act 1989.
(2) To avoid doubt, subsection (1) does not apply to a regulation made under section 12 of this Act.
(3) The Acts Interpretation Act 1915, and other Acts, of South Australia do not apply to the following—
(a) the National Energy Retail Law set out in the Schedule to the South Australian Act in its application as a law of New South Wales,
(b) the regulations in force for the time being under the National Energy Retail Law set out in the Schedule to the South Australian Act in their application as regulations in force for the purposes of the National Energy Retail Law (NSW).
Part 3 Related matters
Part 3 Related matters
Part 3 Related matters
8 Conferral of functions and powers on Commonwealth bodies to act in this jurisdiction
8 Conferral of functions and powers on Commonwealth bodies to act in this jurisdiction
8 Conferral of functions and powers on Commonwealth bodies to act in this jurisdiction
(1) A Commonwealth body has power to do acts in or in relation to this State in the performance or exercise of a function or power expressed to be conferred on the Commonwealth body by the national energy retail legislation of another participating jurisdiction.
(2) In this section—
Commonwealth body means—
(a) the AER, or
(b) the Tribunal.
9 Extension of reading-down provision
9 Extension of reading-down provision
9 Extension of reading-down provision
(1) Section 320 of the National Energy Retail Law (NSW) has effect in relation to the operation of any provision of this Act as if the provision formed part of that Law.
(2) Subsection (1) does not limit the effect that a provision would validly have apart from the subsection.
10 Validation of instruments and decisions made by Australian Energy Regulator
10 Validation of instruments and decisions made by Australian Energy Regulator
10 Validation of instruments and decisions made by Australian Energy Regulator
(1) This section applies to an instrument or a decision made by the AER if—
(a) the instrument or decision was made—
(i) at or after the time that the South Australian Act was enacted, but
(ii) before the time (the application time) that the National Energy Retail Law set out in the Schedule to the South Australian Act first started to apply under this Act as a law of New South Wales, and
(b) had the National Energy Retail Law started so to apply, the making of the instrument or decision would have been authorised by one of the following laws (the authorising laws)—
(i) the National Energy Retail Law (NSW) or the National Energy Retail Regulations (NSW),
(ii) this Act,
(iii) an instrument made or having effect under this Act, and
(c) in a case in which the making of the instrument or decision would be so authorised subject to the satisfaction of any conditions or other requirements (for example, consultation or publication requirements)—the AER has done anything that would, if the National Energy Retail Law had started so to apply, be required under the authorising law for the instrument or decision to be so authorised.
(2) For the purposes of the authorising law—
(a) the instrument or decision is taken to be valid, and
(b) the instrument or decision has effect from the application time—
(i) as varied, and unless revoked, by any other instrument or decision to which this section applies, and
(ii) subject to that law so applying.
(3) For the purposes of this section—
(a) guidelines are an example of an instrument, and
(b) the following are examples of decisions—
(i) appointments,
(ii) determinations,
(iii) approvals.
11 Australian Energy Regulator—authorisation of preparatory steps
11 Australian Energy Regulator—authorisation of preparatory steps
11 Australian Energy Regulator—authorisation of preparatory steps
(1) This section applies if—
(a) the AER is required to do something (a preparatory step) before making a decision or making an instrument under the National Energy Retail Law (NSW), or this Act, or an instrument made or having effect under this Act (the authorising law), and
(b) the AER takes the preparatory step—
(i) at or after the time that the South Australian Act was enacted, but
(ii) before the time that the National Energy Retail Law set out in the Schedule to the South Australian Act first started to apply under this Act as a law of New South Wales.
(2) For the purposes of the authorising law, the AER is taken to have complied with the requirement to take the preparatory step.
Part 4 Miscellaneous
Part 4 Miscellaneous
Part 4 Miscellaneous
12 Regulations
12 Regulations
12 Regulations
(1) The Governor may make regulations, not inconsistent with this Act, for or with respect to any matter that by this Act is required or permitted to be prescribed or that is necessary or convenient to be prescribed for carrying out or giving effect to this Act.
(2) The regulations may—
(a) amend Schedule 1, and
(b) prescribe modifications to the regulations, as amended from time to time, under the National Energy Retail Law set out in the Schedule to the South Australian Act for the purposes of section 5 of this Act, and
(c) modify the operation of the National Energy Retail Rules, to the extent that they apply as a law of this State.
(3) The Governor may make such regulations as are contemplated by the National Energy Retail Law (NSW) as being made under this Act, including regulations constituting local instruments being made under this Act as the application Act of this jurisdiction.
(4) Regulations made under this Act may create offences punishable by a penalty not exceeding 100 penalty units.
(5) An offence created by a regulation made under this Act is a summary offence.
13 Savings and transitional regulations
13 Savings and transitional regulations
13 Savings and transitional regulations
(1) The regulations may contain provisions of a savings or transitional nature consequent on the enactment of the following Acts—
this Act and any Act that amends this Act
Energy Legislation Amendment (National Energy Retail Law) Act 2012
(2) Any such provision may, if the regulations so provide, take effect from the date of assent to the Act concerned or a later date.
(3) To the extent to which any such provision takes effect from a date that is earlier than the date of its publication on the NSW legislation website, the provision does not operate so as—
(a) to affect, in a manner prejudicial to any person (other than the State or an authority of the State), the rights of that person existing before the date of its publication, or
(b) to impose liabilities on any person (other than the State or an authority of the State) in respect of anything done or omitted to be done before the date of its publication.
14 Provision of information by IPART
14 Provision of information by IPART
14 Provision of information by IPART
(1) The Independent Pricing and Regulatory Tribunal (IPART) is authorised, on its own initiative or at the request of the AER—
(a) to provide the AER with such information (including information given in confidence) in the possession or control of IPART that is reasonably required by the AER for the purposes of this Act or the National Energy Retail Law (NSW), and
(b) to provide the AER with such other assistance as is reasonably required by the AER to perform or exercise a function or power under this Act or the National Energy Retail Law (NSW).
(2) IPART may authorise the AER to disclose information provided under this section even if the information was given to IPART in confidence.
(3) Nothing done or authorised to be done by IPART in acting under this section—
(a) constitutes a breach of, or default under, an Act or other law, or
(b) constitutes a breach of, or default under, a contract, agreement, understanding or undertaking, or
(c) constitutes a breach of duty of confidence (whether arising by contract, in equity or by custom or in any other way), or
(d) constitutes a civil or criminal wrong, or
(e) terminates an agreement or obligation or fulfils any condition that allows a person to terminate an agreement or obligation, or gives rise to any other right or remedy, or
(f) releases a surety or any other obligee wholly or in part from an obligation.
Schedule 1 New South Wales changes and additions to National Energy Retail Law
Schedule 1 New South Wales changes and additions to National Energy Retail Law
Schedule 1 New South Wales changes and additions to National Energy Retail Law
NSW regulations means regulations made under the National Energy Retail Law (Adoption) Act 2012;
Note—
This definition is an additional New South Wales provision.
5
[5], [6] (Repealed)
7 Section 2 (1)
7 Section 2 (1)
[7] Section 2 (1)
Omit the definition of small market offer customer. Insert instead—
small market offer customer
Note—
This definition is not applicable in New South Wales.
10
[8]–[10] (Repealed)
11 Sections 3AZ and 3B
11 Sections 3AZ and 3B
[11] Sections 3AZ and 3B
Insert after section 3—
11 3AZ—Application of Law to sale of electricity [NSW]
11 3AZ—Application of Law to sale of electricity [NSW]
3AZ—Application of Law to sale of electricity [NSW]
Insofar as this Law applies to electricity, this Law, subject to the NSW regulations, applies only in relation to the sale of electricity to customers whose premises are connected, or are to be connected, to the national electricity system within the meaning of the NEL.
Note—
This section is an additional New South Wales provision.
11 3B—Exemptions from Law [NSW]
11 3B—Exemptions from Law [NSW]
3B—Exemptions from Law [NSW]
(1) The NSW regulations may exempt, or provide for the exemption of, any area or person from any or all of the provisions of this Law.
(2) An exemption under this section may be made subject to conditions.
Note—
This section is an additional New South Wales provision.
12
[12] (Repealed)
13 Section 5 (4)
13 Section 5 (4)
[13] Section 5 (4)
Omit the subsection. Insert instead—
(4)
Note—
This subsection is not applicable in New South Wales.
14 Section 6 Provisions relating to consumption thresholds for business customers
14 Section 6 Provisions relating to consumption thresholds for business customers
[14] Section 6 Provisions relating to consumption thresholds for business customers
Omit “National Regulations” wherever occurring in section
This is an opening excerpt, not the complete document.