Part 1 Preliminary

Part 1 Preliminary

Division 1 Citation and interpretation

Division 1 Citation and interpretation

1 Citation

1 Citation

This Law may be cited as the National Energy Retail Law (NSW).

2 Interpretation

2 Interpretation

(1) In this Law—

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

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

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

AER Exempt Selling Guidelines—see section 118;

AER exempt selling regulatory function or power means a function or power performed or exercised by the AER under Division 6 or 7 of Part 5 and the Rules relating to exemptions from the requirement to hold a retailer authorisation, including (but not limited to) the following—

(a) a decision whether to grant, vary or revoke an individual exemption;

(b) a decision whether to impose, vary or revoke conditions on an individual exemption;

(c) a decision whether to make, vary or revoke a determination specifying deemed exemptions or registrable exemptions, including any associated conditions;

(d) a decision to make or vary the AER Exempt Selling Guidelines;

AER regulatory function or power means a function or power performed or exercised by the AER under this Law or the Rules that relates to—

(a) the AER performance regime under Division 2 of Part 12;

(b) a retailer authorisation under Part 5;

(c) an AER exempt selling regulatory function or power;

(d) the AER Retail Pricing Information Guidelines and price comparator;

(e) approval of deemed AER approved standard connection contracts under Division 5 of Part 3;

(f) the RoLR scheme under Part 6;

(g) the AER trial waiver functions under Part 5A;

AER Retail Pricing Information Guidelines—see section 61;

AER Retailer Authorisation Guidelines—see section 117;

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 of a retailer or distributor includes—

(a) an employee or agent of the retailer or distributor; and

(b) a person contracted by the retailer or distributor; and

(c) a person who receives or is contracted to receive commissions from the retailer or distributor;

business customer means a customer who is not a residential customer;

business day means a day that is not—

(a) a Saturday or Sunday; or

(b) observed as a public holiday on the same day in each of the participating jurisdictions (except the Commonwealth);

business premises means premises of a business customer, other than premises used solely or principally for personal, household or domestic use;

carry-over customer means a small customer who continues consuming energy at premises after the customer’s previously current customer retail contract expires or terminates—

(a) without provision in that contract for the terms and conditions to apply after expiry or termination for the continued provision of those services; and

(b) without applying to a retailer for the provision (after that expiry or termination) of those services;

Centrepay means the voluntary direct deduction facility operated by Centrelink;

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) a liability for a civil penalty; or

(b) an infringement penalty under provisions applied by this Law; or

(c) a liability for the costs of a proceeding;

civil penalty—see section 4A;

civil penalty provision has the meaning given by section 4(1);

Commonwealth Minister means the Minister of the Commonwealth administering the Australian Energy Market Act 2004 of the Commonwealth;

conduct provision has the meaning given by section 4(2);

connection means a physical link between a distribution system and a customer’s premises to allow the flow of energy;

connection alteration means an alteration to an existing connection, including an addition, upgrade, extension, expansion, augmentation or any other kind of alteration;

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;

covered gas has the same meaning as in the NGL;

customer—see section 5;

customer connection contract means a contract between a distributor and a customer of the kind referred to in section 67;

customer connection service for premises means any or all of the following—

(a) a service relating to a new connection for the premises;

(b) a service relating to a connection alteration for the premises;

(c) a supply service for the premises, including (but not limited to) the energisation, de-energisation or re-energisation of the premises;

(d) a service prescribed by the Rules as a customer connection service for the purposes of this definition;

customer hardship policy means a customer hardship policy approved under Division 6 of Part 2;

customer retail contract means a contract between a small customer and a retailer of a kind referred to in section 20 for the provision of customer retail services for particular premises;

customer retail service means the sale of energy by a retailer to a customer at premises;

declared wholesale gas market has the same meaning as in the NGL;

de-energisation or disconnection of premises means—

(a) in the case of electricity—the opening of a connection; or

(b) in the case of gas—the closing of a connection,

in order to prevent the flow of energy to the premises;

deemed AER approved standard connection contract means a customer connection contract that is taken to be entered into under section 76;

deemed customer retail arrangement—see section 54;

deemed standard connection contract means a customer connection contract that is taken to be entered into under section 70;

delivery point identifier means the meter installation identification as defined under the relevant Retail Market Procedures within the meaning of the NGL and made under the NGR;

designated retailer for a small customer’s premises means—

(a) in a case where there is no existing connection—the local area retailer for the relevant geographical area, premises or customer (see section 11(3)); or

(b) in a case where there is an existing connection (including where a connection alteration to an existing connection is required)—the financially responsible retailer for the premises;

disconnection—see the definition of de-energisation;

distribution system means—

(a) for a distributor who is a regulated distribution system operator within the meaning of the NEL—a distribution system within the meaning of the NEL; or

(b) for a distributor who is a service provider within the meaning of the NGL who owns, operates or controls a distribution pipeline that is a scheme pipeline under that law—a distribution pipeline within the meaning of the NGL; or

(c) for a nominated distributor under section 12—the nominated distribution system that is specified under that section;

distributor means—

(a) a regulated distribution system operator within the meaning of the NEL; or

(b) a service provider within the meaning of the NGL who owns, operates or controls a distribution pipeline that is a scheme pipeline under that Law; or

(c) a nominated distributor, to the extent provided by section 12;

distributor service standards means service standards imposed on distributors by or under energy laws, including, for example, service standards relating to the following—

(a) the frequency and duration of supply interruptions;

(b) the timely notice of planned interruptions;

(c) the quality of supply (excluding frequency) for electricity (including voltage variations);

(d) wrongful de-energisation;

(e) timeframes for de-energisation and re-energisation;

(f) being on time for appointments;

(g) response times for fault calls;

(h) the provision of fault information;

energisation of premises means—

(a) in the case of electricity—the closing of a connection; or

(b) in the case of gas—the opening of a connection,

in order to allow the flow of energy to the premises;

energy means electricity or gas or both;

energy laws includes—

(a) national energy legislation; and

(b) jurisdictional energy legislation; and

(c) the Rules, the NER and the NGR; and

(d) instruments made under this Law, the Rules, the NER and the NGR (including the Retail Market Procedures);

energy marketing activity means an activity that is carried on to market, advertise or promote—

(a) customer connection services; or

(b) customer retail services; or

(c) a supplier or prospective supplier of customer connection services or customer retail services,

to a small customer;

energy ombudsman means a body or person prescribed by the National Regulations as an energy ombudsman;

Energy Security Board means the Energy Security Board referred to in section 2(1) of the NEL;

entry criteria (in relation to retailer authorisations)—see section 90;

exempt seller means a person who is exempted by the AER under Division 6 of Part 5 from the requirement to hold a retailer authorisation;

explicit informed consent—see section 39;

financially responsible retailer for premises means—

(a) in the case of electricity—the retailer who is the financially responsible Market Participant responsible for the premises under the NER; or

(b) in the case of gas—the retailer who is responsible for settling the account for gas withdrawn from the delivery point (however described) associated with the premises under the relevant Retail Market Procedures;

gas means the following—

(a) natural gas;

(b) a natural gas equivalent;

(c) a prescribed covered gas;

GSL scheme means a scheme set out in energy laws under which there are distributor service standards to which an associated payment (a Guaranteed Service Level payment or GSL payment) is payable by a distributor to the customer where the distributor fails to meet the service standard;

hardship customer means a residential customer of a retailer who is identified as a customer experiencing financial payment difficulties due to hardship in accordance with the retailer’s customer hardship policy;

hardship program indicators means the hardship program indicators under section 287;

initial National Energy Retail Rules means the Initial National Energy Retail Rules made under Part 10 Division 3;

innovative trial principles—see section 13A;

jurisdictional energy legislation means legislation of a participating jurisdiction (other than national energy legislation), or any instrument made or issued under or for the purposes of that legislation, that regulates energy in that jurisdiction;

jurisdictional gas legislation has the same meaning as in the NGL;

jurisdictional regulator means a body or person that is prescribed by the National Regulations as a jurisdictional regulator;

large customer—see section 5;

life support equipment means life support equipment of a kind or kinds defined in the Rules;

local area retailer means a retailer nominated under section 11;

local instrument means a regulation, rule, order, declaration or other instrument made under an application Act, but does not include the National Regulations;

Note—

See also subsection (6).

lower consumption threshold—see sections 5 and 6;

Note—

Provisions for determining and reviewing the consumption thresholds are contained in the NSW regulations. Provisions for applying the thresholds are contained in the Rules.

market offer means an offer by a retailer to a small customer to provide customer retail services under a market retail contract;

market offer prices means the tariffs and charges that a retailer charges a small customer for or in connection with the sale of energy to a small customer under a market retail contract;

market retail contract means a customer retail contract referred to in section 33;

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 9;

MCE statement of policy principles means a statement of policy principles issued by the MCE under section 14;

meter identifier means—

(a) in the case of electricity—the NMI; or

(b) in the case of gas—the MIRN or the delivery point identifier;

Minister of a participating jurisdiction—see section 10;

MIRN means the meter installation registration number as defined under the relevant gas Retail Market Procedures;

move-in customer means a small customer who starts consuming energy at premises without first applying to a retailer for the provision of customer retail services;

national energy legislation means—

(a) the national energy retail legislation; and

(b) the national electricity legislation as defined in the NEL; and

(c) the national gas legislation as defined in the NGL;

national energy retail legislation means—

(a) this Law as applying, by the application Act of a participating jurisdiction, as a law of that jurisdiction; and

(b) the National Regulations; and

(c) the application Act of a participating jurisdiction; and

(d) the local instruments of a participating jurisdiction;

national energy retail objective means the objective set out in section 13;

National Energy Retail Regulations or National Regulations means the Regulations made under Part 11;

National Energy Retail Rules or Rules means—

(a) the initial National Energy Retail Rules; and

(ab) Rules made under Part 10 Division 3 Subdivision 2; and

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

(i) the initial National Energy Retail Rules or Rules made under Part 10 Division 3 Subdivision 2; or

(ii) Rules made by it;

natural gas has the same meaning as in the NGL;

natural gas equivalent—see section 2A;

negotiated connection contract means a customer connection contract that is entered into in accordance with section 78;

NEL means the National Electricity Law set out in the Schedule to the National Electricity (South Australia) Act 1996 of South Australia;

NER means the National Electricity Rules as in force from time to time under the NEL;

network charges means charges that a distributor is entitled to charge for customer connection services—

(a) for gas, under the distributor’s access arrangement and Parts 12 and 12A of the NGR; and

(b) for electricity, under Chapters 5A and 6 of the NER;

new connection means a connection established or to be established, in accordance with energy laws, where there is no existing connection;

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

NGR means the National Gas Rules as in force from time to time under Chapter 9 of the NGL;

NMI means a national metering identifier as defined in the NER;

nominated distributor—see section 12;

NSW regulations means regulations made under the National Energy Retail Law (Adoption) Act 2012;

Note—

This definition is an additional New South Wales provision.

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;

participating jurisdiction means a jurisdiction that is a participating jurisdiction by reason of section 9;

payment plan means a plan for—

(a) a hardship customer; or

(b) a residential customer who is not a hardship customer but who is experiencing payment difficulties,

to pay a retailer, by periodic instalments in accordance with the Rules, any amounts payable by the customer for the sale and supply of energy;

prepayment meter market retail contract means a market retail contract in respect of particular premises to which energy is supplied using a prepayment meter system;

prepayment meter system means a device, componentry, software or other mechanism that operates to permit the flow of energy through a meter after prepayment and when activated by a card, code or some other method;

prescribed covered gas means a covered gas, other than natural gas, prescribed for this definition by the National Regulations that has not, for a participating jurisdiction, been excluded by a local instrument of the jurisdiction;

price comparator—see section 62;

Public Register of Authorised Retailers and Exempt Sellers—see section 119;

reconnection—see the definition of re-energisation;

re-energisation or reconnection of premises means the energisation of the premises after their de-energisation;

regulated entity means—

(a) a retailer; or

(b) a distributor; or

(c) any other person identified in the Rules as a regulated entity;

residential customer means a customer who purchases energy principally for personal, household or domestic use at premises;

retail consultation procedure means the consultation procedure prescribed by the Rules;

retail marketer means a retailer or an associate of a retailer;

Retail Market Procedures means—

(a) in the case of electricity—the Retail Market Procedures within the meaning of the NER; and

(b) in the case of gas—the Retail Market Procedures within the meaning of the NGL and made under the NGR;

retailer means a person who is the holder of a retailer authorisation;

retailer authorisation means a retailer authorisation issued under Part 5;

revocation process—see section 120;

shared customer, in relation to a distributor and a retailer, means a person who is a customer of the retailer and whose premises are connected to the distributor’s distribution system;

short term trading market for gas has the same meaning as in the NGL;

small customer—see section 5;

small market offer customer

Note—

This definition is not applicable in New South Wales.

South Australian Minister means the Minister of the Crown in right of South Australia administering Part 2 of the National Energy Retail Law (South Australia) Act 2011 of South Australia;

standard complaints and dispute resolution procedures—see section 81;

standard retail contract means a customer retail contract that takes effect under section 26 as a contract between a small customer and a designated retailer;

standing offer—see section 22;

standing offer prices means all of the tariffs and charges that a retailer charges a small customer for or in connection with the sale and supply of energy to a small customer under a standard retail contract;

Territory means the Australian Capital Territory or the Northern Territory.

this jurisdiction—see the definition of that term in the application Act of each participating 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) tests an approach in relation to customer connection services or customer retail services;

trial Rule—see section 235;

trial waiver—see section 121C;

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;

upper consumption threshold—see sections 5 and 6;

Note—

Provisions for determining and reviewing the consumption thresholds are contained in the National Regulations. Provisions for applying the thresholds are contained in the Rules.

(2) A reference in this Law to the sale and supply of energy includes a reference to the sale or supply of energy.

(3) A reference in this Law to a customer (including a reference to a small customer or a large customer) includes a reference to a prospective customer.

(4) A reference in this Law to the premises of a customer in the context of a customer retail contract or customer connection contract is a reference to the premises of the customer to which the contract relates, but does not include a reference to other premises of the customer.

(5) To avoid doubt, a customer can be a residential customer in respect of particular premises and a business customer in respect of other premises.

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

(6A) (Repealed)

(7) A local instrument may provide that a prescribed covered gas is not a prescribed covered gas in the relevant participating jurisdiction.

s 2: Am 2017 (290), Sch 1 [1]; 2018 No 12, sec 12; 2020 No 37, sec 34; 2021 No 3, sec 25; 2022 No 21, sec 6; 2022 No 22, sec 18; 2023 No 36, sec 71.

2A Natural gas equivalent

2A Natural gas equivalent

(1) A covered gas is a natural gas equivalent if the gas is suitable for use as natural gas and—

(a) the gas has been prescribed by a local instrument for use in a jurisdiction or a specified area in the jurisdiction as a natural gas equivalent; or

(b) the gas is supplied through an existing distribution system or an extension of an existing distribution system.

(2) The following are not natural gas equivalents—

(a) natural gas;

(b) a prescribed covered gas.

(3) In this section—

existing distribution system means a distribution system that—

(a) on the NGL extension date was a natural gas distribution system; and

(b) after the NGL extension date is authorised to haul a covered gas, other than natural gas or a prescribed covered gas;

NGL extension date means the date on which the Statutes Amendment (National Energy Laws) (Other Gases) Act 2023 commenced.

s 2A: Ins 2023 No 36, sec 72.

3 Application of Law, National Regulations and Rules in this jurisdiction

3 Application of Law, National Regulations and Rules in this jurisdiction

This Law, the National Regulations and the Rules apply in this jurisdiction except to the extent provided by or under the application Act of this jurisdiction or any other Act of this jurisdiction.

Note—

This Law, the National Regulations and the Rules are, in their application to a jurisdiction, to be read in conjunction with the application Act and jurisdictional energy legislation of the jurisdiction.

3A Application to prescribed covered gas

3A Application to prescribed covered gas

The National Regulations may modify the way that this Law, the National Regulations and the Rules apply to a prescribed covered gas.

s 3A: Ins 2023 No 36, sec 73.

s 3A (as originally enacted): Am 2022 (712), sec 3. Renumbered as sec 3AZ, 2024 No 47, Sch 2.11.

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.

s 3AZ (previously s 3A): Renumbered 2024 No 47, Sch 2.11. Am 2026 (113), Sch 5[2].

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.

s 3B: Am 2026 (113), Sch 5[3].

4 Meaning of civil penalty provision and conduct provision

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

| Provision | Section heading | | Section 20(2) | Kinds of customer retail contracts | | Section 22(1) and (3) | Obligation to make offer to small customers | | Section 23(1) | Standing offer prices | | Section 25(1) | Adoption of form of standard retail contract | | Section 27 | Obligation to comply with standard retail contract | | Section 38 | Requirement for explicit informed consent for certain transactions | | Section 43(2) and (3)(b) | Customer hardship policies | | Section 50(1) | Payment plans | | Section 53(2) | Energy Marketing Rules | | Section 57 | Contractual arrangements for use of prepayment meter systems | | Section 59(1) | Persons on life support equipment | | Section 63 | AER information gathering powers for pricing guidelines and comparator | | Section 66 | Obligation to provide customer connection services | | Section 69(1) | Adoption of form of deemed standard connection contract | | Section 71(1) | Obligations to comply with deemed standard connection contract and to bill retailer | | Section 88 | Requirement for authorisation or exemption | | Section 103(8) | Deciding transfer application | | Section 105(9) | Surrender of retailer authorisation | | Section 106 | Transfer of customers following surrender | | Section 108 | Transfer of customers following revocation | | Section 112(2) | Conditions | | Section 120(11) | Revocation process—retailer authorisations and exemptions | | Section 143(2)(a) | Compliance requirements following service of RoLR notice | | Section 156 | Compliance with RoLR regulatory information notices | | Section 274(1) | Obligation of regulated entities to provide information and data about compliance | | Section 276(1), (2) and (4) | Compliance audits by regulated entities | | Section 282(1) | Obligation of regulated entities to provide information and data about performance |

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

s 4: Am 2017 (290), Sch 1 [1].

4A Civil penalty amounts for breaches of civil penalty provisions

4A 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) or (c)—

(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 National 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 National 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.

Note—

See section 300A, 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 if the AER, in applying for an order under section 291(2)(a), requests that those provisions be applied in that particular case.

s 4A: Ins 2020 No 37, sec 35.

5 Meaning of customer and associated terms

5 Meaning of customer and associated terms

(1) A customer is a person—

(a) to whom energy is sold for premises by a retailer; or

(b) who proposes to purchase energy for premises from a retailer.

(2) A small customer is a customer—

(a) who is a residential customer; or

(b) who is a business customer who consumes energy at business premises below the upper consumption threshold.

(3) A large customer is a business customer who consumes energy at business premises at or above the upper consumption threshold.

(4)

Note—

This subsection is not applicable in New South Wales.

6 Provisions relating to consumption thresholds for business customers

6 Provisions relating to consumption thresholds for business customers

(1) This section applies for the purposes of the consumption thresholds referred to in section 5.

(2) The NSW regulations may—

(a) determine or make provision for determining the upper consumption thresholds and lower consumption thresholds for business customers; and

(b) prescribe a procedure for reviewing consumption thresholds so determined.

(3) The upper consumption thresholds may apply (in relation to the provision of customer retail services to a business customer) on the basis of an aggregation of 2 or more business premises of a business customer in accordance with the Rules.

(4) Without limitation—

(a) NSW regulations made for the purposes of subsection (2); and

(b) Rules made for the purposes of subsection (3),

may differ in their application to different classes of business customers or different regulatory requirements, or both.

7 Classification and reclassification of customers

7 Classification and reclassification of customers

The Rules may make provision for or with respect to the classification and reclassification of customers, including, for example—

(a) whether a person is a residential customer by reference to whether the person purchases energy principally for personal, household or domestic use at premises; or

(b) whether a business customer is a small customer or a large customer; or

(c) whether a business customer is a small market offer customer.

7A Related bodies corporate

7A 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 7A: Ins 2020 No 37, sec 36.

8 Interpretation generally

8 Interpretation generally

(1) Schedule 2 to the NGL applies to this Law, the National Regulations and the Rules and any other statutory instrument made under this Law in the same way as it applies to the NGL and the regulations, rules and any other statutory instruments made under the NGL.

(2) For that purpose—

(a) (without limiting subsection (1)) a reference in that Schedule to the NGL or NGR (however expressed) is taken to be a reference to this Law or the Rules respectively; and

(b) clauses 2, 29, 40(3) and 52, and Part 7 of that Schedule are taken to be omitted; and

(c) the definition of business day in clause 10 is taken to be omitted.

Note—

See section 320 of this Law which applies instead of clauses 2 and 52 of Schedule 2 to the NGL.

8A Savings and transitionals

8A Savings and transitionals

Schedule 1 has effect.

s 8A: Ins 2018 No 12, sec 13.

Division 2 Matters relating to participating jurisdictions

Division 2 Matters relating to participating jurisdictions

9 Participating jurisdictions

9 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 Energy Retail Law (South Australia) Act 2011 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.

s 9: Subst 2021 No 3, sec 26.

10 Ministers of participating jurisdictions

10 Ministers of participating jurisdictions

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 Energy Retail Law (South Australia) Act 2011 of South Australia or by some other law).

(c) (Repealed)

s 10: Am 2021 No 3, sec 27; 2023 No 36, sec 74.

11 Local area retailers

11 Local area retailers

(1) The regulations under the application Act of a participating jurisdiction must nominate a retailer as a local area retailer for that jurisdiction for the purposes of this Law.

(2) One or more retailers may be nominated for a jurisdiction.

(3) A nomination of a retailer may be made for any or all of the following—

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

(b) specified premises or a specified class of premises;

(c) specified customers or a specified class of customers.

(4) A nomination of a retailer may relate to 1 or more of the following—

(a) electricity;

(b) natural gas and natural gas equivalents;

(c) 1 or more types of prescribed covered gas.

s 11: Am 2023 No 36, sec 75.

12 Nominated distributors

12 Nominated distributors

(1) The regulations under an application Act of a participating jurisdiction may nominate an entity (being an entity that is licensed or otherwise authorised under jurisdictional energy legislation of that jurisdiction) to provide customer connection services as a nominated distributor for the purposes of this Law.

(2) A nomination of an entity may be made for any or all of the following—

(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.

(3) A nomination of an entity has the effect of applying this Law and the Rules (in whole or in part as specified in the regulations and with any specified modifications) to the entity as if it were a distributor within the meaning of this Law, and references in this Law and the Rules to a distributor are accordingly taken to include references to the nominated distributor.

Division 3 National energy retail objective and policy principles

Division 3 National energy retail objective and policy principles

13 National energy retail objective

13 National energy retail objective

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

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

(b) 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 224A.

s 13: Am 2023 No 26, sec 9.

13AA National Regulations may prescribe matters for national energy retail objective

13AA National Regulations may prescribe matters for national energy retail objective

Without limiting Part 11 of this Law, the National Regulations may make provision about a matter relating to the achievement of targets mentioned in section 13(b).

s 13AA: Ins 2023 No 26, sec 10.

13A Innovative trial principles

13A 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 customer connection services or customer retail services;

(b) whether the trial project is likely to contribute to the achievement of the national energy retail 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 energy;

(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 on AEMO's operation of national energy systems and national energy markets or AEMO's facilitation of customer connection services and customer retail services 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 a national energy market;

(ha) whether the licences, authorisations and consents required for the trial project under jurisdictional gas legislation have been obtained or will be obtained;

(i) any other principle prescribed by the National Regulations.

s 13A: Ins 2022 No 22, sec 19. Am 2023 No 36, sec 76.

14 MCE statements of policy principles

14 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 performance and exercise by the AEMC of its functions and powers in—

(a) making a Rule; or

(b) conducting a review under section 232.

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

Division 4 Operation and effect of National Energy Retail Rules

Division 4 Operation and effect of National Energy Retail Rules

15 Rules to have force of law

15 Rules to have force of law

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

Division 5 Application of this Law and the Rules to forms of energy

Division 5 Application of this Law and the Rules to forms of energy

16 Application of Law and Rules to energy

16 Application of Law and Rules to energy

(1) This Law and the Rules apply to—

(a) the sale and supply to customers of 1 or more of the following—

(i) electricity;

(ii) natural gas or natural gas equivalents, or both;

(iii) 1 or more types of prescribed covered gas; and

(b) a retailer to the extent that the retailer sells 1 or more of the following—

(i) electricity;

(ii) natural gas or natural gas equivalents, or both;

(iii) 1 or more types of prescribed covered gas; and

(c) a distributor to the extent that the distributor supplies 1 or more of the following—

(i) electricity;

(ii) natural gas or natural gas equivalents, or both;

(iii) 1 or more types of prescribed covered gas.

(2) References in this Law and the Rules to energy are to be construed accordingly.

(3) Nothing in this section affects the application of provisions of this Law or the Rules to persons who are neither retailers nor distributors.

s 16: Am 2023 No 36, sec 77.

Division 6 Miscellaneous

Division 6 Miscellaneous

17 Extraterritorial operation of Law

17 Extraterritorial operation of Law

It is the intention of the Parliament of this jurisdiction that the operation of this Law is to, as far as possible, include operation in relation to the following—

(a) things situated in or outside the territorial limits of this jurisdiction;

(b) acts, transactions and matters done, entered into or occurring in or outside the territorial limits of this jurisdiction;

(c) things, acts, transactions and matters (wherever situated, done, entered into or occurring) that would, apart from this Law, be governed or otherwise affected by the law of another jurisdiction.

18 Law binds the State

18 Law binds the State

(1) This Law binds the State.

(2) In this section—

State means the Crown in right of this jurisdiction, and includes—

(a) the Government of this jurisdiction; and

(b) a Minister of the Crown in right of this jurisdiction; and

(c) a statutory corporation, or other entity, representing the Crown in right of this jurisdiction.

Part 2 Relationship between retailers and small customers

Part 2 Relationship between retailers and small customers

19 Application of this Part

19 Application of this Part

(1) This Part applies to the relationship between retailers and small customers.

(2) This Part, other than Division 12, does not apply to or affect the relationship between retailers and large customers.

(3) This Part does not apply to business customers of a retailer who aggregate 2 or more business premises in accordance with the Rules.

20 Kinds of customer retail contracts

20 Kinds of customer retail contracts

(1) There are 2 kinds of customer retail contracts, as follows—

(a) standard retail contracts;

(b) market retail contracts.

(2) A retailer cannot provide customer retail services to small customers under any other kind of contract or arrangement.

Note—

This subsection is a civil penalty provision.

(3) This section does not affect deemed customer retail arrangements under Division 9.

(4) This section does not affect RoLR deemed small customer retail arrangements under Part 6.

s 20: Am 2017 (290), Sch 1 [1].

21 Model terms and conditions

21 Model terms and conditions

The Rules must set out model terms and conditions for standard retail contracts (referred to in this Division as the model terms and conditions).

22 Obligation to make offer to small customers

22 Obligation to make offer to small customers

(1) A retailer must make an offer (a standing offer) to provide customer retail services to small customers for whom it is the designated retailer—

(a) at the standing offer prices; and

(b) under the retailer’s form of standard retail contract.

Note—

This subsection is a civil penalty provision.

(1a) If—

(a) a small customer has an interval meter; and

(b) a local instrument of this jurisdiction declares that this subsection applies in relation to this jurisdiction,

then a retailer’s standing offer must include—

(c) such tariff structures as may be prescribed by local instrument; or

(d) if and to the extent that a local instrument declares such Rules to apply—such tariff structures as may be prescribed by the National Energy Retail Rules in connection with the operation of this subsection.

(1b) In connection with the operation of subsection (1a), a local instrument applying under subsection (1a)(c) or the Rules applying under subsection (1a)(d) may include provisions that will allow a small customer to elect that a certain specified tariff will, or will not, apply in relation to the customer.

(2) The Rules may provide for the manner and form in which a standing offer is to be made.

(3) Without limiting the power to make Rules relating to the manner and form in which a standing offer is to be made, a designated retailer must publish the terms and conditions of the standing offer on the retailer’s website.

Note—

This subsection is a civil penalty provision.

(4) A designated retailer must comply with the terms and conditions of the retailer’s standing offer.

(5) A designated retailer is not obliged to make a standing offer to a small customer if the customer’s premises are not, or are not proposed to be, connected to a distributor’s distribution system.

(6) In this section—

interval energy data means interval energy data as defined in the NER;

interval meter means a meter that measures and records interval energy data.

Note—

Section 31 provides for the satisfaction of a designated retailer’s obligation to make a standing offer by making an offer to certain small customers to sell energy under a market retail contract.

s 22: Am 2013 No 69, sec 7.

23 Standing offer prices

23 Standing offer prices

(1) Publication of standing offer prices A retailer must publish its standing offer prices on its website, and the standing offer prices so published remain in force until varied in accordance with this section.

Notes—

(2) Variation of standing offer prices A retailer may vary the standing offer prices from time to time, but a variation has no effect unless—

(a) it is made in accordance with the requirements (if any) of jurisdictional energy legislation; and

(b) the variation (or the standing offer prices as varied) is published on the retailer’s website.

(3) Publication and notification of variation A retailer must—

(a) publish the variation (or the standing offer prices as varied) on the retailer’s website; and

(b) publish a notice about the variation in a newspaper circulating in the participating jurisdictions in which the retailer has small customers, notifying customers that—

(i) there has been a variation; and

(ii) the variation (or the standing offer prices as varied) is published on the retailer’s website; and

(c) inform each affected customer of the variation when the retailer sends the next bill to the customer.

(4) Commencement of variation on specified date Unless subsection (5) applies, a variation of the standing offer prices takes effect on and from the date specified in the variation.

(5) Limitations on commencement of variation A variation of the standing offer prices takes effect—

(a) if the date specified in the variation is before or within the period of 6 months starting with the date the last variation took effect (or, if the standing offer prices have not previously been varied, the period of 6 months since the date of publication of the standing offer prices)—on the date that immediately follows the 6-month period; or

(b) if the date specified in the variation is before or within the period of 10 business days starting with the first business day after the date on which the variation was published—on the date that immediately follows the 10-day period.

If both paragraphs (a) and (b) are applicable and the dates mentioned in those paragraphs are different, the variation takes effect on the later of those dates.

Note—

A retailer is not subject to subsection (5) in respect of a variation of its standing offer prices as a result of a RoLR cost recovery scheme under Part 6 (see section 167(6)).

(6) Notification to AER A retailer must, as soon as practicable, notify the AER of details of the standing offer prices and any variation of the standing offer prices in the manner and form required by the AER Retail Pricing Information Guidelines.

(7) Publication by AER The AER must, as soon as practicable after being notified by a retailer, publish the standing offer prices or any variation of the standing offer prices on the AER’s website, but failure to do so does not affect the operation or effect of the standing offer prices or any variation.

24 Presentation of standing offer prices

24 Presentation of standing offer prices

(1) A retailer must—

(a) present its standing offer prices (including any variation of those prices) in accordance with the AER Retail Pricing Information Guidelines; and

(b) without limitation, present those prices in accordance with those guidelines when publishing, advertising or notifying the AER of those prices or any variation.

(2) The retailer must present its standing offer prices (including any variation of those prices) prominently on its website and in any other relevant material provided by the retailer in accordance with those guidelines.

Note—

See section 61 for the AER Retail Pricing Information Guidelines.

25 Adoption of form of standard retail contract

25 Adoption of form of standard retail contract

(1) Adoption and publication A retailer must adopt a form of standard retail contract and publish it on the retailer’s website.

Note—

This subsection is a civil penalty provision.

(2) Rules The Rules may make provision for or with respect to the adoption, form and contents of forms of standard retail contracts, and in particular may provide for the manner of adoption and publication of forms of standard retail contracts by retailers.

(3) Adoption without alteration except as permitted or required A retailer’s form of standard retail contract—

(a) must adopt the relevant model terms and conditions with no alterations, other than permitted alterations or required alterations; and

(b) if there are any required alterations—must include those required alterations.

(4) Permitted alterations Permitted alterations are—

(a) alterations specifying details relating to identity and contact details of the retailer; and

(b) minor alterations that do not change the substantive effect of the model terms and conditions; and

(c) alterations of a kind specified or referred to in the Rules.

(5) Required alterations Required alterations are—

(a) alterations that the Rules require to be made to the retailer’s form of standard retail contract in relation to matters relating to specific jurisdictions; and

(b) alterations of a kind specified or referred to in the Rules.

(6) Definition In this section—

alterations includes omissions and additions.

26 Formation of standard retail contract

26 Formation of standard retail contract

(1) A designated retailer’s form of standard retail contract takes effect as a contract between the retailer and a small customer when the customer—

(a) requests the provision of customer retail services at premises under the retailer’s standing offer; and

(b) complies with the requirements specified in the Rules as pre-conditions to the formation of standard retail contracts.

(2) A designated retailer cannot decline to enter into a standard retail contract if the customer makes the request and complies with the requirements referred to in subsection (1).

27 Obligation to comply with standard retail contract

27 Obligation to comply with standard retail contract

A designated retailer must comply with the obligations imposed on the retailer under the terms and conditions of a standard retail contract between the retailer and a small customer.

Note—

This section is a civil penalty provision.

28 Variation of standard retail contract

28 Variation of standard retail contract

(1) Variation of form of standard retail contract—permitted alterations A retailer may vary the terms and conditions of the retailer’s form of standard retail contract by making permitted alterations.

(2) Variation of form of standard retail contract—required alterations A retailer must vary the terms and conditions of the retailer’s form of standard retail contract by making required alterations, and must do so by the date specified in the relevant Rule referred to in section 237(4).

(3) Permitted alterations Permitted alterations are—

(a) alterations specifying details relating to identity and contact details of the retailer; and

(b) minor alterations that do not change the substantive effect of the model terms and conditions; and

(c) alterations of a kind specified or referred to in the Rules.

(4) Required alterations Required alterations are—

(a) alterations that the Rules require to be made to the retailer’s form of standard retail contract in relation to matters relating to specific jurisdictions; and

(b) alterations to a term or condition that is already adopted by the retailer so as to make the adopted term or condition consistent with the model terms and conditions as currently required by the Rules; and

(c) alterations of a kind specified or referred to in the Rules.

(5) When variation takes effect on existing contracts A variation of the retailer’s form of standard retail contract takes effect as a variation of an existing standard retail contract between the retailer and a customer on and from the date on which the retailer publishes the variation on the retailer’s website or a later date specified in the published variation.

(6) Definition In this section—

alterations includes omissions and additions.

29 Standard retail contract to be consistent with model terms and conditions

29 Standard retail contract to be consistent with model terms and conditions

(1) The terms and conditions (whether original or varied) of a standard retail contract have no effect to the extent of any inconsistency with the model terms and conditions as currently in force and any required alterations.

(2) If there is such an inconsistency, the model terms and conditions or required alterations (as the case requires) apply instead to the extent of the inconsistency.

30 Duration of standard retail contract

30 Duration of standard retail contract

A standard retail contract between a designated retailer and a small customer for the provision of customer retail services to the premises of the small customer remains in force until the standard retail contract is terminated in accordance with this Law, the Rules or the contract.

31 Note—

31

Note—

This section is not applicable in New South Wales.

32 Rules

32 Rules

Without limiting the power to make Rules, the Rules may make provision for or with respect to standard retail contracts generally, including but not limited to the following—

(a) procedures for small customers requesting the provision of customer retail services in accordance with the standing offer;

(b) information that retailers may require of small customers requesting the provision of customer retail services in accordance with the standing offer;

(c) the responsibilities of retailers in responding to requests for the provision of customer retail services in accordance with the standing offer;

(d) the conditions to be complied with by small customers in respect of the formation of standard retail contracts.

33 Formation of market retail contracts

33 Formation of market retail contracts

A small customer and a retailer may, subject to and in accordance with this Division and section 147, negotiate and enter into a market retail contract for the provision of—

(a) customer retail services; and

(b) any other services,

as agreed between the small customer and the retailer.

34 Minimum requirements for market retail contracts

34 Minimum requirements for market retail contracts

(1) The Rules may set out—

(a) minimum requirements that are to apply in relation to small customers who purchase energy under a market retail contract; and

(b) minimum requirements that are to apply in relation to the terms and conditions of market retail contracts.

(2) A retailer must ensure that the terms and conditions of a market retail contract are not inconsistent with the applicable minimum requirements set out in the Rules. However, this subsection does not prevent a higher level of service than those minimum requirements from being provided.

(3) A market retail contract may contain terms and conditions dealing with other matters, other than terms or conditions that the Rules provide must not be included in the contract.

(4) A market retail contract must contain additional terms or conditions that the Rules require to be included in the contract in relation to matters relating to specific jurisdictions.

(5) A retailer who sells energy to a small customer under a market retail contract must comply with the requirements of the Rules referred to in subsection (1).

35 Variation of market retail contract

35 Variation of market retail contract

Any variation of the terms and conditions of a market retail contract must not be inconsistent with the requirements of the Rules in relation to the variation of market retail contracts.

36 Market retail contract to be consistent with minimum requirements of the Rules

36 Market retail contract to be consistent with minimum requirements of the Rules

(1) The terms and conditions (whether original or varied) of a market retail contract have no effect to the extent of any inconsistency with any relevant minimum requirements of the Rules as currently in force.

(2) If there is such an inconsistency, the minimum requirements apply instead to the extent of the inconsistency (unless the terms and conditions provide for a higher level of service to the customer).

37 Presentation of market offer prices

37 Presentation of market offer prices

(1) A retailer must—

(a) present its market offer prices (including any variation of those prices) in accordance with the AER Retail Pricing Information Guidelines; and

(b) without limitation, present those prices in accordance with those guidelines when publishing, advertising or notifying the AER of those prices or any variation.

(2) The retailer must present its market offer prices (including any variation of those prices) prominently on its website and in any other relevant material provided by the retailer in accordance with those guidelines.

Note—

See section 61 for the AER Retail Pricing Information Guidelines.

Division 4A

Divisions 4A, 4B

37AA–37E (Repealed)

pt 2, div 4A: Rep 2017 (290), Sch 1 [1].

s 37AA: Ins 2014 (400), Sch 1 [1]. Rep 2017 (290), Sch 1 [1].

s 37A: Am 2014 (400), Sch 1 [2]. Rep 2017 (290), Sch 1 [1].

s 37B: Am 2014 (400), Sch 1 [3]. Rep 2017 (290), Sch 1 [1].

s 37C: Am 2014 (400), Sch 1 [3] [4]; 2015 No 36, Sch 1. Rep 2017 (290), Sch 1 [1].

s 37D: Am 2014 (400), Sch 1 [3]. Rep 2017 (290), Sch 1 [1].

pt 2, div 4B: Ins 2013 (168), cl 9. Rep 2013 (168), cl 9 (subst 2014 (408), cl 3).

s 37E: Ins 2013 (168), cl 9. Am 2013 No 111, Sch 3.16. Rep 2013 (168), cl 9 (subst 2014 (408), cl 3).

38 Requirement for explicit informed consent for certain transactions

38 Requirement for explicit informed consent for certain transactions

A retailer must obtain the explicit informed consent of a small customer for the following transactions—

(a) except as provided by sections 103(7), 105(8) and under Part 6, the transfer of the customer to the retailer from another retailer;

(b) the entry by the customer into a market retail contract with the retailer;

(c) without limiting paragraph (b), the entry by the customer into a prepayment meter market retail contract with the retailer;

(d) other transactions specified in this Law or the Rules as requiring explicit informed consent.

Notes—

39 Nature of explicit informed consent

39 Nature of explicit informed consent

(1) Explicit informed consent to a transaction is consent given by a small customer to a retailer where—

(a) the retailer, or a person acting on behalf of the retailer, has clearly, fully and adequately disclosed all matters relevant to the consent of the customer, including each specific purpose or use of the consent; and

(b) the customer gives the consent to the transaction in accordance with subsection (2); and

(c) any requirements prescribed by the Rules for the purposes of this subsection have been complied with.

(2) Explicit informed consent requires the consent to be given by the small customer—

(a) in writing signed by the customer; or

(b) verbally, so long as the verbal consent is evidenced in such a way that it can be verified and made the subject of a record under section 40; or

(c) by electronic communication generated by the customer.

40 Record of explicit informed consent

40 Record of explicit informed consent

(1) A retailer must—

(a) create a record of each explicit informed consent required by this Division and provided by a small customer; and

(b) retain the record for at least 2 years.

(2) The record must be in such a format and include such information as will enable—

(a) the AER to verify the retailer’s compliance with the relevant requirements of this Part and the Rules relating to explicit informed consent; and

(b) the retailer to answer enquiries from a small customer relating to the customer’s explicit informed consent.

(3) A retailer must, on request by a small customer and at no charge, provide the customer with access to a copy of the record of any explicit informed consent given by the customer and then retained by the retailer.

41 No or defective explicit informed consent

41 No or defective explicit informed consent

(1) A transaction referred to in section 38 between a retailer and small customer is void if it is established, in accordance with subsection (2) and any applicable provisions of the Rules, that explicit informed consent as required by this Division was not obtained.

(2) It is established that the required explicit informed consent was not obtained if—

(a) the customer raises the issue with the retailer either by asserting that the consent was not obtained or by requesting production of a record of the consent; and

(b) the issue is so raised within 12 months after the date of the transaction; and

(c) the retailer—

(i) admits that the consent was not obtained; or

(ii) does not produce a satisfactory record of the informed consent as soon as practicable, but within 10 business days, after the issue is so raised.

(3) Subject to subsections (4) and (5), the retailer cannot recover any amount for any energy supplied as a result of the void transaction.

(4) If the void transaction did not involve the transfer of the customer to the retailer from another retailer, the customer is only liable to pay the retailer any charges that would have been payable for the sale and supply of energy if the void transaction had not occurred.

(5) If the void transaction did involve the transfer of the customer to the retailer (the new retailer) from another retailer (the original retailer)—

(a) the customer is (subject to paragraph (b)) liable to pay the original retailer all charges for the sale and supply of energy as if the void transaction had not occurred and the sale and supply had occurred with the original retailer being the customer’s retailer; and

(b) to the extent that the customer has paid the new retailer charges for the sale and supply of energy as a consequence of the void transaction—

(i) the customer is entitled to set off the amount of those payments against any amounts payable under paragraph (a); and

(ii) the new retailer must pay the set off amounts to the original retailer; and

(iii) the original retailer is entitled to recover those set off amounts from the new retailer in a court of competent jurisdiction; and

(c) nothing in this section prevents the original retailer from proceeding by action for loss or damage suffered because of the void transaction; and

(d) the customer is not liable to the new retailer for any loss or damage arising because the transaction is void or arising from payments the new retailer has to pay the original retailer because the transaction is void.

42 Rules

42 Rules

The Rules may make provision for or with respect to explicit informed consent in relation to small customers, including but not limited to procedures for establishing that explicit informed consent as required was not obtained and the consequences of not obtaining explicit informed consent as required.

43 Customer hardship policies

43 Customer hardship policies

(1) The purpose of a retailer’s customer hardship policy is to identify residential customers experiencing payment difficulties due to hardship and to assist those customers to better manage their energy bills on an ongoing basis.

(2) A retailer must—

(a) within 3 months of being granted a retailer authorisation—

(i) develop a customer hardship policy in respect of residential customers of the retailer; and

(ii) submit it to the AER for approval under this Division; and

(b) publish the policy, as approved by the AER, on the retailer’s website as soon as practicable after it has been approved; and

(c) maintain and implement the policy.

Note—

This subsection is a civil penalty provision.

(3) If, as a result of the exercise of the AER’s functions and powers under section 204, the AER forms the view that a retailer’s customer hardship policy requires review—

(a) the AER may direct the retailer to review the policy and make variations in accordance with any requirements set out by the AER; and

(b) the retailer must—

(i) vary the policy in accordance with the AER’s requirements; and

(ii) submit it to the AER for approval under this Division; and

(iii) publish the policy, as approved by the AER, on the retailer’s website as soon as practicable after it has been approved; and

(iv) maintain and implement the policy.

Note—

Subsection (3)(b) is a civil penalty provision.

(4) A retailer may vary its customer hardship policy independently of a direction referred to in subsection (3) but only if the variation has been approved by the AER under this Division and the varied policy has been published on the retailer’s website after the AER has approved the variation under this Division.

(5) A reference in this Division to varying a customer hardship policy extends to replacing a policy with another customer hardship policy.

44 Minimum requirements for customer hardship policy

44 Minimum requirements for customer hardship policy

The minimum requirements for a customer hardship policy of a retailer are that it must contain—

(a) processes to identify residential customers experiencing payment difficulties due to hardship, including identification by the retailer and self-identification by a residential customer; and

(b) processes for the early response by the retailer in the case of residential customers identified as experiencing payment difficulties due to hardship; and

(c) flexible payment options (including a payment plan and Centrepay) for the payment of energy bills by hardship customers; and

(d) processes to identify appropriate government concession programs and appropriate financial counselling services and to notify hardship customers of those programs and services; and

(e) an outline of a range of programs that the retailer may use to assist hardship customers; and

(f) processes to review the appropriateness of a hardship customer’s market retail contract in accordance with the purpose of the customer hardship policy; and

(g) processes or programs to assist customers with strategies to improve their energy efficiency, where such processes or programs are required by a local instrument; and

(h) any variations specified or of a kind specified by the AER; and

(i) any other matters required by the Rules.

45 Approval of customer hardship policy or variation

45 Approval of customer hardship policy or variation

(1) The AER must approve a customer hardship policy (or variation) submitted to the AER for approval if the AER is satisfied that the policy (or the policy as varied)—

(a) contains the minimum requirements for a customer hardship policy set out in section 44; and

(b) will or is likely to contribute to the achievement of the purpose referred to in section 43(1).

(2) If it is not so satisfied, the AER may—

(a) indicate to the retailer in what respects it considers the customer hardship policy (or variation) as submitted is deficient and request the retailer to submit another customer hardship policy (or variation); or

(b) approve the customer hardship policy (or variation) with alterations agreed to by the retailer so that the AER is satisfied as to the matters referred to in subsection (1)(a) and (b).

(3) The AER must, in considering whether to approve a customer hardship policy under subsection (1), have regard to the following principles—

(a) that the supply of energy is an essential service for residential customers;

(b) that retailers should assist hardship customers by means of programs and strategies to avoid de-energisation (or disconnection) solely due to an inability to pay energy bills;

(c) that de-energisation (or disconnection) of premises of a hardship customer due to inability to pay energy bills should be a last resort option;

(d) that residential customers should have equitable access to hardship policies, and that those policies should be transparent and applied consistently.

46 Obligation of retailer to communicate customer hardship policy

46 Obligation of retailer to communicate customer hardship policy

A retailer must, in accordance with the Rules, inform a residential customer of the retailer’s customer hardship policy where it appears to the retailer that non-payment of an energy bill is due to the customer experiencing payment difficulties due to hardship.

47 General principle regarding de-energisation (or disconnection) of premises of hardship customers

47 General principle regarding de-energisation (or disconnection) of premises of hardship customers

A retailer must give effect to the general principle that de-energisation (or disconnection) of premises of a hardship customer due to inability to pay energy bills should be a last resort option.

48 Consistency of market retail contract with hardship policy

48 Consistency of market retail contract with hardship policy

(1) This section applies if a residential customer who is on a market retail contract is or becomes a hardship customer.

(2) The terms and conditions of the market retail contract have no effect to the extent of any inconsistency with the application of the retailer’s customer hardship policy to that customer.

(3) The retailer must ensure that the customer may continue to be provided with customer retail services under a customer retail contract in accordance with the Rules.

49 Rules

49 Rules

(1) The Rules may make provision for or with respect to—

(a) hardship customers; and

(b) the development, submission, approval, publication, maintenance and implementation of customer hardship policies and variations of customer hardship policies.

(2) The AEMC must, in addition to section 236, have regard to the purpose set out in section 43(1) when making Rules as referred to in subsection (1)(b).

Division 7 Payment plans

Division 7 Payment plans

50 Payment plans

50 Payment plans

(1) A retailer must offer and apply payment plans for—

(a) hardship customers; and

(b) other residential customers experiencing payment difficulties if the customer informs the retailer in writing or by telephone that the customer is experiencing payment difficulties or the retailer otherwise believes the customer is experiencing repeated difficulties in paying the customer’s bill or requires payment assistance.

Note—

This subsection is a civil penalty provision.

(2) A retailer must comply with applicable requirements of the Rules relating to payment plans including how they are offered, but need not provide a payment plan in circumstances specified in the Rules.

51 Debt recovery

51 Debt recovery

A retailer must not commence proceedings for the recovery of a debt relating to the sale and supply of energy from a residential customer if—

(a) the customer continues to adhere to the terms of a payment plan or other agreed payment arrangement; or

(b) the retailer has failed to comply with the requirements of—

(i) its customer hardship policy in relation to that customer; or

(ii) this Law and the Rules relating to non-payment of bills, payment plans and assistance to hardship customers or residential customers experiencing payment difficulties.

52 Rules

52 Rules

The Rules may make provision for or with respect to payment plans for small customers.

Division 8 Energy marketing

Division 8 Energy marketing

Note—

The Telecommunications Act 1997, the Do Not Call Register Act 2006 and the Australian Consumer Law set out in Schedule 2 to the Competition and Consumer Act 2010 of the Commonwealth may also apply to persons carrying out energy marketing activities.

53 Energy Marketing Rules

53 Energy Marketing Rules

(1) The Rules may make provision for or with respect to the carrying out of energy marketing activities. Any such rules are referred to as the Energy Marketing Rules.

(2) A person who carries out energy marketing activities must comply with the Energy Marketing Rules.

Note—

This subsection is a civil penalty provision.

(3) Without limiting subsection (2), a failure of a person who is an associate of a retailer or distributor to comply with the Energy Marketing Rules is taken to be a failure of the retailer or distributor (as the case may be) to comply with the Energy Marketing Rules.

Division 9 Deemed customer retail arrangements

Division 9 Deemed customer retail arrangements

54 Deemed customer retail arrangement for new or continuing customer without customer retail contract

54 Deemed customer retail arrangement for new or continuing customer without customer retail contract

(1) An arrangement (a deemed customer retail arrangement) is taken to apply between the financially responsible retailer for energised premises and—

(a) a move-in customer; or

(b) a carry-over customer.

(2) The deemed customer retail arrangement comes into operation when—

(a) in the case of a move-in customer—the customer starts consuming energy at the premises; or

(b) in the case of a carry-over customer—the customer’s previously current retail contract terminates.

(3) The deemed customer retail arrangement ceases to be in operation if a customer retail contract is formed in relation to the premises, but this subsection does not affect any rights or obligations that have already accrued under the deemed customer retail arrangement.

(4) Subsection (1) does not apply where the customer consumes energy at the premises by fraudulent or illegal means.

(5) If the customer consumes energy at the premises by fraudulent or illegal means—

(a) the customer is nevertheless liable to pay the standing offer prices of the financially responsible retailer for the premises in respect of the energy so consumed; and

(b) the financially responsible retailer may estimate and issue a bill for the charges payable and recover those charges in accordance with those standing offer prices as a debt in a court of competent jurisdiction; and

(c) payment or recovery of any such charges is not a defence to an offence relating to obtaining energy by fraudulent or illegal means.

(6) A move-in customer or carry-over customer is required to contact a retailer and take appropriate steps to enter into a customer retail contract as soon as practicable.

(6A) (Repealed)

s 54: Am 2014 (400), Sch 1 [5]; 2017 (290), Sch 1 [1].

55 Terms and conditions of deemed customer retail arrangements

55 Terms and conditions of deemed customer retail arrangements

(1) The terms and conditions of a deemed customer retail arrangement are the terms and conditions of the retailer’s standard retail contract.

(2) The prices applicable to a deemed customer retail arrangement are the retailer’s standing offer prices.

(2A) (Repealed)

(3) The Rules may make provision for or with respect to deemed customer retail arrangements, and in particular may supplement or modify the terms and conditions of deemed customer retail arrangements.

s 55: Am 2014 (400), Sch 1 [6]; 2017 (290), Sch 1 [1].

Division 10 Prepayment meter systems

Division 10 Prepayment meter systems

56 Use of prepayment meter systems only in jurisdictions where permitted

56 Use of prepayment meter systems only in jurisdictions where permitted

(1) A person may sell energy using a prepayment meter system only within jurisdictions where its use is permitted under subsection (2).

(2) A local instrument of a participating jurisdiction may permit the sale of energy to small customers using a prepayment meter system within that jurisdiction.

57 Contractual arrangements for use of prepayment meter systems

57 Contractual arrangements for use of prepayment meter systems

(1) A retailer may only provide customer retail services to small customers using a prepayment meter system under a market retail contract.

(2) Accordingly, a retailer must not provide customer retail services to small customers using a prepayment meter system under a standard retail contract.

Note—

This section is a civil penalty provision.

58 Use of prepayment meter systems to comply with energy laws

58 Use of prepayment meter systems to comply with energy laws

(1) A retailer who provides customer retail services to a small customer using a prepayment meter system must comply with the provisions of the energy laws relating to the use of prepayment meter systems.

(2) Without limiting subsection (1), a retailer who provides customer retail services to a small customer using a prepayment meter system must ensure that the prepayment meter market retail contract complies with the requirements for both—

(a) market retail contracts set out in the Rules, except to the extent a contrary intention is expressed in the Rules; and

(b) prepayment meter market retail contracts set out in the Rules.

59 Persons on life support equipment

59 Persons on life support equipment

(1) A retailer must not enter into a prepayment meter market retail contract with a small customer in relation to premises where one or more persons require life support equipment.

Note—

This subsection is a civil penalty provision.

(2) If a small customer with a prepayment meter market retail contract in relation to premises notifies the retailer that one or more persons at the premises require life support equipment, the retailer must make immediate arrangements for—

(a) the removal of the prepayment meter system at no cost to the small customer; and

(b) the installation of a standard meter at no cost to the small customer; and

(c) the provision of information to the small customer about, and a general description of, the customer retail contracts available to the customer.

(3) In this section—

installation of a standard meter to replace a prepayment meter system includes the conversion of the prepayment meter system to a standard operating mode so that the prepayment meter system operates as a standard meter;

removal of a prepayment meter system includes rendering the system non-operational;

standard meter, in relation to a particular small customer, means a metering installation of the type that would ordinarily be installed at the premises of the customer.

60 Rules

60 Rules

The Rules may make provision for or with respect to the provision of customer retail services involving the use of a prepayment meter system.

Division 11 AER Retail Pricing Information Guidelines and price comparator

Division 11 AER Retail Pricing Information Guidelines and price comparator

61 AER Retail Pricing Information Guidelines for presentation of standing and market offer prices

61 AER Retail Pricing Information Guidelines for presentation of standing and market offer prices

(1) The AER may, in accordance with the retail consultation procedure, make and amend guidelines (AER Retail Pricing Information Guidelines).

(2) The purpose of the AER Retail Pricing Information Guidelines is to provide guidance to retailers in the presentation of standing offer prices and market offer prices, and thereby assist small customers to consider and compare standing offer prices and market offer prices offered by retailers.

(3) Without limitation, the AER Retail Pricing Information Guidelines may specify any or all of the following—

(a) the manner and form in which details of standing offer prices and market offer prices are to be presented when publishing, advertising or notifying the AER of those prices or any variation;

(b) the types of market offers to be provided for the purposes of the price comparator, including without limitation, by reference to areas, classes of small customers or tariff classes;

(c) any additional matters that the AER considers necessary or convenient to assist customers to consider and compare standing offer prices and market offer prices offered by retailers.

62 Price comparator

62 Price comparator

(1) This section applies in relation to this jurisdiction only if and to the extent a local instrument of this jurisdiction declares that this section applies in relation to this jurisdiction.

(2) The AER must develop and make available on a website a price comparator.

(3) The purpose of a price comparator is to assist a small customer to compare—

(a) the standing offer price available to that customer; and

(b) market offer prices that are generally available to classes of small customers in this jurisdiction,

in accordance with the AER Retail Pricing Information Guidelines.

(4) A price comparator must make clear to small customers that it only provides a guide.

(5) A price comparator may, in addition to the information about the price of the standing offers and market offers listed in the comparator, include such other information as the AER considers will achieve the purpose of a price comparator.

(6) Nothing in this Law prevents the AER developing and making available a single price comparator for a jurisdiction that compares prices for the provision of both electricity and gas.

(7) The AER must update the price comparator information as soon as practicable after a retailer informs the AER of any variations to the retailer’s standing offer price or relevant market offer price.

(8) In the development and updating of a price comparator, the AER must undertake such consultation as it considers appropriate.

(9) A difference between information made available under a price comparator and a retailer’s standing offer price, market offer prices or any variation to those prices does not affect the operation of that retailer’s prices or variations to those prices.

Note—

For example, there may be a delay in updating information on the price comparator service.

63 AER information gathering powers for pricing guidelines and comparator

63 AER information gathering powers for pricing guidelines and comparator

A retailer must submit to the AER, in the manner and form (including by the date or dates) required by the AER Retail Pricing Information Guidelines, information and data relating to—

(a) the presentation of standing offer prices and market offer prices that are generally available to classes of small customers in a jurisdiction (including any variation of the prices); and

(b) if and to the extent a local instrument of this jurisdiction so declares—the purposes of a price comparator for this jurisdiction.

Notes—

63A

63A (Repealed)

Division 12 Large customers—responsibility for energy consumed

Division 12 Large customers—responsibility for energy consumed

64 Large customer consuming energy at premises

64 Large customer consuming energy at premises

If a large customer consumes energy at premises without an appropriate arrangement between the customer and a retailer for payment of charges for the energy—

(a) the financially responsible retailer is entitled to charge the customer an amount for the energy at the rate the retailer considers would have been charged had such an appropriate arrangement been in place; and

(b) that amount, to the extent it is not paid to the retailer, is a debt owing by the customer to the retailer and may be recovered in a court of competent jurisdiction.

Part 3 Relationship between distributors and customers

Part 3 Relationship between distributors and customers

65 Application of this Part

65 Application of this Part

This Part applies to the relationship between distributors and customers.

Note—

The term “customer” covers both small customers and large customers.

66 Obligation to provide customer connection services

66 Obligation to provide customer connection services

(1) A distributor must, subject to and in accordance with the energy laws, provide customer connection services for the premises of a customer—

(a) who requests those services; and

(b) whose premises are connected, or who is seeking to have those premises connected, to the distributor’s distribution system.

Note—

The Rules may provide that a retailer may arrange customer connection services.

(2) The customer connection services must be provided to a customer in accordance with the relevant customer connection contract.

Note—

This section is a civil penalty provision.

67 Kinds of customer connection contracts

67 Kinds of customer connection contracts

There are 3 kinds of customer connection contracts, as follows—

(a) deemed standard connection contracts, which are for—

(i) small customers; and

(ii) large customers for whom there is no applicable deemed AER approved standard connection contract;

(b) deemed AER approved standard connection contracts, which are for large customers;

(c) negotiated connection contracts, which are for small and large customers.

Note—

Where a new connection or connection alteration is required, the connection contract requirements are contained—

(a) for electricity—in Chapter 5A of the NER; or

(b) for gas—in Part 12A of the NGR.

68 Model terms and conditions

68 Model terms and conditions

The Rules must set out model terms and conditions for deemed standard connection contracts (referred to in this Division as the model terms and conditions).

69 Adoption of form of deemed standard connection contract

69 Adoption of form of deemed standard connection contract

(1) Adoption and publication A distributor must adopt a form of deemed standard connection contract and publish it on the distributor’s website.

Note—

This subsection is a civil penalty provision.

(2) Rules The Rules may make provision for or with respect to the adoption, form and contents of forms of deemed standard connection contracts, and in particular may provide for the manner of adoption and publication of forms of deemed standard connection contracts by distributors.

(3) Adoption without alteration except as permitted or required A distributor’s form of deemed standard connection contract—

(a) must adopt the relevant model terms and conditions with no alterations, other than permitted alterations or required alterations; and

(b) if there are any required alterations—must include those required alterations.

(4) Permitted alterations Permitted alterations are—

(a) alterations specifying details relating to identity and contact details of the distributor; and

(b) minor alterations that do not change the substantive effect of the model terms and conditions; and

(c) alterations of a kind specified or referred to in the Rules.

(5) Required alterations Required alterations are—

(a) alterations that the Rules require to be made to the distributor’s form of deemed standard connection contract in relation to matters relating to specific jurisdictions; and

(b) alterations to a term or condition that is already adopted by the distributor so as to make the adopted term or condition consistent with the model terms or conditions as currently required by the Rules; and

(c) alterations of a kind specified or referred to in the Rules.

(6) Definition In this section—

alterations includes omissions and additions.

70 Formation of deemed standard connection contract

70 Formation of deemed standard connection contract

(1) A contract in the form of a distributor’s deemed standard connection contract under section 69 is taken to be entered into, by the distributor and a customer, as set out in this section.

(2) In the case of a new connection or a connection alteration, a distributor’s form of deemed standard connection contract (including any additional terms and conditions relating to the new connection or connection alteration) takes effect as a contract between the distributor and the customer on acceptance by the customer of the distributor’s connection offer in accordance with the requirements under—

(a) in the case of electricity—Chapter 5A of the NER; or

(b) in the case of gas—Part 12A of the NGR.

(3) In the case of an existing connection that is not the subject of a connection alteration, a distributor’s form of deemed standard connection contract takes effect as a contract between the distributor and the customer when—

(a) in the case of an existing connection at premises that are not energised—the customer’s premises become re-energised (or reconnected); or

(b) in the case of an existing connection at premises that are energised—the customer commences to take supply of energy at those premises.

(4) In the case of an existing connection where—

(a) a customer has been reclassified as a small customer for particular premises; and

(b) a deemed AER approved standard connection contract applied in relation to the customer and the same premises immediately before the reclassification,

the deemed AER approved standard connection contract terminates and the distributor’s form of deemed standard connection contract takes effect between the customer and the distributor when the customer receives notice of the reclassification.

(5) Subsections (2), (3) and (4) do not apply if a negotiated connection contract already exists between the distributor and the customer in relation to the premises concerned.

(6) Subsections (2) and (3) do not apply if the customer is a large customer and there is a deemed AER approved standard connection contract between the distributor and the customer in relation to the premises concerned.

71 Obligations to comply with deemed standard connection contract and to bill retailer

71 Obligations to comply with deemed standard connection contract and to bill retailer

(1) A distributor must comply with the obligations imposed on the distributor under the terms and conditions of a deemed standard connection contract between the distributor and a customer.

Note—

This subsection is a civil penalty provision.

(2) Except in relation to a new connection or a connection alteration, a distributor must not bill a small customer on a deemed standard connection contract, but must render a statement of charges to the customer’s retailer in accordance with the energy laws.

72 Variation of deemed standard connection contract

72 Variation of deemed standard connection contract

(1) Variation of form of deemed standard connection contract—permitted alterations A distributor may vary the terms and conditions of the distributor’s form of deemed standard connection contract by making permitted alterations.

(2) Variation of form of deemed standard connection contract—required alterations A distributor must vary the terms and conditions of the distributor’s form of deemed standard connection contract by making required alterations, and must do so by the date specified in the relevant Rule referred to in section 237(4).

(3) Permitted alterations Permitted alterations are—

(a) alterations specifying details relating to identity and contact details of the distributor; and

(b) minor alterations that do not change the substantive effect of the model terms and conditions; and

(c) alterations of a kind specified or referred to in the Rules.

(4) Required alterations Required alterations are—

(a) alterations that the Rules require to be made to the distributor’s form of deemed standard connection contract in relation to matters relating to specific jurisdictions; and

(b) alterations to a term or condition that is already adopted by the distributor so as to make the adopted term or condition consistent with the model terms or conditions as currently required by the Rules; and

(c) alterations of a kind specified or referred to in the Rules.

(5) When variation takes effect on existing contracts A variation of the distributor’s form of deemed standard connection contract takes effect as a variation of an existing standard connection contract between the distributor and a customer on and from the date on which the distributor publishes the variation on the distributor’s website.

(6) Definition In this section—

alterations includes omissions and additions.

73 Deemed standard connection contract to be consistent with model terms and conditions

73 Deemed standard connection contract to be consistent with model terms and conditions

(1) The terms and conditions (whether original or varied) of a deemed standard connection contract have no effect to the extent of any inconsistency with the model terms and conditions as currently in force or any required alterations.

(2) If there is such an inconsistency, the model terms and conditions or required alterations (as the case requires) apply instead to the extent of the inconsistency.

74 Duration of deemed standard connection contract

74 Duration of deemed standard connection contract

A deemed standard connection contract between a distributor and a customer remains in force until—

(a) a deemed AER approved standard connection contract or a negotiated connection contract in respect of the premises comes into force; or

(b) the deemed standard connection contract is terminated in accordance with the terms and conditions of the contract.

75 Submission and approval of form of standard connection contracts for large customers

75 Submission and approval of form of standard connection contracts for large customers

(1) A distributor may prepare and submit to the AER for approval one or more proposed forms of standard connection contracts applicable to one or more classes of large customers.

(2) The AER must determine to approve a proposed form of standard connection contract submitted to it if it is satisfied that the terms and conditions of the contract are fair and reasonable and comply with any applicable requirements of the energy laws.

(3) The AER may determine not to approve a proposed form of standard connection contract submitted to it if it is not so satisfied, but must inform the distributor of the reasons for its dissatisfaction and may indicate the kinds of changes that should be made before the contract is resubmitted to it.

(4) On approval, the proposed form of standard connection contract becomes the deemed AER approved standard connection contract for the relevant class of large customers of the distributor for the purposes of this Law.

(5) The AER must deal expeditiously with a proposed form of standard connection contract submitted to it.

(6) A deemed AER approved standard connection contract must be published on the distributor’s website and is not operative until so published.

(7) Without limitation, all large customers may constitute a class of large customers.

76 Formation of deemed AER approved standard connection contract

76 Formation of deemed AER approved standard connection contract

(1) A customer connection contract in the form of a distributor’s deemed AER approved standard connection contract under section 75 is taken to be entered into, by the distributor and a large customer of a class to which the approved form applies, as set out in this section.

(2) In the case of a new connection or a connection alteration, a contract in the form of a distributor’s deemed AER approved standard connection contract takes effect as a contract between the distributor and a large customer of a class to which the approved form applies, on acceptance by the customer of the distributor’s connection offer in accordance with the requirements under—

(a) in the case of electricity—Chapter 5A of the NER; or

(b) in the case of gas—Part 12A of the NGR.

(3) In the case of an existing connection that is not the subject of a connection alteration, a distributor’s form of deemed AER approved standard connection contract takes effect as a contract between the distributor and a large customer when—

(a) in the case of an existing connection at premises that are not energised—the customer’s premises become re-energised (or reconnected); or

(b) in the case of an existing connection at premises that are energised—the customer commences to take supply of energy at those premises.

(4) In the case of an existing connection where—

(a) a customer has been reclassified as a large customer for particular premises; and

(b) a deemed standard connection contract applied in relation to the customer and the same premises immediately before the reclassification,

the deemed AER approved standard connection contract for that class of large customer takes effect between the customer and the distributor when the customer receives notice of the reclassification.

(4a) In the case of an existing connection where—

(a) a deemed standard connection contract applies in relation to a large customer and particular premises; and

(b) a deemed AER approved standard connection contract for the relevant class of large customers of the distributor is approved and published under section 75,

the deemed AER approved standard connection contract takes effect between the customer and the distributor when the customer receives notice of the contract.

(5) Subsections (1)—(4a) do not apply if a negotiated customer connection contract already exists between the distributor and the large customer in relation to the premises concerned.

(6) Notice of the formation of the deemed AER approved standard connection contract must be given to the large customer.

77 Amendment and replacement of form of deemed AER approved standard connection contract

77 Amendment and replacement of form of deemed AER approved standard connection contract

(1) A deemed AER approved standard connection contract may be replaced by another deemed AER approved standard connection contract.

(2) A deemed AER approved standard connection contract may be amended from time to time and the provisions of this Division apply to any such amendment and associated matters in the same way, with any necessary modifications, as they apply to the preparation, submission and approval of a deemed AER approved standard connection contract and associated matters.

(3) Notice of a replacement or amended deemed AER approved standard connection contract must be given to each affected large customer.

(4) A replacement or amended deemed AER approved standard connection contract takes effect for a large customer when the customer is given notice under subsection (3).

78 Negotiated connection contracts

78 Negotiated connection contracts

(1) This section applies where a distributor and a small customer negotiate and enter into a customer connection contract (a negotiated connection contract) in accordance with the relevant requirements of—

(a) in the case of electricity—Chapter 5A of the NER; or

(b) in the case of gas—Part 12A of the NGR,

including the requirements of the relevant negotiating framework.

(2) The distributor must provide—

(a) information relating to the small customer’s right to have a deemed standard connection contract under Division 4; and

(b) an explanation of—

(i) the differences between the terms and conditions of the proposed negotiated connection contract and the terms and conditions of a deemed standard connection contract; and

(ii) the implications of those differences.

(3) A negotiated connection contract operates to the exclusion of provisions of a deemed standard connection contract dealing with the same matters.

Note—

A retail customer may negotiate customer connection services for electricity (under Chapter 5A of the NER) and for gas (under Part 12A of the NGR).

Part 4 Small customer complaints and dispute resolution

Part 4 Small customer complaints and dispute resolution

79 Definitions

79 Definitions

(1) In this Part—

energy ombudsman constitution provisions means the provisions of—

(a) legislation of a participating jurisdiction (other than national energy legislation) or any instrument made or issued under or for the purposes of that legislation; or

(b) a constitution, charter or other arrangements,

under which an energy ombudsman is established or constituted and performs or exercises functions and powers in a participating jurisdiction;

relevant matter means a matter arising between a small customer and a retailer or distributor—

(a) under or in connection with this Law, the National Regulations or the Rules, including but not limited to a matter concerning any of the following—

(i) the carrying out of an energy marketing activity by a person;

(ii) a retailer’s obligations before a customer retail contract is formed (whether or not the contract is eventually formed);

(iii) a customer retail contract between a small customer and a retailer;

(iiia) (Repealed)

(iv) a deemed standard connection contract between a small customer and a distributor;

(v) a negotiated connection contract between a small customer and a distributor;

(vi) a decision of a distributor under Division 3 of Part 7 in relation to a customer’s claim for compensation; or

(b) under or in connection with the NER or NGR concerning a new connection or a connection alteration,

but does not include matters concerning the setting of tariffs and charges of distributors or retailers.

Note—

Nothing in this Part prevents an energy ombudsman from dealing with other disputes under the applicable energy ombudsman constitution provisions.

(2) A reference in this Part to—

(a) a small customer complaint is a reference to a complaint referred to in section 82 or 83; and

(b) a small customer dispute is a reference to a dispute referred to in section 83.

s 79: Am 2017 (290), Sch 1 [1].

80 Role of energy ombudsman

80 Role of energy ombudsman

(1) The relevant energy ombudsman for this jurisdiction may, as authorised by the energy ombudsman constitution provisions of this jurisdiction, perform and exercise, in relation to this jurisdiction, the functions and powers conferred on the energy ombudsman by this Part and the Rules.

(2) This Part does not affect any other functions or powers that an energy ombudsman has apart from this Law and the Rules.

81 Standard complaints and dispute resolution procedures

81 Standard complaints and dispute resolution procedures

(1) Every retailer and every distributor must develop, make and publish on its website a set of procedures detailing the retailer’s or distributor’s procedures for handling small customer complaints and disputes, to be known as its standard complaints and dispute resolution procedures.

(2) The procedures must be regularly reviewed and kept up to date.

(3) The procedures must be substantially consistent with the Australian Standard AS ISO 10002-2006 (Customer satisfaction—Guidelines for complaints handling in organizations) as amended and updated from time to time.

82 Complaints made to retailer or distributor for internal resolution

82 Complaints made to retailer or distributor for internal resolution

(1) A small customer may make a complaint to a retailer or distributor about a relevant matter, or any aspect of a relevant matter, concerning the customer and the retailer or distributor.

(2) The retailer or distributor must deal with the complaint if it is made in accordance with the retailer’s or distributor’s standard complaints and dispute resolution procedures, including any time limits applicable under those procedures for making a complaint.

(3) The complaint must be handled in accordance with the retailer’s or distributor’s standard complaints and dispute resolution procedures, including any time limits applicable under those procedures for handling a complaint.

(4) The retailer or distributor must inform the small customer of the outcome of the complaint process, and of the retailer’s or distributor’s reasons for the decision regarding the outcome, as soon as reasonably possible but, in any event, within any time limits applicable under the retailer’s or distributor’s standard complaints and dispute resolution procedures.

(5) A retailer or distributor must inform a small customer—

(a) that, if the customer is not satisfied with the outcome, the customer may make a complaint or take a dispute to the energy ombudsman; and

(b) of the telephone number and other contact details of the energy ombudsman.

83 Complaints made or disputes referred to energy ombudsman

83 Complaints made or disputes referred to energy ombudsman

A small customer may—

(a) make a complaint to the energy ombudsman about a relevant matter, or any aspect of a relevant matter, concerning the customer and a retailer or distributor; or

(b) refer a dispute to the energy ombudsman about a relevant matter, or any aspect of a relevant matter, concerning the customer and a retailer or distributor.

84 Functions and powers of energy ombudsman

84 Functions and powers of energy ombudsman

(1) The energy ombudsman has the following functions and powers—

(a) to receive small customer complaints and disputes;

(b) to investigate those complaints and disputes;

(c) to facilitate the resolution of those complaints and disputes;

(d) to resolve those complaints and disputes;

(e) to identify and advise on systemic issues as a means of preventing complaints and disputes.

(2) Those functions and powers are to be performed and exercised in accordance with—

(a) this Law and the Rules; and

(b) the energy ombudsman constitution provisions, including (but not limited to)—

(i) procedures for receiving, investigating and facilitating the resolution of small customer complaints and disputes; and

(ii) any relevant monetary limit.

(3) The energy ombudsman may decline to investigate a small customer complaint or dispute where the small customer concerned has not provided the retailer or distributor with a reasonable opportunity to address the complaint or dispute in accordance with the retailer’s or distributor’s standard complaints and dispute resolution procedures.

(4) Subsections (1) and (3) do not affect any functions or powers the energy ombudsman has under the energy ombudsman constitution provisions of this jurisdiction.

85 Information and assistance requirements

85 Information and assistance requirements

(1) A retailer or distributor must provide information and assistance relating to a small customer complaint or dispute to the energy ombudsman on request by the ombudsman.

(2) If there is a dispute as to the nature or scope of the information or assistance to be provided, the retailer or distributor is to abide by the decision of the ombudsman.

(3) The AER must share information with the energy ombudsman in relation to small customer complaints and disputes.

86 Retailers and distributors to be members of scheme

86 Retailers and distributors to be members of scheme

(1) A retailer must—

(a) be a member of, or subject to, an energy ombudsman scheme for each jurisdiction where it sells energy to small customers or engages in an energy marketing activity; and

(b) comply with the requirements of that scheme.

(2) A distributor must—

(a) be a member of, or subject to, an energy ombudsman scheme for each jurisdiction where it has small customers connected to its distribution system; and

(b) comply with the requirements of that scheme.

(3) A retailer must not, in this jurisdiction, engage in the activity of selling energy unless the retailer meets the requirements of subsection (1) in relation to this jurisdiction.

(4) A distributor must not, in this jurisdiction, engage in the activity of providing customer connection services unless the distributor meets the requirements of subsection (2) in relation to this jurisdiction.

(5) In this section—

energy ombudsman scheme means a scheme under which an energy ombudsman operates.

87 Rules

87 Rules

(1) The Rules may make provision for or with respect to small customer complaints and disputes.

(2) Without limiting subsection (1), the Rules may make provision for or with respect to a retailer’s or distributor’s standard complaints and dispute resolution procedures, including their development, making, publication, review, amendment and replacement.

Part 5 Authorisation of retailers and exempt seller regime

Part 5 Authorisation of retailers and exempt seller regime

88 Requirement for authorisation or exemption

88 Requirement for authorisation or exemption

(1) A person (the seller) must not, in this jurisdiction, engage in the activity of selling energy to a person for premises unless—

(a) the seller is the holder of a current retailer authorisation; or

(b) the seller is an exempt seller.

(2) Subsection (1) does not limit—

(a) in the case of the sale of electricity—any requirement under section 11(4) of the NEL relating to the purchasing of electricity through a wholesale exchange; or

(b) in the case of the sale of gas—

(i) any requirement under section 91LB of the NGL, as it applies to this jurisdiction in relation to a user (within the meaning of the NGL), to be registered (or exempted from registration) in this jurisdiction in order to participate in a regulated retail gas market; or

(ii) any requirement under section 91BJ of the NGL, as it applies in relation to a declared wholesale gas market, to be registered (or exempted from registration) in order to participate in that market and to sell gas to customers that has been transported through the relevant declared transmission system; or

(iii) any requirement under section 91BRD of the NGL, as it applies to a short term trading market, to be registered (or exempted from registration) in order to participate in that market.

(3) A person must not engage in an activity referred to in subsection (1) unless the person has complied with any requirement referred to in subsection (2) (to the extent that any such requirement applies in relation to the person) (but nothing in this subsection requires a requirement under subsection (2) to be satisfied before the AER may grant a retailer authorisation or confer an exemption under this Part).

Note—

This section is a civil penalty provision.

s 88: Am 2022 No 21, sec 7; 2023 No 36, sec 78.

89 Applications

89 Applications

(1) A person may apply to the AER for a retailer authorisation.

(2) An application may be made by 2 or more persons acting in their capacity as members of a partnership or joint venture.

(3) If an application is made under subsection (2), a reference to an applicant under this Part will be taken to be a reference to the persons who made the application jointly (and they may satisfy any criteria or other requirement on a joint basis).

90 Entry criteria

90 Entry criteria

(1) The entry criteria in relation to an application are as follows—

(a) the organisational and technical capacity criterion—the applicant must have the necessary organisational and technical capacity to meet the obligations of a retailer;

(b) the financial resources criterion—the applicant must have resources or access to resources so that it will have the financial viability and financial capacity to meet the obligations of a retailer;

(c) the suitability criterion—the applicant must be a suitable person to hold a retailer authorisation.

(2) The applicant must, in accordance with the AER Retailer Authorisation Guidelines, provide such information to the AER as will demonstrate to the AER that the applicant satisfies the entry criteria.

(3) The information must be provided in or with the application or, at the request of or with the concurrence of the AER, by way of supplementary advice.

(4) In considering the suitability criterion in relation to the application, the AER may take into consideration such matters as it thinks relevant, including, for example—

(a) previous commercial dealings of the applicant and its associates; and

(b) the standard of honesty and integrity shown in previous commercial dealings of the applicant and its associates.

(5) In this section—

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.

91 Public notice and submissions

91 Public notice and submissions

Before deciding an application, the AER must—

(a) publish on the AER’s website a notice—

(i) setting out a copy of the application or giving details in relation to the application; and

(ii) stating that written submissions about the application may be made to the AER within a period of at least 20 business days that is specified in the notice; and

(iii) containing such other information as the AER considers appropriate; and

(b) consider all written submissions received by it within that period before deciding whether to grant or refuse the application.

92 Deciding application

92 Deciding application

(1) The AER must decide whether to grant or refuse an application.

(2) Subject to section 170, the AER must grant the application if the AER is satisfied—

(a) that the applicant satisfies the entry criteria; or

(b) in a case where the AER imposes conditions relating to the satisfaction of the entry criteria—that the applicant will satisfy the entry criteria once those conditions are satisfied.

93 Conditions

93 Conditions

(1) If the AER grants an application, the AER may impose conditions on the retailer authorisation relating to the satisfaction of the entry criteria.

(2) A condition imposed under this section may provide that the retailer authorisation only authorises the selling of energy to customers on or after the condition is satisfied.

(3) The AER may amend or revoke any condition imposed under this section.

Note—

See section 170 where the applicant is a failed retailer or an associate of a failed retailer.

94 Notice of decision to grant application

94 Notice of decision to grant application

(1) If the AER decides to grant an application, the AER must, as soon as practicable, give the applicant a notice—

(a) stating the decision; and

(b) stating that the applicant is, when the retailer authorisation is issued under section 96, authorised to sell—

(i) electricity; or

(ii) gas; and

(ba) if the applicant is authorised to sell gas—stating the types of gas the applicant is authorised to sell; and

(c) specifying the conditions (if any) that the AER has decided to impose on the retailer authorisation under section 93(1) or 170(1)(b); and

(d) stating any other matter relevant to the grant of the retailer authorisation.

(2) The AER must be satisfied the applicant satisfies the entry criteria in section 90 for each type of gas the applicant is authorised to sell.

s 94: Am 2023 No 36, sec 79.

95 Deemed refusal

95 Deemed refusal

(1) This section applies if the AER specifies conditions in a notice under section 94.

(2) The AER is taken to have decided to refuse an application if, within—

(a) the period of 20 business days after the day the notice is given by the AER; or

(b) that period as extended by the AER,

the applicant has not given the AER a notice of acceptance of the conditions specified by the AER or those conditions with changes to which the AER has agreed.

(3) The AER is taken to have decided to refuse an application if, within—

(a) the period of 3 months after the day the notice is given by the AER; or

(b) that period as extended by the AER,

the applicant does not satisfy the AER that the conditions specified in the notice have been met.

96 Issue and public notice of retailer authorisation

96 Issue and public notice of retailer authorisation

(1) This section applies if—

(a) the AER decides to grant an application without conditions relating to entry criteria; or

(b) the AER decides to grant an application with conditions relating to entry criteria and, within—

(i) the period of 3 months after the day the notice of the AER’s decision is given by the AER; or

(ii) that period as extended by the AER,

the applicant satisfies the AER that the conditions specified in the notice have been met.

(2) The AER must, as soon as practicable—

(a) issue the retailer authorisation to the applicant; and

(b) publish a notice about the retailer authorisation on the AER’s website.

96A Retailer authorisation may be held jointly

96A Retailer authorisation may be held jointly

(1) A retailer authorisation may be held jointly by 2 or more persons.

(2) If a retailer authorisation is held jointly by 2 or more persons, those persons are jointly and severally liable to meet requirements imposed under any of the energy laws.

97 Notice of refusal

97 Notice of refusal

(1) If the AER decides or is taken to have decided to refuse an application, the AER must, as soon as practicable, give the applicant a notice stating the decision and the reasons for the decision and indicating whether, and (if so), how the entry criteria were not satisfied or will not be satisfied.

(2) If the AER decides or is taken to have decided to refuse an application, the AER must, as soon as practicable, publish a notice on its website stating—

(a) that the application for a retailer authorisation was refused; and

(b) the name of the applicant; and

(c) any details relating to the application that the AER considers appropriate.

98 Duration of retailer authorisation

98 Duration of retailer authorisation

A retailer authorisation continues in force until it is surrendered or revoked.

99 Variation of retailer authorisation

99 Variation of retailer authorisation

(1) The AER may amend a retailer authorisation to make any alterations requested by the retailer.

(1a) An amendment must not change the type or types of gas a retailer is authorised to sell unless—

(a) the retailer makes an application under this Division; and

(b) the AER determines the application under this Division.

(2) In this section—

alterations includes omissions and additions.

s 99: Am 2023 No 36, sec 80.

100 Form of energy authorised to be sold

100 Form of energy authorised to be sold

(1) A retailer authorisation may authorise the sale of electricity or gas.

(2) A retailer authorisation cannot be varied to change or add to the form of energy that the applicant is authorised to sell to customers, as specified in the notice under section 94.

(3) This section does not prevent an application for or the grant of another retailer authorisation.

101 Transfer only by application

101 Transfer only by application

(1) A retailer authorisation may be transferred only under this Division.

(2) A purported transfer of a retailer authorisation not made under this Division is of no effect.

102 Applying for transfer

102 Applying for transfer

(1) A retailer may apply to the AER to transfer the retailer’s authorisation.

(2) The application must—

(a) be made by the retailer and the proposed transferee; and

(b) include the information specified in the AER Retailer Authorisation Guidelines as being required to be included in or with an application for transfer of a retailer authorisation.

103 Deciding transfer application

103 Deciding transfer application

(1) The AER must decide whether to grant or refuse the application.

(2) The application must not be granted unless the AER is satisfied that—

(a) the proposed transferee satisfies the entry criteria; and

(b) arrangements relating to the transfer will appropriately manage any issues concerning customers of the proposed transferor.

(3) The AER—

(a) may impose conditions on granting the application; and

(b) must fix a time, no later than 6 months after deciding the application, for the transfer to take effect.

(4) If the AER decides to refuse the application or impose a condition on the transfer, the AER must, as soon as practicable, give the applicants notice of the decision and the reasons for the decision.

(5) Without limitation, a condition may require the transferor or transferee to comply with specified requirements of energy laws, with any modifications specified in the condition. Any such requirement may continue, to the necessary extent, to apply to the transferor after the transfer of the authorisation.

(6) The AER must advise AEMO and the distributors concerned where a retailer authorisation is transferred.

(7) Despite section 38, the explicit informed consent of a small customer is not required in relation to the transfer of a retailer’s authorisation under this Division.

(8) A transferor or transferee must comply with any conditions imposed on the transferor or transferee under this section.

Note—

This subsection is a civil penalty provision.

104 Application of application process to transfers

104 Application of application process to transfers

The AER may determine that specified provisions of Division 2 are to apply in relation to the proposed transferee in the same way as they apply in relation to an application for a retailer authorisation, and those provisions apply accordingly with any necessary modifications.

104A Change in legal structures

104A Change in legal structures

(1) For the purposes of this Division, if a retailer authorisation is held jointly by 2 or more persons as members of a partnership or joint venture, a change in the persons constituting the partnership or joint venture (as the case may be) will be taken to be a transfer of the retailer authorisation.

(2) The AER may, in a case where subsection (1) applies—

(a) require that an application be made in accordance with the AER Retailer Authorisation Guidelines (including as to the provision of information); and

(b) apply this Division in relation to any such application according to such modifications as the AER may determine to be appropriate in the circumstances.

105 Surrender of retailer authorisation

105 Surrender of retailer authorisation

(1) A retailer may surrender its retailer authorisation only if the AER has, on the retailer’s application, decided to approve the surrender.

(2) The application must provide the information required by the AER Retailer Authorisation Guidelines.

(3) The AER may decide to approve the surrender if the AER is satisfied that arrangements relating to the surrender will appropriately manage the transfer of any retail customers.

(4) In deciding to approve the surrender of a retailer authorisation, the AER—

(a) may, after consulting AEMO, impose conditions for the transfer of customers to another retailer; and

(b) must fix a time, no later than 6 months after deciding the application, for the surrender to take effect.

(5) Without limitation, a condition may require the surrendering retailer (or former retailer) to abide by specified requirements of energy laws, with any modifications specified in the condition. Any such requirement may continue, to the extent necessary, to apply to the retailer after the surrender of the retailer authorisation.

(6) The AER must publish on its website a copy of its decision to approve the surrender of the retailer authorisation, including the reasons and any conditions that are imposed.

(7) The AER must advise AEMO and the distributors concerned where a retailer authorisation is surrendered.

(8) Despite section 38, the explicit informed consent of a small customer is not required in relation to the surrender of a retailer authorisation under this Division.

(9) A surrendering retailer (or former retailer) must comply with any conditions imposed on the surrendering retailer (or former retailer) under this section.

Note—

This subsection is a civil penalty provision.

106 Transfer of customers following surrender

106 Transfer of customers following surrender

A person whose retailer authorisation is surrendered must comply with the requirements of conditions imposed for the transfer of the person’s former customers to another retailer.

Note—

This section is a civil penalty provision.

107 Power to revoke retailer authorisation

107 Power to revoke retailer authorisation

(1) The AER may decide to revoke a retailer authorisation in accordance with this Division.

(2) The grounds for revocation of a retailer’s authorisation are—

(a) that the retailer—

(i) in the case of electricity—has breached a requirement referred to in section 88(2)(a); or

(ii) in the case of gas—has breached a requirement referred to in section 88(2)(b); or

(b) that the AER is satisfied that there has been a material failure by the retailer to meet the obligations of a retailer under the energy laws, which creates a reasonable apprehension that the retailer will not be able to meet its obligations under this Law, the National Regulations or the Rules in the future.

(3) A retailer authorisation may not be revoked unless the revocation process has been completed.

(4) The AER may commence the revocation process in relation to a retailer authorisation if the AER reasonably considers that the grounds for revocation exist.

Note—

The revocation process is set out in section 120.

s 107: Am 2020 No 37, sec 37.

108 Transfer of customers following revocation

108 Transfer of customers following revocation

A person whose retailer authorisation has been revoked must comply with the requirements of conditions imposed for the transfer to another retailer of the persons who were its customers immediately before the revocation.

Note—

This section is a civil penalty provision.

109 Definitions

109 Definitions

In this Division—

exempt customer means a person to whom an exempt seller sells energy and who would be a retail customer of the seller if the seller were a retailer;

retail customer means a person who is a customer of a retailer.

110 Power to exempt

110 Power to exempt

(1) The AER may decide to exempt persons or classes of persons in accordance with the Rules from the requirement to hold a retailer authorisation.

(2) There are 3 kinds of exemptions provided for in the Rules, as follows—

(a) individual exemptions;

(b) deemed exemptions;

(c) registrable exemptions (which become registered exemptions in respect of particular persons when the persons are registered under the Rules).

(3) An exemption of a class of persons may be made so as to operate (subject to the terms of the exemption)—

(a) in respect of all the members of the class; or

(b) in respect only of those members of the class who are, on application, registered in the Public Register of Authorised Retailers and Exempt Sellers in relation to the exemption.

(4) A person is an exempt seller for the purposes of this Part while an exemption is in force in relation to the person.

111 Power to revoke exemption

111 Power to revoke exemption

(1) The AER may decide to revoke (in relation to a particular exempt seller)—

(a) an individual exemption; or

(b) an exemption under a deemed exemption; or

(c) a registered exemption,

in accordance with this section.

(2) The grounds for revocation of an exempt seller’s exemption are that the AER is satisfied that there has been a material failure by the seller to meet the conditions imposed on the exempt seller.

(3) An exemption may not be revoked unless the revocation process has been completed.

(4) The AER may commence the revocation process in relation to an exempt seller’s exemption if the AER reasonably considers that the grounds for revocation exist.

Note—

The revocation process is set out in section 120.

112 Conditions

112 Conditions

(1) The AER may impose conditions on an exempt seller or class of exempt sellers in accordance with the Rules and the AER Exempt Selling Guidelines.

(2) An exempt seller must comply with applicable conditions imposed under this section.

Note—

This subsection is a civil penalty provision.

(3) The AER may deal with a breach of a condition imposed under this section as if it were a breach of the Rules.

112A

112A (Repealed)

113 Rules

113 Rules

The Rules may make provision for or with respect to—

(a) the exemption of persons or classes of persons from the requirement to hold a retailer authorisation; and

(b) the variation or revocation of exemptions.

114 Manner in which AER performs AER exempt selling regulatory functions or powers

114 Manner in which AER performs AER exempt selling regulatory functions or powers

(1) The AER must, in performing or exercising an AER exempt selling regulatory function or power, take into account the following policy principles—

(a) regulatory arrangements for exempt sellers should not unnecessarily diverge from those applying to retailers;

(b) exempt customers should, as far as practicable, be afforded the right to a choice of retailer in the same way as comparable retail customers in the same jurisdiction have that right;

(c) exempt customers should, as far as practicable, not be denied customer protections afforded to retail customers under this Law and the Rules.

(2) The AER may, in performing or exercising an AER exempt selling regulatory function or power, take into account—

(a) the exempt seller related factors (see section 115); and

(b) the customer related factors (see section 116),

if the AER considers it appropriate to do so.

(3) The AER may give such weight to any aspect of the policy principles, the exempt seller related factors and the customer related factors as it considers appropriate in all the circumstances.

115 Exempt seller related factors

115 Exempt seller related factors

(1) The exempt seller related factors are as follows—

(a) whether selling energy is or will be a core part of the exempt seller’s business or incidental to that business;

(b) whether the exempt seller’s circumstances demonstrate specific characteristics that may warrant exemption;

(c) whether the exempt seller is intending to profit from the arrangement;

(d) whether the amount of energy likely to be sold by the exempt seller is significant in relation to national energy markets;

(e) the extent to which the imposition of conditions on an exemption, or to which the requirements of other laws, would allow appropriate obligations to govern the applicant’s behaviour rather than requiring the applicant to obtain a retailer authorisation;

(f) the likely cost of obtaining a retailer authorisation and of complying with this Law and the Rules as a retailer compared to the likely benefits to the exempt customers of the exempt seller;

(g) any other seller related matter the AER considers relevant.

(2) In this section—

exempt seller includes an applicant for an exemption under this Division.

116 Customer related factors

116 Customer related factors

The customer related factors are as follows—

(a) whether the characteristics of the exempt customers or the circumstances in which energy is to be sold to them by the applicant are such as to warrant exemption;

(b) the extent to which the imposition of conditions on an exemption, or to which the requirements of other laws, would allow the exempt customers access to appropriate rights and protections rather than requiring the applicant to obtain a retailer authorisation;

(c) any other customer related matter the AER considers relevant.

117 AER Retailer Authorisation Guidelines

117 AER Retailer Authorisation Guidelines

(1) The AER must make guidelines (AER Retailer Authorisation Guidelines) in accordance with the retail consultation procedure—

(a) specifying information that is required to be included in an application for a retailer authorisation; and

(b) indicating, for the guidance of applicants for retailer authorisations, how the AER will apply the entry criteria for an applicant for a retailer authorisation; and

(c) providing, for the guidance of the holders of retailer authorisations, information about—

(i) the surrender or transfer of retailer authorisations; and

(ii) the revocation of retailer authorisations; and

(d) concerning any other matters specified in the Rules.

(2) The AER may amend the AER Retailer Authorisation Guidelines in accordance with the retail consultation procedure.

118 AER Exempt Selling Guidelines

118 AER Exempt Selling Guidelines

(1) The AER must, in accordance with the Rules, develop and maintain guidelines (AER Exempt Selling Guidelines) in accordance with the retail consultation procedure—

(a) providing information about exemptions from the requirement to hold a retailer authorisation; and

(b) concerning any other matters specified in the Rules.

(2) The Rules may make provision for or with respect to the AER Exempt Selling Guidelines.

(3) The AER may amend the AER Exempt Selling Guidelines in accordance with the retail consultation procedure.

119 Public Register of Authorised Retailers and Exempt Sellers

119 Public Register of Authorised Retailers and Exempt Sellers

The AER must maintain, and publish on its website, a Public Register of Authorised Retailers and Exempt Sellers, which—

(a) must include particulars of authorised retailers and exempt sellers, and other particulars, as required by the Rules; and

(b) may include other particulars or information as permitted by the Rules.

120 Revocation process—retailer authorisations and exemptions

120 Revocation process—retailer authorisations and exemptions

(1) This section sets out the revocation process in relation to a retailer authorisation or an exempt seller’s exemption (see sections 107 and 111), and in this section—

(a) the term holder refers to the retailer or exempt seller; and

(b) the term authorisation refers to the retailer’s retailer authorisation; and

(c) the term exemption refers to the exempt seller’s exemption.

(2) The AER must give the holder a notice that it intends to revoke the authorisation or exemption.

(3) The notice must set out the reasons why the AER considers that the grounds for revocation exist.

(4) The notice must request the holder to respond to the notice in writing (by a date and time specified in the notice, being a date not less than 10 business days after the date of service of the notice) by doing either or both of the following—

(a) showing cause why the AER should not revoke the authorisation or exemption;

(b) stating how the holder proposes to address the matters set out in the notice.

(5) If, by the date and time referred to in the notice, the holder has not shown sufficient cause why the AER should not revoke the authorisation or exemption, the AER may revoke the authorisation or exemption if—

(a) the holder has, by that date and time, stated how the holder proposes to address the matters set out in the notice but the AER is not satisfied that the holder can rectify the matters set out in the notice; or

(b) the holder has, by that date and time, failed to state how the holder proposes to address the matters set out in the notice.

(6) Without limiting subsection (5), the AER may revoke the authorisation or exemption if—

(a) the holder has, by the date and time referred to in the notice, informed the AER how the holder proposes to address the matters set out in the notice (including the date by which those matters will have been addressed); and

(b) the holder fails to rectify those matters after being given a reasonable opportunity to do so or otherwise by the date nominated by the holder under paragraph (a).

(7) The AER—

(a) must fix a time for the revocation to take effect; and

(b) may, after consulting AEMO, impose conditions on the transfer of customers to another retailer or exempt seller.

(8) Without limitation, a condition may require the holder (or former holder) to comply with specified requirements of energy laws, with any modifications specified in the condition. Any such requirement may continue, to the extent necessary, to apply to the holder (or former holder) after the revocation of the authorisation or exemption.

(9) The AER must publish on its website a copy of its decision to revoke the authorisation or exemption, including the reasons and any conditions that are imposed.

(10) The AER must advise AEMO and the distributors concerned where an authorisation or exemption is revoked.

(11) A holder (or former holder) must comply with any conditions imposed on the holder (or former holder) under this section.

Note—

This subsection is a civil penalty provision.

Part 5A AER trial waiver functions

Part 5A AER trial waiver functions

pt 5A: Ins 2022 No 22, sec 20.

121A Definitions

121A Definitions

In this Part—

proponent—see section 121C(1).

s 121A: Ins 2022 No 22, sec 20.

121B Interpretative matters

121B Interpretative matters

(1) The functions of the AER under this Part are the AER trial waiver functions.

(2) This Part does not limit any other provision of this Law or the Rules that provides for an exemption from, or for the waiver of, compliance with this Law or the Rules.

s 121B: Ins 2022 No 22, sec 20.

121C Trial waiver

121C Trial waiver

(1) Subject to this section, the AER may, on application by a person or body that proposes to undertake a trial project (a proponent), make a determination to grant the proponent an exemption (a trial waiver) from 1 or more of the following—

(a) section 88 of this Law;

(b) the Rules, or a provision of the Rules.

(2) Before making a determination to grant a trial waiver, the AER must have regard to the innovative trial principles and any matter required by the Rules.

(3) An application for a trial waiver must be made in accordance with the Rules.

s 121C: Ins 2022 No 22, sec 20.

121D Conditions of trial waiver

121D Conditions of trial waiver

(1) A trial waiver must be in writing and—

(a) must be subject to any conditions required by the Rules; and

(b) may be subject to any conditions the AER considers appropriate.

(2) The AER may vary or revoke a condition of a trial waiver in accordance with the Rules.

s 121D: Ins 2022 No 22, sec 20.