Div 12Large customers—responsibility for energy consumed

Division 12—Large customers—responsibility for energy consumed 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 65—Application of this Part This Part applies to the relationship between distributors and customers. The term "customer" covers both small customers and large customers. Division 2—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. 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. Division 3—Customer connection contracts generally 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. 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. Division 4—Deemed standard connection contracts 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 (1) Adoption and publication A distributor must adopt a form of deemed standard connection contract and publish it on the distributor's website. (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 (a) alterations specifying details relating to identity and contact details of the distributor; and (5) Required alterations (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 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— (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 (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. (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 (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 (a) alterations specifying details relating to identity and contact details of the distributor; and (4) Required alterations (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 (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. 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 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. Division 5—Deemed AER approved standard connection contracts 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 (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— (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 (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). Division 6—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— (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. 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 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; (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. 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. 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 (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 (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 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 (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 (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 (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 (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 Division 1—Prohibition on unauthorised selling of energy 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). Division 2—Application for and issue of retailer authorisation 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 (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 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 (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 (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. See section 170 where the applicant is a failed retailer or an associate of a failed retailer. 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. 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 (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 (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 (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 A retailer authorisation continues in force until it is surrendered or revoked. 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. 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. Division 3—Transfer of retailer authorisation 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 (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 (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. 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 (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. Division 4—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. 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. Division 5—Revocation of retailer authorisation This Division does not apply where a RoLR notice is issued under Part 6: see section 142(2). 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. The revocation process is set out in section 120. 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. Division 6—Exemptions 109—Definitions 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 (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 (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. The revocation process is set out in section 120. 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. (3) The AER may deal with a breach of a condition imposed under this section as if it were a breach of the 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 (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 (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. exempt seller includes an applicant for an exemption under this Division. 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. Division 7—Miscellaneous 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 (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 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 (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.