Utilities Act 2000

1 Name of Act This Act is the Utilities Act 2000.

3 ICRC’s objects ICRC’s objects under this Act are as follows: (a) to encourage the provision of safe, reliable, efficient and high quality utility services at reasonable prices; (b) to minimise the potential for misuse of monopoly power in the provision of utility services; (c) to promote competition in the provision of utility services; (d) to encourage long-term investment, growth and employment in utility service industries; (e) to promote ecologically sustainable development in the provision of utility services; (f) to protect the interests of consumers; (g) to ensure that advice given to ICRC by the ACAT is properly considered; (h) to ensure the Government’s programs about the provision of utility services are properly addressed; (i) to give effect to directions of the Minister under section 19.

Preliminary Part 1

4 Dictionary The dictionary at the end of this Act is part of this Act. Note 1 The dictionary at the end of this Act defines certain terms used in this Act, and includes references (signpost definitions) to other terms defined elsewhere in this Act. For example, the signpost definition ‘customer—see section 17 (Customers).’ means the term ‘customer’ is defined in that section. Note 2 A definition in the dictionary applies to the entire Act unless the definition, or another provision of the Act, provides otherwise or the contrary intention otherwise appears (see Legislation Act, s 155 and s 156 (1)).

5 Notes A note included in this Act is explanatory and is not part of this Act. Note See Legislation Act, s 127 (1), (4) and (5) for the legal status of notes.

5A Offences against Act—application of Criminal Code etc Other legislation applies in relation to offences against this Act. Note 1 Criminal Code The Criminal Code, ch 2 applies to the following offences against this Act (see Code, pt 2.1): • s 54J (Production of relevant information etc) • s 54L (Offence––failure to register) • s 75H (Offence—contravention of code, s 75E or s 75GA) • s 75J (Offence—contravention of direction) • s 75K (Offence—contravention of s 75F) • s 243 (Identity cards) • s 248 (Interference with territory networks). The chapter sets out the general principles of criminal responsibility (including burdens of proof and general defences), and defines terms used for offences to which the Code applies (eg conduct, intention, recklessness and strict liability). Note 2 Penalty units The Legislation Act, s 133 deals with the meaning of offence penalties that are expressed in penalty units.

Electricity Division 2.1

Division 2.1 Electricity

6 Electricity services (a) the distribution of electricity through an electricity network; (b) an electricity connection service; (c) the capacity to generate 30MW or more of power connected to an electricity network; (d) the transmission of electricity through an electricity network.

7 Electricity networks (1) For this Act, an electricity transmission network consists of infrastructure used, or for use, in relation to the transmission of electricity by a person to an electricity distribution network. (2) For this Act, an electricity distribution network consists of infrastructure used, or for use, in relation to the distribution of electricity by a person for supply to the premises of another person. infrastructure means— (a) powerlines; or (b) substations and equipment for monitoring, distributing, converting, transforming, or controlling electricity; or (c) a structure supporting overhead powerlines; or (d) wires, ducts or pipes for wires, or equipment; or (e) any other thing ancillary to any other part of the infrastructure.

(4) An electricity network does not include infrastructure that is outside the network boundary.

8 Gas—terminology gas means natural gas. (2) A term used in any of the following has the same meaning in this Act: (a) National Gas (ACT) Act 2008; (b) National Gas (ACT) Law; (c) National Gas (ACT) Regulation. Note A definition in an Act applies except so far as the contrary intention appears (see Legislation Act, s 155). natural gas—see the National Gas (ACT) Law, section 2.

9 Gas services (a) the transmission of gas through a gas transmission network; (b) the distribution of gas through a gas distribution network; (c) a gas connection service.

Natural gas Division 2.2

10 Gas networks (1) For this Act, a gas transmission network consists of infrastructure used, or for use, in relation to the transmission of gas by a person through a transmission pipeline to a gas distribution network owned or operated by another person. (2) For this Act, a gas distribution network consists of infrastructure used, or for use, in relation to the distribution of gas by a person through a distribution pipeline for supply to premises of another distribution pipeline—see the National Gas (ACT) Law, section 2. infrastructure means— (a) pipelines; or (b) meters; or (c) any equipment (including pressure control devices, excess flow valves, control valves, actuators, electrical equipment, telemetry equipment, cathodic protection installations, compounds, pits, buildings, signs and fences); or transmission pipeline—see the National Gas (ACT) Law, section 2. (4) A gas network does not include infrastructure that is outside the

11 Water services (a) the collection or treatment of water, or both, for distribution through a water network; (b) making a water network available for the provision of water connection services; (c) the distribution of water through a water network; (d) a water connection service; (e) the supply of water from a water network to premises for consumption.

12 Water network (1) For this Act, a water network consists of the infrastructure mentioned in subsection (2) used, or for use, in relation to any of the following purposes: (a) the collection and treatment of water for distribution by a person to premises of another person; (b) the distribution of water by a person for supply to premises of another person. (2) For subsection (1), the infrastructure consists of the following: (a) water storages, mains and treatment plants; (b) pumps, facilities and equipment for distributing water, or monitoring or controlling the distribution of water; (c) pipes or equipment;

Sewerage Division 2.4 (3) A water network does not include infrastructure that is outside the Division 2.4 Sewerage

13 Sewerage services (a) making a sewerage network available for the provision of sewerage connection services; (b) a sewerage connection service; (c) a sewerage service.

14 Sewerage network (1) For this Act, a sewerage network consists of the infrastructure mentioned in subsection (2) used, or for use, in relation to the provision of sewerage services by a person to premises of another (2) For subsection (1), the infrastructure consists of the following: (a) sewage storages, trunk sewers, mains and treatment plants; (b) pumps, facilities and equipment for conveying sewage, or monitoring or controlling the conveyance of sewage; (c) pipes or equipment; (3) A sewerage network does not include infrastructure that is outside the

15 Prescribed utility services (1) The regulations may prescribe— (a) a service related or ancillary to a utility service mentioned in division 2.1, 2.2, 2.3 or 2.4; or (b) a service complementary to the operations of a utility; to be a utility service. (2) The regulations may prescribe the utility network, and the infrastructure it consists of, for a utility service prescribed by regulations under subsection (1). (3) Regulations made for this section may— (a) exempt a person from a stated requirement under this Act; and (b) state the circumstances in which an exemption applies.

15A Exempt classes of utility services (1) A regulation may exempt a class of utility service from this Act if, after consulting the ICRC and having regard to the matters in subsection (2), the Minister is satisfied on reasonable grounds that— (a) the class of utility service is, either— (i) adequately regulated under another law applying in the ACT; or (ii) not required to be regulated; and (b) exempting the class of utility service will not significantly impede the ICRC achieving its objects under section 3. (2) For subsection (1), the Minister must have regard to the following: (a) the nature and kind of utility service;

Miscellaneous Division 2.5 (b) the level of risk of— (i) a utility service in the class failing; or (ii) a utility failing to provide a utility service in the class in a safe, reliable and effective way; (c) the consequences for consumers, public safety and the environment if— (i) a utility service in the class were to fail; or (ii) a utility were to fail to provide a utility service in the class in a safe, reliable and effective way.

17 Customers customer, for a utility service, means— (a) a person for whom the service is provided under a customer contract; or (b) a person who has applied, orally or in writing, to the relevant utility for the service to be provided under a customer contract. franchise customer, in relation to the supply of water to premises, means a customer other than a non-franchise customer for the supply to the premises. non-franchise customer, for the supply of water to premises, means a person who has that status because of a declaration under section 18. (2) For subsection (1), definition of customer, paragraph (b), an application for a connection or supply service in relation to water or sewerage includes an application by, or for, a person for approval of a plan for plumbing or drainage work to connect premises to the relevant network.

(3) For this Act, a customer to whom a declaration under section 18 applies is a non-franchise customer for a utility service only in the circumstances to which the declaration relates.

18 Declaration of non-franchise customers (1) The Minister may declare a person to be a non-franchise customer in relation to the supply of water to premises. Note Power to make a statutory instrument (including a declaration) includes power to make different provision for different categories (see Legislation Act, s 48). (2) A declaration is a notifiable instrument.

19 Ministerial directions (1) A direction under this section may be given only to ensure the achievement of the objects set out in section 3 (a) to (h). (2) The Minister may give a direction to ICRC about the results it must achieve by— (a) licence conditions; or (b) industry codes. (3) A direction may be given generally or in relation to a particular matter. (4) ICRC must give effect to the direction as far as practicable. (5) A direction is a disallowable instrument.

20 Other laws not affected (1) This Act is in addition to, and does not limit, any other Act. (2) In particular, nothing in this Act affects the exercise of a function under, or the obligation of a utility to comply with a requirement of or under, any of the following: (a) the Electricity Safety Act 1971;

Miscellaneous Division 2.5 (b) the Emergencies Act 2004; (c) the Environment Protection Act 1997; (d) the Australian Consumer Law (ACT); (e) the Gas Safety Act 2000; (f) the National Gas (ACT) Act 2008; (g) the National Gas (ACT) Law; (h) the National Gas (ACT) Regulation; (i) the Planning Act 2023; (j) the Water and Sewerage Act 2000; (k) the Water Resources Act 2007; (l) the Work Health and Safety Act 2011. Note A reference to an Act includes a reference to the statutory instruments made or in force under the Act, including regulations (see Legislation

21 Requirement for licence (1) A person must not provide a utility service except in accordance with a licence. (2) A person who contravenes subsection (1) commits a separate offence for each day (after the first day) during any part of which the contravention continues. fine not exceeding 600 penalty units. (4) To remove any doubt, subsection (1) does not apply to the provision of a utility service by a person as an agent of a utility.

22 Exemption (1) The Minister may exempt a person from the requirement for a licence in relation to a utility service. Note Power given under an Act to make a statutory instrument includes power to make different provision for different categories, eg different classes of people or services (see Legislation Act, s 48). (2) An exemption is subject to compliance with any condition stated in the instrument of exemption.

Terms of licences Division 3.2 (3) An exemption is a disallowable instrument. Note The conditions on an exemption may, for example, require compliance with certain requirements under the Act in relation to safety and technical matters.

23 Licensed utility services A licence may be for 1 or more stated utility services, for example— (a) in 1 or more areas; or (b) for 1 or more classes of people.

24 Duration A licence may be in force indefinitely or for a term stated in the licence.

25 General conditions (1) A licence is subject to— (a) the conditions imposed from time to time by this Act; and (b) any other condition stated in the licence by ICRC that is not inconsistent with a requirement of, or under, this Act or any other law of the Territory. (2) A licence is subject to the following conditions: (a) that the utility comply with each of the following: (i) any requirement under this Act or a related law; (ii) a requirement under any other law in force in the Territory that applies to the utility in relation to the provision of a utility service; (iii) each industry code that applies to the utility;

(iv) each technical code that applies to the utility; (v) a direction given to it by ICRC under this Act or a related law; (vi) a technical regulator’s direction given under the Utilities (Technical Regulation) Act 2014 that applies to the utility; (b) that the utility maintains the capacity, as determined in accordance with the relevant technical and prudential criteria adopted by ICRC from time to time under section 26— (i) to comply with the licence conditions; and (ii) to operate a viable business as a licensee; (c) that the utility keep all records and documents necessary to enable it to meet any reporting requirement, or any requirement to produce a record or document, under this Act or another condition of its licence; (d) that the utility give ICRC, in accordance with any written requirements by ICRC, an annual report for each financial year in relation to— (i) the exercise of its functions under this Act; and (ii) its compliance with the conditions of the licence.

26 Technical and prudential criteria (1) ICRC must, in writing, adopt technical and prudential criteria for determining whether a utility, or an applicant for a licence, has the capacity— (a) to comply with licence conditions; and (b) to operate a viable business as licensee. (2) ICRC must, on request in writing by a utility, or an applicant or prospective applicant for a licence, give the person particulars of the relevant technical and prudential criteria.

Terms of licences Division 3.2 (3) Section 38 applies to a variation of the criteria adopted in relation to a particular utility in the same way as it applies to a variation of a licence.

27 Special conditions—water supply services A licence to supply water is, in addition to the conditions mentioned in section 25, subject to the following conditions: (a) that the utility supply only customers of the kind to which the licence relates; (b) if the licence is for supply to franchise customers—that the water is supplied in accordance with the terms of the utility’s standard customer contract for the supply (except to the extent that the customer and utility agree to other terms).

28 Special conditions—electricity distribution (1) A licence to distribute electricity is, in addition to the conditions mentioned in section 25, subject to the condition that the utility comply with each applicable determination made by ICRC as the jurisdictional regulator under the national electricity rules. jurisdictional regulator—see the ICRC Act, section 4A (4) (National electricity rules—electricity distribution and transmission pricing).

32 Rights under licences The rights conferred by a licence— (a) are subject to the operation of this Act and each related law and, in particular, are subject to a declaration under section 18; and (b) are not exclusive, unless the licence provides otherwise.

33 Partnerships and other groups (1) A licence granted to a member of a group on behalf of the group is taken to have been granted to the group. (2) This Act and each related law apply to the group as if it were a person, but with the following changes: (a) a function that would be exercisable by the group may be exercised by any member; (b) an obligation that would be imposed on the group is imposed instead on each member, but may be discharged by any member; (c) a liability that would be imposed on the group is imposed instead, jointly and severally, on each member; (d) an offence against this Act or a related law that would otherwise be committed by the group is taken to have been committed by each member. (3) In a prosecution of a person for an offence that the person is taken to have committed because of subsection (2) (d), it is a defence if the person proves that he or she— (a) did not aid, abet, counsel or procure the relevant act or omission; or (b) was not in any way knowingly concerned in, or party to, the relevant act or omission (whether directly or indirectly and whether by any act or omission of the person). (4) If, under this Act or a related law, a document is given to a member of a group, it is taken to have been given to the group.

group means— (a) a partnership under the Partnership Act 1963; or (b) joint venturers or a consortium, syndicate or other unincorporated body of 2 or more people.

34 Applications for certain licence decisions An application for any of the following must be made to ICRC: (a) the grant of a licence; (b) ICRC’s agreement to the transfer of a licence; (c) the variation of a licence; (d) an exemption from compliance with a licence condition.

35 Further information (1) ICRC may, by written notice given to an applicant, require the applicant to give ICRC further stated information or documents that ICRC reasonably requires to determine the application. (2) ICRC is not required to determine an application until the applicant complies with the requirement.

36 Public consultation (1) Before ICRC makes a defined licence decision under this division, it may give public notice, and notice on the ICRC’s website, about the matter to be decided and invite submissions about that matter from interested people.

(2) The public notice must— (a) state where copies of relevant documents may be inspected; and (b) state— (i) where submissions may be lodged; and (ii) the closing date for submissions, that is at least 28 days after the day the notice is published. (3) If ICRC gives public notice under subsection (1) about a defined licence decision, it must not make the decision unless it has— (a) allowed the utility a reasonable opportunity— (i) to examine submissions lodged with ICRC in accordance with the public notice; and (ii) to make representations to ICRC about any matter raised in the submissions; and (b) considered the matters raised in all the submissions and representations properly made to ICRC. defined licence decision means a decision to— (a) grant a licence under section 37; or (b) vary a licence under section 38; or (c) exempt a utility under section 39; or (d) agree to the transfer of a licence under section 40. (a) in relation to the grant of a licence—means the applicant for the licence; and (b) in relation to the transfer of a licence—includes the intended transferee.

37 Grant (1) ICRC may, on application, grant a licence to a person to provide a utility service. Note 1 Under s 52, the ICRC must prepare a notice of a grant of a licence. The Note 2 If ICRC refuses to grant a licence, or grants a licence subject to a condition imposed by it, it must give a reviewable decision notice to the applicant for the licence (see s 43A). (2) ICRC must grant the licence if satisfied that— (a) the applicant has the capacity, as determined in accordance with the relevant technical and prudential criteria adopted by ICRC under section 26— (i) to comply with the licence conditions; and (ii) to operate a viable business as licensee; and (b) the applicant satisfies any other requirement that is relevant to ICRC’s objects under this Act. (3) A licence to provide utility services to franchise customers, whether exclusively or otherwise, may be granted by ICRC only with the written approval of the Minister. Note Under s 52, the ICRC must prepare a notice of a refusal of a licence. The

38 Variation (1) ICRC may, in writing, vary a utility’s licence— (a) on application by the utility; or (b) on its own initiative, by written notice given to the utility; or

(c) to include a condition on the recommendation of the technical regulator. Note 1 Under s 52, the ICRC must prepare a notice of a variation of a licence. The notice is a notifiable instrument. Note 2 If ICRC refuses to vary a licence, it must give a reviewable decision notice to the licensee (see s 43A). Note 3 For how documents may be given, see the Legislation Act, pt 19.5. (2) ICRC may vary a licence on its own initiative only if ICRC— (a) has given the utility reasonable notice of the proposed variation and its reasons for the variation; and (b) has allowed the utility a reasonable opportunity to make representations to ICRC about the proposal; and (c) has taken account of any representation; and (d) is satisfied that the variation is appropriate. (3) However, ICRC may vary a licence on its own initiative without complying with subsection (2) (a), (b) and (c) if satisfied that— (a) the variation is necessary or convenient— (i) to give effect to a direction by the Minister under section 19; or (ii) following a review of the licence under section 46; or (iii) because of an amendment of an Act or a subordinate law; or (b) the variation— (i) is unlikely to adversely affect anyone; and (ii) would not materially alter the licence.

(4) The ICRC may vary a utility’s licence on the recommendation of the technical regulator only if the ICRC— (a) receives written notice from the technical regulator recommending the variation under the Utilities (Technical Regulation) Act 2014, section 79; and (b) is satisfied on reasonable grounds that the variation is appropriate. (5) A variation takes effect— (a) on the day ICRC gives written notice of the variation to the utility; or (b) if the notice specifies a later date of effect—on that day. (6) A utility whose licence is varied on application by the utility must pay the determined fee (if any) to ICRC.

39 Exemption from licence condition (1) ICRC may, on application and by notice given to a utility, exempt the utility from compliance with a condition of its licence in relation to a stated activity or in stated circumstances. Note Under s 52, the ICRC must prepare a notice of an exemption from a condition of a licence. The notice is a notifiable instrument. (2) An exemption may be given in relation to a condition, whether imposed by this Act or by ICRC. (3) An exemption— (a) must state the period for which it is given; and (b) is subject to any further condition stated in the instrument of exemption. (4) This section does not limit ICRC’s other powers under this Act in relation to the licence.

(5) An exemption notice is a disallowable instrument.

40 Transfer (1) A licence is transferable only with ICRC’s written agreement. Note 1 Under s 52, the ICRC must prepare a notice of a transfer of a licence. The Note 2 If ICRC refuses to agree to the transfer of a licence, it must give a reviewable decision notice to the licensee (see s 43A). (2) ICRC may, on application, agree to a transfer of a licence only if satisfied that the intended licensee satisfies the requirements mentioned in section 37 (2) that apply at the time of the transfer. (3) A transfer takes effect— (a) on the day ICRC gives written notice of its agreement to the licensee; or (b) if the notice provides for a later date of effect—on that day. Note Under s 52, the ICRC must prepare a notice of a refusal to agree to transfer a licence. The notice is a notifiable instrument.

41 Surrender (1) A utility may surrender its licence by giving written notice of surrender to ICRC. Note Under s 52, the ICRC must prepare a notice of a surrender of a licence. The notice is a notifiable instrument. (2) The surrender takes effect— (a) 90 days after the day the written notice is given to ICRC; or (b) if ICRC accepts an earlier surrender—on the day ICRC gives written notice of the acceptance to the utility.

42 Revocation (1) Before ICRC revokes a licence, it must— (a) in writing, give the utility reasonable notice of the proposed revocation and its reasons for the revocation; and (b) allow the utility a reasonable opportunity to make representations to ICRC; and (c) take account of any representation; and (d) comply with any other requirements about revocation set out in the licence. (2) ICRC may, in writing, revoke a licence— (a) if— (i) in the past 5 years, the licensee has been convicted of 2 or more offences against this Act (other than a daily offence); and (ii) the offences involve a contravention of 1 or more licence conditions; and (iii) ICRC is satisfied that each contravention is material to the licensee’s continuing operations, having regard to the nature and scope of the activities to which the licence relates; or (b) if an annual licence fee, or any instalment, remains unpaid more than for 28 days after it is due for payment in accordance with the notice of the relevant determination under section 45. Note Under s 52, the ICRC must prepare a notice of a revocation of a licence. The notice is a notifiable instrument.

Division 3.3A Notification and review of ICRC decisions (3) A revocation takes effect— (a) on the day ICRC gives a reviewable decision notice about the revocation to the licensee; or (b) if the notice provides for a later date of effect—on that day. Division 3.3A Notification and review of ICRC decisions

43 Meaning of reviewable decision—div 3.3A reviewable decision means a decision mentioned in schedule 1, column 3 under a provision of this Act mentioned in column 2 in relation to the decision.

43A Reviewable decision notices If a person makes a reviewable decision, the person must give a reviewable decision notice to each entity mentioned in schedule 1, column 4 in relation to the decision. Note The person must also take reasonable steps to give a reviewable decision notice to any other person whose interests are affected by the decision (see ACT Civil and Administrative Tribunal Act 2008, s 67A).

43B Applications for review The following may apply to the ACAT for review of a reviewable decision: (a) an entity mentioned in schedule 1, column 4 in relation to the decision; (b) any other person whose interests are affected by the decision.

Annual licence fee Division 3.4

44 Liability (1) A person to whom a licence is granted must pay the annual licence fee to ICRC for each financial year, or part of a financial year, in which the licence is in force. (2) The fee is payable in accordance with the notice of the relevant determination under section 45.

45 Determination of fee (1) ICRC may determine the annual licence fee payable by each utility. Note Under s 52, the ICRC must prepare a notice of a determination of annual licence fees. The notice is a notifiable instrument. (2) The annual licence fee for a particular utility is the amount considered by ICRC to be a reasonable contribution towards the costs incurred, or expected to be incurred— (a) by the following in the exercise of functions, in the ACT or elsewhere, in relation to utility services: (i) ICRC; (ii) the technical regulator on behalf of the Territory; and (b) by the ACAT in hearing and deciding matters to which a utility is a party. (3) The matters that ICRC must have regard to when working out the costs mentioned in subsection (2) include, for example— (a) the extent of those costs in relation to each utility; and (b) the annual licence fees payable by all utilities; and (c) the relative scope and nature of the services provided by all

(4) A determination must be in writing stating the following matters: (a) ICRC’s findings on the matters mentioned in subsections (2) and (3) in relation to the relevant utility; (b) the amount of the fee and the way it is worked out; (c) ICRC’s reasons for the amount of the fee and any instalment; (d) how the fee is to be paid (for example, as a lump sum, or by instalments). (5) ICRC must give to a utility— (a) a copy of the determination of each annual licence fee payable by the utility; and (b) written notice stating when the fee, or any instalment, is due for payment. (6) The day on which an annual licence fee, or any instalment, is due for payment must be at least 28 days after the day the notice is given to the relevant utility. costs does not include— (a) costs payable by a utility under the ICRC Act; and (b) any fees, charges, costs or other amounts prescribed under the regulations for this definition. Example for par (a) costs of an investigation on an industry reference into a regulated industry under the ICRC Act, s 19

Review and enforcement Division 3.5

46 Review of licence conditions (1) ICRC may review a licence at any time to determine whether the licence conditions are appropriate for achieving ICRC’s objects under this Act. (2) ICRC must give public notice of a proposed review. (3) The notice must state the following matters: (a) ICRC’s objects under this Act; (b) the purpose of the review; (c) the identity of the utility; (d) the utility services to which the licence relates; (e) where a copy of the licence may be inspected; (f) where submissions in relation to the review should be lodged; (g) the closing date for submissions, that is at least 28 days after the day on which the notice is published. (4) For a review, ICRC must ensure that the utility has a reasonable opportunity— (a) to examine submissions lodged with ICRC in accordance with the public notice; and (b) to make representations to ICRC about any matter raised in the submissions.

(5) ICRC must not finish a review unless it has— (a) given the utility and each person who made a submission in accordance with the public notice a written statement of its expected findings and supporting reasons and the action (if any) that ICRC proposes to take because of the review; and (b) allowed the utility and each such person a reasonable opportunity to make further representations to ICRC; and (c) considered the matters raised in all the submissions and representations duly made to ICRC. (6) When ICRC finishes a review, it must— (a) give the utility a written statement of its findings and supporting reasons and the action (if any) taken by ICRC because of the review; and (b) give public notice of the findings of the review and the place where a record of the statement is available for public inspection.

47 Contravention of licence condition (1) A utility must not, without reasonable excuse, contravene a condition of its licence. (2) A utility that, without reasonable excuse, contravenes a condition of its licence commits a separate offence for each day (after the first day) during any part of which the contravention continues without reasonable excuse.

Review and enforcement Division 3.5 fine not exceeding 600 penalty units.

48 Directions about licence condition (1) This section applies if ICRC is satisfied that a utility has contravened, or is likely to contravene, a condition of its licence. (2) ICRC may give a direction under this section only if it has taken reasonable steps to consult the utility concerned about the giving of the direction. (3) ICRC may give a written direction to the utility to take action stated in the direction to ensure compliance with the condition, including action— (a) to rectify the contravention; or (b) to avoid the likely contravention.

49 Directions about accounts and records (1) If ICRC is satisfied that it is necessary or convenient to do so in relation to the exercise of its functions under the ICRC Act, part 3, 4, 4A or 4B, ICRC may give a written direction to a utility about the keeping of accounts and records in relation to the utility’s functions under this Act. (2) A direction may require the utility, for example, to do 1 or more of the following: (a) to set up and maintain separate accounts for a stated activity; (b) to set up and maintain a consolidated set of accounts for a stated activity; (c) to apportion costs shared between different activities in a stated way;

(d) to deal with information about its functions under this Act in a stated way; (e) to keep records of a stated class; (f) to maintain accounts or records in a stated way.

50 Contravention of direction (1) A utility must not, without reasonable excuse, contravene a direction under section 48 or 49. Maximum penalty: 2 000 penalty units. (2) A utility that, without reasonable excuse, contravenes a direction under section 48 or 49 commits a separate offence for each day (after the first day) during any part of which the contravention continues without reasonable excuse. fine not exceeding 200 penalty units.

51 Protection of personal information (1) This section applies to personal information gained by a utility in relation to the provision of a utility service. (2) A utility, when dealing with personal information, must comply with— (a) the Australian Privacy Principles; and (b) the Privacy Act, part 3A (Credit reporting); and (c) the registered CR code. Australian Privacy Principles means the Australian Privacy Principles under the Privacy Act, schedule 1.

Miscellaneous Division 3.6 Privacy Act means the Privacy Act 1988 (Cwlth). registered CR code—see the Privacy Act, section 26M. Note The registered CR code is a written code of practice about credit reporting registered under the Privacy Act.

52 Public notice of licence decisions (1) ICRC must prepare a notice of each of the following matters as soon as possible after it happens: (a) the grant of a utility licence under section 37 (Grant); (b) the refusal of a utility licence under section 37 (Grant); (c) the variation of a utility licence under section 38 (Variation); (d) an exemption from compliance with a utility licence condition under section 39 (Exemption from licence condition); (e) ICRC’s agreement to the transfer of a utility licence under section 40 (Transfer); (f) ICRC’s refusal to agree to the transfer of a utility licence under section 40 (Transfer); (g) the surrender of a utility licence under section 41 (Surrender); (h) the revocation of a utility licence under section 42 (Revocation); (i) the determination of an annual licence fee for a utility under section 45 (Determination of fee). (2) The notice must include a statement about the rights available under section 53 in relation to documents about the matter. (3) The notice is a notifiable instrument.

53 Public access to licences etc (1) ICRC must make copies of each of the documents mentioned in subsection (2) available for inspection by members of the public— (a) during ordinary office hours at the office of ICRC; and (b) at any other place determined by ICRC; and (c) on ICRC’s web site on the Internet. (2) Subsection (1) applies to each of the following documents: (a) each utility licence; (b) a record of each of the following decisions by ICRC: (i) to grant a utility licence; (ii) to refuse to grant a utility licence; (iii) to vary a utility licence; (iv) the determination of an annual licence fee; (v) to grant an exemption from compliance with a licence condition; (vi) to agree to the transfer of a utility licence; (vii) to refuse to agree to the transfer of a utility licence; (viii) to revoke a utility licence; (c) ICRC’s findings on a review under section 46, and its supporting reasons; (d) the notice of the surrender of a licence. (3) A person may— (a) without charge, inspect a document made available in accordance with subsection (1); and

Miscellaneous Division 3.6 (b) make a copy of all or part of the document, during ordinary office hours, at ICRC’s office. (4) If a person requests that a copy be made available in electronic form, ICRC may provide the relevant information— (a) on a data storage device; or (b) by electronic transmission. (5) The ICRC Act, section 46 does not apply to a document mentioned in subsection (2).

54 Annual reports—technical and environmental matters (1) As soon as practicable after ICRC receives an annual report by a utility in accordance with the licence condition mentioned in section 25 (2) (d), it must— (a) give a copy of the technical section of the report to the technical regulator; and (b) give a copy of the environmental section of the report to— (i) the environment protection authority; and (ii) the director-general responsible for the Water Resources Act 2007. (2) For this section— (a) the technical section of the report is the part concerning the utility’s compliance with the requirements under this Act in relation to technical codes; and (b) the environmental section of the report is the part concerning the utility’s compliance with the requirements under this Act in relation to the protection of the environment. (3) Without limiting the requirements mentioned in section 25 (2) (d), ICRC may, in writing, require a utility to prepare annual reports with separate technical and environmental sections.

Note 1 This part is a tax law under the Taxation Administration Act 1999. As a tax law, this part is subject to provisions of the Taxation Administration Act 1999 about the administration and enforcement of tax laws generally. Note 2 This part applies to NERL retailers (see s 75B).

54A Definitions—pt 3A administrator—see section 54N. base amount—see section 54G (3). determined means determined by the administrator under this part. energy industry sector—see section 54D (1). energy utility—see section 54D (2). energy utility service—see section 54D (3). levy means the levy under section 54C. levy year—see section 54C (1). local regulatory cost—see section 54F (1). national regulatory cost—see section 54E (2). national regulatory obligations—see section 54E (1). net regulatory cost—see section 54G (2). regulatory cost—see section 54G (1). year means financial year.

54B Purpose—pt 3A The purpose of this part is to impose a levy on energy utilities to recover the amount of the Territory’s national regulatory costs, and local regulatory costs, in relation to the energy industry sectors.

54C Energy industry levy—imposition (1) If an energy utility provides an energy utility service in an energy industry sector at any time during a year (the levy year), the utility is liable to pay a levy in relation to the net regulatory cost for that year. (2) The levy for the levy year is worked out as follows: B + EV + (AV − EV−1) where: AV means the actual variable amount for the energy utility for the previous levy year worked out as follows: (ANR - (B−1 × NC−1)) × M−1 B is the base amount for the levy year determined under section 54GA (2). EV means the estimated variable amount for the energy utility for the levy year worked out as follows: (ENR - (B × NC)) × M−1 EV-1 means the estimated variable amount for the energy utility for the previous levy year worked out as follows: (ENR−1 − (B−1 × NC−1)) × M−2 (3) If an energy utility does not provide an energy utility service in an energy industry sector in the levy year, but provided an energy utility service in the sector in the previous year— (a) B is taken to be zero in relation to the utility for the levy year; and

(b) EV is taken to be zero in relation to the utility for the levy year. (4) If an energy utility provides an energy utility service in an energy industry sector in the levy year, but did not provide an energy utility service in the sector in the previous year— (a) AV is taken to be zero in relation to the utility for the levy year; and (b) EV-1 is taken to be zero in relation to the utility for the levy year. ANR means the actual net regulatory cost for the energy industry sector for the previous levy year determined under section 54GA (1) (b). B-1 means the base amount for the previous levy year determined under section 54GA (2). ENR means the estimated net regulatory cost for the energy industry sector for the levy year determined under section 54GA (1) (a). ENR-1 means the estimated net regulatory cost for the energy industry sector for the previous levy year determined under section 54GA (1) (a). market share, for an energy utility for a levy year means— (a) for an electricity distributor—the total number of megawatt hours of electricity distributed in the ACT by the distributor in that year, divided by the total number of megawatt hours of electricity distributed in the ACT in that year; and (b) for an NERL retailer that supplies electricity—the total number of megawatt hours of electricity sold in the ACT by the retailer in that year, divided by the total number of megawatt hours of electricity sold in the ACT in that year; and

(c) for a gas distributor—the total number of megajoules of gas distributed in the ACT by the distributor in that year, divided by the total number of megajoules of gas distributed in the ACT in that year; and (d) for an NERL retailer that supplies gas—the total number of megajoules of gas sold in the ACT by the retailer in that year, divided by the total number of megajoules of gas sold in the ACT in that year. M-1 means the market share of the energy utility for the previous levy year. Note Before 1 October in a levy year, the administrator must determine, for the year before the levy year, the total number of megawatt hours of electricity or megajoules of gas distributed or sold in the ACT by all energy utilities in each energy sector in the year (see s 54H (1) (b) (ii)). M-2 means the market share of the energy utility for the levy year before the previous levy year. NC, for an energy industry sector for a levy year, means the number of energy utilities that provided an energy utility service in the sector before 30 August in the levy year as determined under section 54H (1) (a). NC-1, for an energy industry sector for a levy year, means the number of energy utilities that provided an energy utility service in the sector at any time during the previous levy year as determined under section 54H (1) (b) (i).

54D Energy industry sectors etc (1) For this part, each of the following is an energy industry sector: (a) the electricity distribution sector; (b) the electricity supply sector; (c) the gas distribution sector;

(d) the gas supply sector; (e) an energy industry sector prescribed by regulation. (2) For this part, an energy utility is a utility that provides, or has provided, an energy utility service. (3) For this part, an energy utility service is any of the following: (a) electricity distribution; (b) electricity supply; (c) gas distribution; (d) gas supply. electricity distribution means the distribution of electricity through an electricity network. electricity supply means the supply of electricity from an electricity network to premises for consumption. gas distribution means the distribution of gas through a gas distribution network. gas supply means the supply of gas from a gas distribution network to premises for consumption.

54E National regulatory obligations and costs (1) For this part, the national regulatory obligations are the Territory’s obligations under the AEMA in relation to— (a) cost-sharing arrangements for funding the AEMC in relation to the exercise of its functions; and (b) the Ministerial Council’s responsibilities under the AEMA.

(2) For this part, the national regulatory cost for a year is the amount determined under this section to be the cost to the Territory of meeting its national regulatory obligations for the year. (3) The administrator must, before 1 October in the levy year, in accordance with this section, determine— (a) the estimated national regulatory cost to be applied to each energy industry sector for the levy year; and (b) the actual national regulatory cost to be applied to each energy industry sector for the year before the levy year. (4) In determining the estimated national regulatory cost to be applied to an energy industry sector for a levy year, the administrator must— (a) consider the following: (i) the AEMC’s budget, or draft budget, for its functions for the year; (ii) the Ministerial Council’s budget, or draft budget, for its functions under the AEMA for the year; (iii) the amount, if any, allocated for the AEMC and Ministerial Council by the Territory for the year; (iv) the annual costs incurred by the AEMC and Ministerial Council in previous years in relation to the ACT; (v) the annual costs incurred by the Territory in previous years for activities undertaken by the AEMC and Ministerial Council; and (b) apportion the estimated national regulatory cost between energy

(5) In determining the actual national regulatory cost to be applied to an energy industry sector for the year before the levy year, the administrator must— (a) consider the amount payable by the Territory for its national regulatory obligations for the previous year; and (b) apportion the actual national regulatory cost between energy (6) A determination under this section is a notifiable instrument. AEMA means the Australian Energy Market Agreement 2004, as amended in 2006, between the Commonwealth, State and Territory Governments. AEMC means the Australian Energy Market Commission under the Australian Energy Market Commission Establishment Act 2004 (SA). Ministerial Council means a body (however described) that consists of the Minister of the Commonwealth, and the Minister of each State and Territory, who is responsible, or principally responsible, for matters relating to energy.

54F Local regulatory costs (1) For this part, the local regulatory cost for a year is the amount determined by the administrator to be the cost to the Territory of— (a) providing regulatory activities in relation to safety, technical operations, consumer service and environmental behaviour for energy utility services; and (b) the administration of the levy.

(2) The administrator must, before 1 October in the levy year, in accordance with this section, determine— (a) the estimated local regulatory cost to be applied to each energy industry sector for the levy year; and (b) the actual local regulatory cost to be applied to each energy industry sector for the year before the levy year. (3) In determining the estimated local regulatory cost for an energy industry sector for a levy year, the administrator must— (a) consider the following: (i) the budget, or draft budget, for local regulatory activities for the year; (ii) the costs incurred in previous years for local regulatory activities; and (b) apportion the estimated local regulatory cost between energy (4) In determining the actual local regulatory cost for an energy industry sector for a year before a levy year, the administrator must apportion the actual local regulatory cost between energy industry sectors having regard to the costs attributable to each sector. (5) A determination under this section is a notifiable instrument.

54G Annual regulatory costs etc (1) For this part, the regulatory cost for an energy industry sector for a year is the sum of the amounts determined by the administrator to be— (a) the national regulatory cost to be applied to the sector for the (b) the local regulatory cost to be applied to the sector for the year.

(2) For this part, the net regulatory cost for an energy industry sector for a year is the regulatory cost for the sector for the year less the total amount of annual licence fees determined under section 45 (Determination of fee) for all energy utilities in the sector for the year. (3) For this part, the base amount for an energy industry sector is the minimum additional cost of regulating 1 more energy utility in the energy industry sector for a period of 1 year. 54GA Regulatory cost—determinations (1) The administrator must, before 1 October in a levy year, determine— (a) the estimated net regulatory cost to be applied to each energy industry sector for the levy year; and (b) the actual net regulatory cost to be applied to each energy industry sector for the previous levy year. (2) The administrator must, before 1 October in a year and every 5 years after the first determination, determine the base amount for an energy industry sector. (3) The administrator may amend a determination under subsection (2) in extraordinary circumstances. Example—extraordinary circumstances A large number of energy utilities unexpectedly enter the energy industry sector. (4) A determination under this section is a notifiable instrument.

54H Further energy sector determinations (1) For this part, the administrator must, before 1 October in the levy year, determine the following: (a) for the levy year—the number of energy utilities that provided an energy utility service in each energy utility sector at any time before 30 August in the year;

(b) for the year before the levy year— (i) the number of energy utilities that provided an energy utility service in each energy industry sector at any time during the year; and (ii) having regard to statements lodged under section 54I, the total number of megawatt hours of electricity or megajoules of gas distributed or sold in the ACT by all energy utilities in each energy industry sector in the year. (2) A determination under this section is a notifiable instrument.

54I Production of distribution and sales information (1) An energy utility must lodge a statement for a levy year if the utility provided an energy utility service in the ACT at any time before

30 August in the levy year or during the previous year. (2) The statement for a year must— (b) be lodged with the administrator not later than 30 August in the (c) state— (i) for an electricity distributor—the total number of megawatt hours of electricity distributed by the distributor in the ACT in the previous year; and (ii) for a NERL retailer that supplies electricity—the total number of megawatt hours of electricity sold by the retailer in the ACT in the previous year; and (iii) for a gas distributor—the total number of megajoules of gas distributed by the distributor in the ACT in the previous

(iv) for a NERL retailer that supplies gas—the total number of megajoules of gas sold by the retailer in the ACT in the previous year; and (v) the way the energy utility calculated the number of megawatt hours or megajoules mentioned in subparagraphs (i) to (iv). Note It is an offence to make a false or misleading statement, give false or misleading information or produce a false or misleading document (see Criminal Code, pt 3.4).

54J Production of relevant information etc (1) The administrator may, by written notice given to an energy utility, require the utility to give the administrator relevant information or documents that the administrator reasonably requires for this part. Note The Legislation Act, s 170 and s 171 deal with the application of the privilege against self-incrimination and client legal privilege. (2) The notice must state— (a) the information or document required by the administrator; and (b) where or how the information or document is to be given to the administrator; and (c) when the information or document must be given to the administrator. (3) An energy utility commits an offence if the utility contravenes a requirement of a notice given to the utility under subsection (1). Maximum penalty: 50 penalty units, imprisonment for 6 months or

54K Registration of energy utilities (1) The commissioner for revenue must register an energy utility if the (a) provides an energy utility service in the ACT; and (b) has applied to the commissioner for registration as an energy (2) The commissioner for revenue must tell the administrator about the registration of an energy utility under subsection (1).

54L Offence—failure to register (1) A person commits an offence if— (a) the person becomes an energy utility; and (b) the person does not apply to the commissioner for revenue to be registered as an energy utility within 90 days after the day the person becomes an energy utility. Maximum penalty: 50 penalty units. (2) Strict liability applies to subsection (1) (a).

54M Returns under Taxation Administration Act (1) An energy utility must lodge a return for a levy year if the utility provided an energy utility service in the ACT at any time— (a) before 1 October in the year; or (b) during the previous year. (2) The return for a year must— (b) be lodged with the commissioner for revenue not later than the return deadline; and

(c) state— (i) for an electricity distributor—the total number of megawatt hours of electricity distributed by the distributor in the ACT in the previous year; and (ii) for a NERL retailer that supplies electricity—the total number of megawatt hours of electricity sold by the retailer in the ACT in the previous year; and (iii) for a gas distributor—the total number of megajoules of gas distributed by the distributor in the ACT in the previous (iv) for a NERL retailer that supplies gas—the total number of megajoules of gas sold by the retailer in the ACT in the previous year; and (v) the way the energy utility calculated the number of megawatt hours or megajoules mentioned in subparagraphs (i) to (iv). Note It is an offence to make a false or misleading statement, give false or misleading information or produce a false or misleading document (see Criminal Code, pt 3.4). return deadline, for a return for a year, means— (a) 31 October in the year; or (b) if the deadline is extended under the Taxation Administration Act 1999, section 40—the date by which the return must be lodged under that section.

54N Levy administrator The Minister may appoint a public servant to be the administrator for this part. Note 1 For the making of appointments (including acting appointments), see the Legislation Act, pt 19.3. Note 2 In particular, an appointment may be made by naming a person or nominating the occupant of a position (see Legislation Act, s 207). Note 3 A person’s appointment also ends if the person resigns (see Legislation Act, s 210).

54O Administrator to publish information The administrator must publish the following information: (a) an explanation of the purpose of the energy industry levy; (b) an explanation of how the energy industry levy is calculated; (c) an annual statement about the data relied on by the administrator to determine— (i) national regulatory costs under section 54E; and (ii) local regulatory costs under section 54F; and (iii) net regulatory costs under section 54G; and (iv) base amounts under section 54G; (d) an outline of the administrative practices adopted by the administrator in administering the energy industry levy; (e) an explanation of the obligations of energy utilities in relation to the energy industry levy under the Act.

Note This part applies to NERL retailers (see s 75B).

55 Contents (1) An industry code may set out practices, standards and other matters about the provision of a utility service. (2) An industry code may deal, for example, with 1 or more of the following matters: (a) network boundaries; (b) connections to a network; (c) a GSL scheme within the meaning of the National Energy Retail Law (ACT); (d) other utility service standards; (e) the protection of customers and consumers; (f) the metering of utility services; (g) the provision of utility services generally; (h) the termination or interruption of utility services; (i) disconnections from a network; (j) arrangements between licensed distributors and suppliers concerning the use of a network; (k) the development of a network. Note An industry code may also deal with electricity pricing information for certain customers—see s 75GA. (3) An industry code may deal with a matter by stating requirements to be dealt with by the terms of a standard customer contract for a utility service.

(4) An industry code may apply, adopt or incorporate (with or without change) an instrument as in force from time to time. Note 1 A statutory instrument may also apply, adopt or incorporate (with or without change) a law or instrument as in force at a particular time (see Legislation Act, s 47 (1)). Note 2 If a statutory instrument applies, adopts or incorporates a law or instrument may be taken to be a notifiable instrument that must be notified under the Legislation Act (see s 47 (2) to (6)). Note 3 A reference to an instrument includes a reference to a provision of an instrument (see Legislation Act, s 14 (2)).

56 Application (1) For this Act, an industry code applies to a utility (other than a NERL retailer) if it applies to the provision of utility services of a kind that the utility is licensed to provide. (2) For this Act, an industry code applies to a NERL retailer if a determination under section 56A provides that it applies to the retailer. (3) An industry code may apply to— (a) a utility service of a stated class or utility services generally; or (b) a stated utility, a utility of a stated class or utilities generally; and may make different provisions for different classes of services or (4) An industry code has no effect to the extent of any inconsistency with this Act, a related law or a technical code.

56A NERL retailers—determination of application of code (1) The ICRC may determine that an industry code applies to a NERL retailer if the ICRC is satisfied on reasonable grounds that it is appropriate for the code to apply to the retailer. Note Power to make a statutory instrument (including a disallowable instrument) includes power to make different provision for different categories (see Legislation Act, s 48). (2) A determination is a disallowable instrument.

57 Draft codes (1) ICRC must consider a draft industry code submitted for approval by— (a) a utility; or (b) a person whom ICRC is satisfied represents a utility or 2 or more (2) ICRC may give a written direction to a utility to submit a draft industry code about a stated matter to ICRC for consideration. (3) A utility must comply with a direction within the period stated in the direction, being a period that ICRC is satisfied is reasonable in the circumstances.

58 Approved codes (1) ICRC may— (a) approve; or (b) refuse to approve; an industry code a draft of which has been submitted in accordance with section 57.

(2) ICRC may approve an industry code only if— (a) it has consulted the Minister, and the Minister responsible for the Utilities (Technical Regulation) Act 2014, in relation to the code; and (b) is satisfied that— (i) the code is not inconsistent in material respects with another industry code or a technical code; and (ii) the requirements of section 60 for public consultation have been satisfied; and (iii) the code is appropriate. (3) ICRC must give the proponent of a draft industry code submitted in accordance with section 57 written notice of its decision on the draft code. (4) If ICRC refuses to approve an industry code, the notice of the decision must set out the reasons for the refusal and may— (a) state any matter that ICRC is satisfied requires further consideration or development; and (b) require the proponent to submit a further draft industry code to ICRC for consideration. (5) If subsection (4) (b) applies, the notice must state the period, that ICRC is satisfied is reasonable in the circumstances, within which the further draft industry code is to be submitted. (6) ICRC must, as soon as practicable, give a copy of each approved code to each utility to which the code would apply.

59 Determined codes (1) ICRC may determine an industry code if it— (a) has consulted the Minister, and the Minister responsible for the Utilities (Technical Regulation) Act 2014, in relation to the code; and (b) is satisfied that— (i) the code is not inconsistent in material respects with another industry code or a technical code; and (ii) it is necessary or convenient to determine the code. (2) ICRC may determine an industry code, for example, in the following circumstances: (a) if a utility fails to submit a draft industry code in accordance with a direction under section 57; (b) the proponent of a draft industry code fails to submit a further draft of the code in accordance with a requirement in a notice of refusal under section 58; (c) ICRC is satisfied that a draft industry code submitted for consideration or approval is not appropriate; (d) to give effect to a direction by the Minister under section 19. (3) ICRC must, as soon as practicable, give a copy of each determined code to each utility to which the code would apply.

60 Public consultation (1) Before ICRC approves or determines an industry code, it must— (a) give public notice that— (i) states that the draft code has been prepared; and

(ii) states the place or places where copies of the draft code may be inspected or obtained; and (iii) invites interested people to make submissions to ICRC about the draft code within the period stated in the notice. Note Public notice means notice on an ACT government website or in a daily newspaper circulating in the ACT (see Legislation Act, dict, pt 1). (b) make copies of the draft code available for public inspection in accordance with the notice. (2) The period stated in the notice must run for at least 30 days after the publication of the notice. (3) ICRC must have due regard to any submission made in accordance with the notice when approving or determining the industry code.

61 Variation (1) ICRC may approve, or determine, a variation of an industry code and, for that purpose, the other sections of this part apply to the variation, subject to subsections (2) and (3), in the same way as they apply to a new industry code. (2) ICRC may approve a variation of an industry code under section 58 without the public consultation required by section 60 if— (a) apart from the proponent, each utility to which the code applies has given ICRC written notice of its agreement to the variation; or (b) ICRC is satisfied that the variation is necessary or convenient— (i) to give effect to a direction by the Minister under section 19; or (ii) following a review of a licence under section 46; or (iii) because of an amendment of an Act or a subordinate law; or

(c) ICRC is satisfied that the variation is unlikely to adversely affect anyone and would not materially alter the code. (3) ICRC may determine a variation of an industry code under section 59 on its own initiative, without the public consultation required by section 60, in the circumstances mentioned in subsection (2) (b) or (c).

62 Notification and disallowance of codes etc Each of the following is a disallowable instrument: (a) an industry code approved under section 58 (Approved codes); (b) an industry code determined under section 59 (Determined codes); (c) the variation of an industry code approved or determined under section 61 (Variation).

63 Public access (1) ICRC must make copies of each of the documents mentioned in subsection (2) available for public inspection during ordinary office hours, at the office of ICRC and any other place determined by ICRC. (2) Subsection (1) applies to each of the following documents: (a) each industry code; (b) a record of each of the following decisions by ICRC: (i) to approve an industry code; (ii) to refuse to approve an industry code, a draft of which has been submitted to ICRC for consideration; (iii) to determine an industry code; (iv) to approve, or determine, a variation of an industry code.

(3) A person may inspect, or make a copy of, all or part of a document mentioned in subsection (2). (4) If a person requests that a copy be made available in electronic form, ICRC may provide the relevant information— (a) on a data storage device; or (b) by electronic transmission. (5) The ICRC Act, section 46 does not apply to a document mentioned in subsection (2).

Part 5A NERL retailers and NERL exempt sellers

75 Meaning of NERL retailer In this Act: NERL retailer means a person who holds a retailer authorisation under the National Energy Retail Law (ACT).

75A Meaning of NERL exempt seller NERL exempt seller means a person who is exempted by the AER under the National Energy Retail Law (ACT) from the requirement to hold a retailer authorisation. AER means the Australian Energy Regulator established under the Competition and Consumer Act 2010 (Cwlth), section 44AE (Establishment of the AER).

75B Application of Act to NERL retailers (1) The relevant parts of this Act apply in relation to a NERL retailer as if— (a) a reference to a utility were a reference to a NERL retailer; and (b) for the relevant parts of this Act other than part 4 (Industry codes)—a reference to a utility service were a reference to the activity of selling electricity or gas to a person for premises; and

Preliminary Division 5A.1 (c) for part 4—a reference to a utility service were a reference to the activity of selling electricity or gas to a person for premises, and included the action required by a NERL retailer under the Electricity Feed-in (Renewable Energy Premium) Act 2008, section 6 (3) (Feed-in from renewable energy generators to electricity network); and (d) a reference to a customer were a reference to a customer under the National Energy Retail Law (ACT); and (e) any other necessary changes were made. relevant parts, of this Act, mean the following: (a) part 3A (Energy industry levy); (b) part 4 (Industry codes); (c) part 10 (Enforcement); (d) part 11 (Certain causes of action against customer); (e) part 12 (Complaints to ACAT about utilities); (f) part 13 (Community service obligations).

75C Application of Act to NERL exempt sellers (1) The relevant parts of this Act apply in relation to a NERL exempt seller as if— (a) a reference to a utility were a reference to a NERL exempt seller; and (b) a reference to a utility service were a reference to the activity of selling electricity or gas to a person for premises; and (c) a reference to a customer were a reference to a customer under the National Energy Retail Law (ACT); and (d) any other necessary changes were made.

relevant parts, of this Act, mean the following: (a) part 10 (Enforcement); (b) part 11 (Certain causes of action against customer); (c) part 12 (Complaints to ACAT about utilities).

75D Inconsistency between Act and NERL (1) The National Energy Retail Law (ACT) prevails if there is an inconsistency between this Act in its application to a NERL retailer or NERL exempt seller and that Law. Note 1 A reference to the National Energy Retail Law (ACT) includes a reference to the statutory instruments made or in force under that Law, including the National Energy Retail Regulation (ACT) and the national energy retail rules (see National Energy Retail Law (ACT) Act 2012, s 9 (2) and Legislation Act, s 104). Note 2 A reference to an Act includes a reference to the statutory instruments made or in force under the Act, including any regulation (see Legislation (2) This Act is taken to be consistent with that Law to the extent that it is capable of operating concurrently with that Law.

Subdivision 5A.2.1 Greenpower

75E Greenpower obligations—general (1) A NERL retailer must— (a) first offer a greenpower product to a person who proposes to purchase electricity for premises from the retailer; and (b) have a greenpower product available for purchase by its customers to whom it sells or supplies electricity.

(2) Subsection (1) (a) does not apply to a NERL retailer in relation to— (a) a person for whom the retailer is acting as designated RoLR in relation to a RoLR event under the National Energy Retail Law (ACT); or (b) a person who is a move-in customer or carry-over customer; or (c) a transaction with a person if the retailer must obtain the person’s explicit informed consent for the transaction under the National Energy Retail Law (ACT), section 38 (Requirement for explicit informed consent for certain transactions). (3) If a small customer stops, or proposes to stop, purchasing a greenpower product from a NERL retailer, the retailer must not impose a charge (however described) on the small customer in relation to the cessation. carry-over customer—see the National Energy Retail Law (ACT), section 2 (1). customer—see the National Energy Retail Law (ACT), section 5. designated RoLR—see the National Energy Retail Law (ACT), section 122. greenpower product—see the National GreenPower Accreditation Program: Program Rules, Appendix D (Definition of Terms), made by the National GreenPower Steering Group, as in force from time to time. Note The National GreenPower Accreditation Program: Program Rules are accessible at www.greenpower.gov.au. move-in customer—see the National Energy Retail Law (ACT), section 2 (1).

RoLR event, in relation to a retailer—see the National Energy Retail Law (ACT), section 122.

75F Greenpower obligations—information on bills (1) If a customer purchases a greenpower product from a NERL retailer, the retailer must include greenpower information on each bill issued by the retailer to the customer. (2) However, subsection (1) does not apply if the information is not reasonably available to the retailer. customer—see the National Energy Retail Law (ACT), section 5 (Meaning of customer and associated terms). greenpower information, in relation to a customer, means information about the amount of electricity (stated as a percentage or otherwise) used or purchased by the customer that relates to the customer’s greenpower product. greenpower product—see section 75E (4). Note See the national energy retail rules, r 25 (Contents of bills (SRC and MRC)).

75G Exemption from greenpower obligations (1) The Minister may exempt a NERL retailer from having to comply with section 75E (Greenpower obligations—general) or section 75F (Greenpower obligations—information on bills) if the Minister is satisfied on reasonable grounds that the exemption is in the public interest. Note Power to make a statutory instrument (including a disallowable instrument) includes power to make different provision for different categories (see Legislation Act, s 48).

(2) An exemption is subject to compliance with any condition stated in the exemption. (3) An exemption is a disallowable instrument. Subdivision 5A.2.1A Electricity pricing information for small customers 75GA Obligation to give electricity price information (1) If a NERL retailer tells a small customer for premises about the price of supplying electricity to the small customer, the retailer must also tell the small customer the difference between— (a) the reference price for the electricity; and (b) the retailer’s price for the electricity for the same period. (2) For subsection (1), a NERL retailer tells a small customer for premises about the price of supplying electricity to the small customer— (a) if the retailer offers to supply electricity to the small customer at the price; or (b) if the retailer advertises or publishes the price; or (c) if the price of the electricity supplied by the retailer to the small customer changes—if the retailer tells the small customer the new price. (3) If a NERL retailer supplies electricity to a small customer for premises and it has a better offer in relation to the supply of the electricity to the small customer, the retailer must tell the small customer that there is a better offer.

(4) To assist a small customer to make an informed decision about electricity offered for supply or supplied to the small customer, an industry code may provide for— (a) how and when information mentioned in subsections (1) and (3) must be given by the NERL retailer to the small customer; and (b) what other information the NERL retailer must give to the small customer in relation to the matters mentioned in subsections (1) and (3). better offer, in relation to the supply of electricity to a small customer by a NERL retailer, means a discount or alternative offer for the supply of the electricity by the retailer that, if the small customer were to accept, may reduce the amount payable by the small customer for the electricity. conditional discount, in relation to the retailer’s price of electricity, means a reduction (however described) in the price a small customer would have to pay for the electricity supplied by the NERL retailer if certain conditions were met other than a condition relating to the circumstances in which the small customer enters into a contract with the NERL retailer for the supply of the electricity. price— (a) includes a charge of any description, including a recurring fee; but (b) does not include any of the following: (i) a one-off fee; (ii) a fee for making, or failing to make, a payment in particular circumstances;

(iii) a fee for a service provided on request or because of special circumstances. Examples 1 par (a)—an annual membership fee 2 par (b) (i)—a connection or reconnection fee, an account establishment fee 3 par (b) (ii)—a credit card transaction fee, late payment fee, direct debit dishonour fee 4 par (b) (iii)—a fee for a meter read requested by a customer reference price, of electricity—see section 75GB (1) (b). representative consumption, of electricity—see section 75GB (1) (a). retailer’s price, in relation to a NERL retailer, means the total price a small customer would have to pay if the NERL retailer supplied the representative consumption of electricity to the customer disregarding any conditional discounts. 75GB Determination of representative consumption and reference price (1) The Minister and Treasurer must jointly, for each year, determine in relation to the supply of electricity to a small customer for premises— (a) an amount of electricity (the representative consumption) they consider broadly represents the amount of electricity supplied to the small customer each year at the time they make the determination; and (b) an annual price (the reference price) for the supply of the representative consumption of electricity to the small customer they consider is reasonable. Note Power to make a determination includes power to make different provision in relation to different classes of small customers (see Legislation Act, s 48).

(2) A determination is a notifiable instrument. Subdivision 5A.2.2 Enforcement

75H Offence—contravention of code, s 75E or s 75GA (1) A NERL retailer commits an offence if the retailer contravenes— (a) an industry code or technical code that applies to the retailer; or (b) section 75E (Greenpower obligations—general); or (c) section 75GA (Obligation to give electricity price information). (2) A NERL retailer who contravenes subsection (1) commits a separate offence for each day (after the first day of the contravention) during any part of which the contravention continues. Maximum penalty (for each day): 600 penalty units. (3) This section does not apply to a NERL retailer if the retailer has a reasonable excuse for the contravention. Note The defendant has an evidential burden in relation to the matters mentioned in s (3) (see Criminal Code, s 58).

75I Directions about code, s 75E or s 75GA (1) This section applies if the ICRC is satisfied that a NERL retailer has contravened, or is likely to contravene— (a) an industry code that applies to the retailer; or (b) section 75E (Greenpower obligations—general); or (c) section 75GA (Obligation to give electricity price information). (2) The ICRC may give a written direction to the retailer to take action stated in the direction to ensure compliance with the code, section 75E or section 75GA, including action— (a) to rectify the contravention; or (b) to avoid the likely contravention. (3) The ICRC may give a direction under this section only if it has taken reasonable steps to consult the retailer about the giving of the direction.

75J Offence—contravention of direction (1) A NERL retailer commits an offence if the retailer contravenes a direction under section 75I. Maximum penalty: 2 000 penalty units. (2) A NERL retailer who contravenes subsection (1) commits a separate offence for each day (after the first day of the contravention) during any part of which the contravention continues. Maximum penalty (for each day): 200 penalty units. (3) This section does not apply to a NERL retailer if the retailer has a reasonable excuse for the contravention. Note The defendant has an evidential burden in relation to the matters mentioned in s (3) (see Criminal Code, s 58).

75K Offence—contravention of s 75F (1) A NERL retailer commits an offence if the retailer contravenes section 75F (Greenpower obligations—information on bills). (2) An offence against this section is a strict liability offence.

Standard rights Division 6.1

77 Exercise of rights (1) A right conferred on a person under this division is— (a) exercisable only in accordance with this division; and (b) subject to— (i) the requirements and limitations applying to the relevant utility under this Act in relation to the provision of utility services; and (ii) the operation of any industry code or technical code that applies to the service. (2) A right conferred on a person under this division is subject to any negotiated customer contract between the person and the relevant utility in relation to the service concerned.

78 Form of application An application mentioned in this division may be made to the relevant (a) orally or in writing; or (b) if acceptable to the utility—by telephone, fax or other electronic means.

79 Electricity connection service (1) This section applies if a person has applied to an electricity distributor for a connection service for electricity for the person’s premises. (2) The person may elect to have an accredited person other than the distributor do work in relation to the connection service.

(3) However, this section does not apply until a date determined by the Minister. (4) A determination is a notifiable instrument. accredited person, in relation to work, means a person accredited under a technical code to do the work.

83 Water connection service (1) A water distributor must, on application by a person for any of the following utility services, provide the service in accordance with the distributor’s standard customer contract: (a) connect the premises to which the application relates to the distributor’s network; (b) vary the capacity of the connection between the premises to which the application relates and the distributor’s network; (c) if the applicant elects accordingly—allow the connection, or the variation of the capacity of the connection, and the associated work, to be done by another person accredited under the relevant (2) For subsection (1) (c), work associated with the connection or variation does not include any augmentation, relocation or other alteration of the distributor’s network. (3) To remove any doubt, action taken by an accredited person under subsection (1) (c) does not constitute the provision of a utility service. water distributor means–– (a) in relation to the collection or treatment of water, or both, for distribution through a water network—a utility licensed for the service; and

Standard rights Division 6.1 (b) in relation to the distribution of water through a water network— a utility licensed for the service; and (c) in relation to the provision of a water connection service to premises—a utility licensed to provide the service for the

84 Water supply service (1) A water supplier must, on application by a person, and in accordance with the supplier’s standard customer contract, supply water to premises owned or occupied by the person. (2) This section does not apply to the supply of water to premises for a non-franchise customer.

85 Sewerage connection service (1) A sewerage utility must, on application by a person for any of the following utility services, provide the service in accordance with the utility’s standard customer contract: (a) connect the premises to which the application relates to the utility’s network; (b) vary the capacity of the connection between the premises to which the application relates and the utility’s network; (c) if the applicant elects accordingly—allow the connection, or the variation of the capacity of the connection, and the associated work, to be done by another person accredited under the relevant (2) For subsection (1) (c), work associated with the connection or variation does not include any augmentation, relocation or other alteration of the utility’s network. (3) To remove any doubt, action taken by an accredited person under subsection (1) (c) does not constitute the provision of a utility service.

86 Sewerage service A sewerage utility must, on application by a person, and in accordance with the utility’s standard customer contract, provide a sewerage service for the premises to which the application relates.

86A Meaning of utility service—div 6.2 utility service does not include a utility service in relation to electricity or gas.

87 Terms (1) For this Act, the terms of a standard customer contract for the provision of a utility service by a particular utility are the terms of the contract, as approved or determined from time to time under this division, for the provision of the service by the utility. (2) A standard customer contract— (a) may apply to 2 or more stated utility services; or (b) may set out different terms for different classes of utility services.

88 Draft contracts (1) ICRC must consider a draft standard customer contract submitted by a utility to ICRC for approval. (2) ICRC may give a written direction to a utility to submit to ICRC for consideration a draft standard customer contract for the provision of a utility service.

Standard customer contracts Division 6.2 (3) A utility must comply with a direction within the period stated in the direction that ICRC is satisfied is reasonable in the circumstances.

89 Approval of terms (1) ICRC may— (a) approve; or (b) refuse to approve; the terms of a standard customer contract, a draft of which has been submitted to ICRC in accordance with section 88. (2) ICRC may approve the terms of a standard customer contract only if satisfied that, when in force as a standard customer contract— (a) the terms would be consistent with— (i) the conditions of the utility’s licence; and (ii) the requirements imposed by or under this Act or a related law, including in particular, the requirements of each industry code and technical code that is applicable; and (b) the charges payable under the contract would be consistent with the relevant price direction by ICRC; and (c) the terms would be fair and reasonable. (3) ICRC must give written notice of a refusal under this section to the (4) A notice of refusal must set out the reasons for the refusal and may— (a) state any matter that ICRC is satisfied requires further consideration or development; and (b) require the utility to submit a further draft standard customer contract to ICRC for consideration.

(5) If subsection (4) (b) applies, the notice must state the period, that ICRC is satisfied is reasonable in the circumstances, within which the further draft standard customer contract is to be submitted.

90 Determination of terms (1) ICRC may determine the terms of a standard customer contract if— (a) a utility fails to submit a draft standard customer contract in accordance with a direction under section 88; or (b) a utility fails to submit a further draft standard customer contract in accordance with a requirement under section 89; or (c) ICRC is satisfied that a further draft standard customer contract submitted in accordance with a requirement under section 89 (4) (b) is not appropriate. (2) The determined terms must comply with the requirements of section 89 (2).

91 Notification and application of terms etc Each of the following is a notifiable instrument: (a) the terms of a standard customer contract approved under section 89 (Approval of terms) or determined under section 90 (Determination of terms); (b) a variation of a standard customer contract approved or determined under section 93 (Variation of terms).

92 Creation of standard customer contracts (1) The terms on which a utility may provide a utility service to a person are— (a) to the extent that the service is provided under a negotiated customer contract—the terms of the contract; or

Standard customer contracts Division 6.2 (b) in any other case—the terms of the standard customer contract for the provision of the service by the utility that apply— (i) when the person applies to the utility for the service on those terms; or (ii) when the service is provided by the utility to the person in the absence of an application by the person. (2) Where subsection (1) (b) applies, the terms of the standard customer contract constitute an enforceable contract between the utility and the person for the provision of the service. (3) A standard customer contract— (a) has no effect in relation to anything occurring before it comes into operation; and (b) is subject to any variation under section 93; and (c) is unenforceable by the relevant utility to the extent (if any) to which it does not comply with the requirements set out in section 89 (2) (a) and (b).

93 Variation of terms (1) ICRC may approve, or determine, a variation of the terms of a standard customer contract and, for that purpose, the other provisions of this division apply to the variation in the same way as they apply to terms for a new standard customer contract. (2) However, ICRC may determine a variation of the terms of a standard customer contract if satisfied that the variation— (a) would not materially alter the terms; or (b) is necessary or convenient because of an amendment of an Act or a subordinate law.

(3) If the terms of a standard customer contract for a utility service provided by a particular utility are varied under this part, each standard customer contract for the provision of the service by the utility is varied accordingly.

94 Water supply and sewerage services—owner’s liability for payment (1) The owner of land where water is supplied under a standard customer contract is liable for an amount payable by the customer under the contract. (2) The owner of land where sewerage services are provided under a standard customer contract is liable for an amount payable by the customer under the contract. (3) Subsections (1) and (2) do not apply to an amount paid by the customer. (4) Joint owners of land are jointly and severally liable under subsections (1) and (2). (5) The owner’s liability under subsection (1) or (2) includes any undischarged liability of a former owner of the land for an amount payable under that subsection. (6) In this section: owner means— (a) for land held in fee simple—the person in whom the fee simple is vested for the time being; or (b) for land held under a lease—the lessee for the time being; or (c) for land occupied under a tenancy granted by the Territory—the tenant for the time being; or (d) for other land occupied by a person with the consent of the Territory—that person; or

Negotiated customer contracts etc Division 6.3 (e) for land held under a land sublease—the sublessee.

Division 6.3 Negotiated customer contracts etc

94A Application—div 6.3 (1) This division does not apply to a utility service in relation to electricity or gas. (2) However, section 95 (2) and (3) applies to a feed-in contract (whether entered into before or after the commencement day) on and after the commencement day as if— (a) a reference to a utility were a reference to a NERL retailer; and (b) subsection (2) (a) were omitted. commencement day means the commencement of the National Energy Retail Law (ACT) Act 2012, section 6 (Application of National Energy Retail Law). feed-in contract means a contract relating to action required under the Electricity Feed-in (Renewable Energy Premium) Act 2008, section 6 (2) or (3).

95 Negotiated customer contracts (1) This section applies to a contract, between a utility and a customer, for a utility service on terms other than those of the standard customer contract for the provision of the service by the utility. (2) The contract is unenforceable by the utility to the extent (if any) to which it is inconsistent with— (a) the conditions of the utility’s licence; or (b) the requirements imposed by or under this Act or a related law, including in particular, the requirements of each industry code or technical code that is applicable.

(3) Without limiting the operation of subsection (2), the regulations may provide for the core requirements to be ascertained by reference to— (a) the standard customer contract that would otherwise apply to the provision of the service by the utility; or (b) an industry code or technical code.

96 Unauthorised arrangements for utility services An arrangement for the provision of a utility service, other than a standard customer contract or a negotiated customer contract, is unenforceable by the person responsible for the provision of the service unless the person is— (a) licensed to provide the service; or (b) exempt from the requirement for such a licence.

97 Approved meters approved meter means a meter that complies with the relevant

100 Passing on the cost of water (1) A person to whom water is supplied under a customer contract must not impose a charge for supplying the water to premises of another person unless each of the following conditions is satisfied: (a) for metered premises— (i) the quantity supplied to the premises must be measured separately by an approved meter; and

Passing on supply costs Division 6.4 (ii) the rate at which the charge is made must not exceed the maximum rate a utility may charge under a standard customer contract if it were to supply that quantity of water directly to those premises of the other person; (b) for unmetered premises—the charge must not exceed the maximum charge determined by ICRC for the supply of water to unmetered premises at or near the premises of the other person; (c) for all premises—subject to subsection (3), the person makes no other charge in relation to the supply of the water. (2) Subsection (1) does not apply to— (a) a utility licensed for the distribution or supply of water to the premises of the other person; or (b) a person who is exempt from the requirement for such a licence. (3) A person to whom water is supplied under a customer contract must not impose a charge for use of that water (whether the charge is separate or incorporated in another charge, for example for services or facilities) unless each of the following conditions is satisfied: (a) the rate at which the charge is made must not exceed the maximum rate a utility may charge under a standard customer contract for the supply of the water used; (b) the person makes no other charge in relation to the use of the water;

(c) if required by the regulations—the usage is metered in accordance with the regulations.

101 Capital contribution charges—network development (1) A utility may impose a charge (a capital contribution charge) payable by customers for the development or augmentation of its network for the following purposes: (a) making utility services available to parcels of land not already connected to a network; (b) varying the capacity of connections to its network. (2) A capital contribution charge must be in accordance with the relevant industry code. (3) This section does not apply to— (a) a utility service in relation to electricity; or (b) an electricity network; or (c) a utility service in relation to gas; or (d) a gas network.

General Division 7.1

Division 7.1 General

103 Definitions for pt 7 installation, of a network facility, includes— (a) the construction or extension of the facility on, over or under any land or water; and (b) the attachment of the facility to any building or other structure; and (c) any activity that is ancillary or incidental to an activity mentioned in paragraph (a) or (b). network operations means work carried out by a utility, or an authorised person for a utility, under this part in the exercise of its functions under this Act.

104 Acquisition of land (1) A utility may compulsorily acquire land (including an interest in land) for the purpose of exercising its functions under this Act. (2) The acquisition must be in accordance with the Lands Acquisition Act 1994.

105 Installation of network facilities (1) For purposes connected with the provision of a utility service, a utility may— (a) enter and occupy land; and (b) undertake any work on the land that is necessary or desirable for installing a network facility. (2) Under subsection (1) (b), the utility may, for example, undertake any of the following work: (a) make surveys, take samples and examine the soil; (b) construct, install or place any plant, machinery, equipment or goods; (c) fell or lop trees, or clear and remove vegetation; (d) interrupt the provision of utility services by the utility; (e) make cuttings and excavations; (f) level the land or make roads; (g) erect offices, workshops, sheds, other buildings, fences and other structures; (h) demolish, destroy or remove any network facility installed or used by the utility in relation to the provision of a utility service; (i) put a gate or passageway in a fence or wall (except a wall of a building) that prevents or hinders the work of the utility under this section, or remove such a gate or passageway; (j) temporarily divert or stop traffic on a public road or bridge;

General powers Division 7.2 (k) restore the land, or fences, walls or other structures on the land, affected by the work of the utility and, for that purpose, remove and dispose of soil, vegetation and other material. (3) This section does not entitle a utility to act under subsection (1) on land that it does not own unless— (a) it owns an appropriate interest in the land; or (b) the owner of the land agrees to the undertaking. (4) If subsection (2) (i) applies, the utility must ensure, so far as practicable that the work is carried out in a way that minimises inconvenience and disruption to the passage of people, vehicles and vessels. (5) Any work undertaken under this section that affects a protected tree

106 Maintenance of network facilities (1) A utility may, at any time, maintain a network facility and, for that purpose, do anything necessary or desirable, including, for example— (a) entering and occupying land; and (b) undertaking any work of a kind mentioned in section 105. (2) For subsection (1), the maintenance of a network facility includes, for example, the following work: (a) the alteration, removal, repair or replacement of any part of the facility;

(b) the provisioning of the facility with material or information (whether in electronic form or otherwise); (c) inspecting or otherwise ensuring the proper functioning of the facility from time to time; (d) action to which a network protection notice relates. Note For par (d)—see the Utilities (Technical Regulation) Act 2014, s 32 (Network protection notices). (3) Any work undertaken under this section that affects a protected tree (b) for a registered or remnant tree, if the work is undertaken for protecting life or property in urgent circumstances—anything done in relation to the tree under this section; or (c) for a protected tree in any other case—an activity approved under that Act, s 28 or s 32 (see that Act, s 18 (1) (c)).

107 National land Functions of the kind exercisable by a utility under this part are exercisable in relation to national land only by agreement with the Commonwealth.

108 Damage etc to be minimised In carrying out network operations, a utility must take all reasonable steps to ensure that it causes as little inconvenience, detriment and damage as is practicable.

109 Notice to land-holder (1) Before a utility begins network operations in relation to public land or private land, it must give the land-holder written notice of the proposed operations. (2) The notice must be given to the land-holder— (a) at least 7 days before the operations begin; or (b) if the relevant industry code requires a minimum period of notice—in accordance with the code. (3) The notice must, so far as practicable, state the following matters: (a) the purpose of the operations; (b) the nature of the activities involved; (c) the parts of the land likely to be affected; (d) the period or periods during which the activities are expected to be carried out; (e) contain a statement indicating— (i) the utility’s obligation under this part to restore the land; and (ii) the ACAT’s power to direct payment by the utility for loss or damage resulting from the operations.

period of notice under subsection (2). (5) Subsection (1) does not apply if the operations are to be carried out (a) the integrity of a network or network facility; or

109A Notice to owner of structure—network operations (1) This section applies to network operations on infrastructure owned by a utility and installed in a structure owned by the Territory. (2) At least 7 days before beginning network operations, the utility must give the Territory written notice of the proposed operations. (iii) the structure to be accessed; (iv) the period or periods during which the operations are (b) state the utility’s obligations under this part. Note The utility’s obligations include taking all reasonable steps to ensure that it causes as little inconvenience, detriment and damage as is practicable (see s 108), removing its property and waste (see s 112) and restoring the land (see s 113).

(4) The Territory may, in writing, agree to a notice period of less than 7 days. (5) However, there is no notice period for network operations carried out— (a) in urgent circumstances in which it is necessary to protect— (i) the integrity of a territory network or territory network facility; or (ii) the health or safety of people; or (iii) public or private property; or (iv) the environment; or (b) for streetlight network infrastructure—in accordance with an access agreement between the utility and the Territory, made under a streetlight network code.

110 Notice about lopping trees etc on private land—network (1) This section applies to network operations to the extent that they involve— (a) the felling or lopping of trees on private land; or (b) the trimming of roots of trees or other plants on private land; or (c) the clearing or removal of vegetation on private land. (2) Before a utility begins such operations, it must give the land-holder notice of the proposed operations.

(a) must be given at least 7 days before the operations begin; and (b) must indicate the trees or vegetation affected and the activity proposed; and (c) may require the land-holder to carry out the activity within a stated period; and (d) if paragraph (c) applies—must contain a statement— (i) about the effect of subsection (6); and (ii) that the land-holder may need approval under the Urban Forest Act 2023, part 3 (Protection of trees) to carry out the activity; and (e) if the operations relate to other network operations for which notice is required under this division—may be given in or with the notice of the other operations. (see that Act, s 16 and s 17). However, the offences do not apply to an activity approved under the Urban Forest Act 2023, s 28 or s 32 (see that Act, s 18 (1) (c)). period of notice under subsection (3) (a). (5) If subsection (3) (c) applies, the stated period within which the land-holder is required to carry out the activity must run for at least 7 days commencing on the day the notice is given to the land-holder. (6) If the land-holder does not carry out the activity in accordance with a requirement in the notice mentioned in subsection (3) (c)— (a) the utility may carry out the activity; and (b) the reasonable expenses thus incurred by the utility are a debt due to the utility by the land-holder.

(7) Subsection (6) (b) does not apply to a tree or vegetation growing on the land before a network facility was installed on the land. (8) In urgent circumstances in which it is necessary to protect— (a) the integrity of a network or a network facility; or (d) the environment; subsections (2) and (3) do not apply and the utility may carry out the operations at its own expense.

110A Network operations affecting heritage significance (1) If a notice under section 109 or section 110 is about network operations that may affect a place or object registered, or nominated for provisional registration, under the Heritage Act 2004, the utility must also give a copy of the notice to the heritage council at least 7 days before the day operations begin. (2) Subsection (1) does not apply if the operations are to be carried out (a) the integrity of a network or network facility; or

111 Notice to other utilities (1) This section applies to network operations by a utility that consist of, or include, an activity that— (a) affects; or (b) is reasonably likely to affect; a network facility under the care and management of a public utility. (2) Before the utility begins such operations, it must give the public utility written notice of the proposed operations. (a) be given to the public utility at least 7 days before the operations begin; and (b) so far as practicable, state the following matters: (iii) the network facility affected; expected to be carried out. (4) The utility must— (a) make reasonable efforts to enter into an agreement with the public utility about the way the activities would be carried out; and (b) comply with any such agreement. (5) The public utility may waive its right to notice under subsection (2).

(6) Subsection (2) does not apply if the operations are to be carried out (a) the integrity of a network or a network facility; or network facility includes— (a) a telecommunications facility; and (b) a stormwater facility; and (c) a streetlight facility. public utility includes— (a) a utility licensed under this Act; and (b) a carrier or network operator under the Telecommunications Act 1997 (Cwlth); and (c) the entity responsible for the operation of the stormwater network; and (d) the entity responsible for the operation of the streetlight stormwater facility means any part of the infrastructure of a stormwater network. streetlight facility means any part of the infrastructure of a streetlight telecommunications facility means a facility under the Telecommunications Act 1997 (Cwlth).

112 Removal of utility’s property and waste (1) A utility that undertakes an activity as network operations on land for which it is not the land-holder must, as soon as practicable, remove from the land— (a) all— (i) items of plant, machinery, equipment and other goods; and (ii) offices, workshops, sheds and other buildings; and (iii) roads and tracks; that the utility constructed, installed or placed on the land and that do not form part of, or are not to be used in the operation of, the network facility to which the activity related; and (b) all spoil, waste and rubbish and cleared vegetation resulting from the activity. (2) The obligation in subsection (1) is subject to any agreement to the contrary between the utility and the land-holder.

113 Land to be restored (1) A utility that carries out network operations on land for which it is not the land-holder must take all reasonable steps to ensure that the land is restored as soon as practicable to a condition that is similar to its condition before the operations began. (2) Subsection (1) does not require the restoration of land to a condition that would involve— (a) an interference with— (i) a network or network facility; or (ii) a territory network or territory network facility; or (b) a contravention of a territory law.

Authorised people Division 7.4 (3) The obligation in subsection (1) is subject to any agreement to the contrary between the utility and the land-holder.

114 Appointment (1) A utility may appoint a person as an authorised person for the utility for this Act. Note 2 In particular, a person may be appointed for a particular provision of a law (see Legislation Act, s 7 (3)) and an appointment may be made by naming a person or nominating the occupant of a position (see s 207). (2) An authorised person must exercise his or her functions under this Act in accordance with the conditions of appointment and any direction given to the person by the utility.

115 Identity cards (1) A utility must give each of its authorised people an identity card that specifies the person’s name and appointment as an authorised person for the utility, and on which appears a recent photograph of the (2) A person must, within 7 days after ceasing to be an authorised person, return the identity card to the utility. Maximum penalty (subsection (2)): 1 penalty unit.

116 Entry to premises—network operations (1) Where a utility is entitled under this part to undertake network operations affecting particular premises, an authorised person for the utility may— (a) enter the premises, with such people, vehicles and things as are reasonable and necessary for the operations; and

(b) carry out the activities necessary for those operations. (2) The authorised person may not remain on the premises if, on request by the land-holder or person apparently in charge of the premises, the authorised person does not produce his or her identity card. (3) The authorised person may enter and remain on the premises under this section with such assistance as is necessary and reasonable.

117 Entry to premises—inspection of meters etc (1) An authorised person for a utility may enter and remain on any premises to which the utility provides, or is to provide, a utility service— (a) to read, or check the accuracy of, a meter for recording the provision of the service to the premises; or (b) to check work associated with the connection of premises to the utility’s network that is performed by a person accredited under the relevant technical code; or (c) to check the operation of a connection between the premises and the utility’s network, or install, repair, remove or replace such a connection; or (d) for a purpose related to the connection of the premises to the utility’s network, or its withdrawal. (2) The authorised person may not remain on the premises if, on request by the land-holder or person apparently in charge of the premises, the authorised person does not produce his or her identity card. (3) The authorised person may enter and remain on the premises under this section— (a) at any reasonable time; and (b) with such assistance as is necessary and reasonable.

Miscellaneous Division 7.5

119 Order to enforce exercise of functions (1) If— (a) an authorised person is entitled to exercise a function under this part in relation to premises; and (b) another person obstructs, or proposes to obstruct, the authorised person in the exercise of the function; the Magistrates Court may, on the application of the authorised person, make an order authorising a police officer or other person named in the order to use such assistance and force as are reasonably necessary to enable the function to be exercised. (2) A copy of an application under subsection (1) must be given to the obstructor, and the obstructor is entitled to appear and be heard on the hearing of the application.

120 Ownership of network facilities (1) The owner or occupier of land to which a network facility is affixed has no proprietary interest in the facility only because it is affixed to the land. (2) A network facility of a utility is not to be taken in execution of a judgment against a person other than the utility under any process of a court.

121 Clarifying ownership of certain network facilities (1) The purpose of this section is to remove uncertainty about the ownership of network facilities that— (a) are used, or for use, by a utility or a subsidiary of the utility in providing a utility service; and

(b) are treated by the Territory and the utility or subsidiary as being owned by the utility or subsidiary; and (c) are affixed to land owned or occupied by a person other than the utility or subsidiary. (2) The Minister may declare that this section applies to network facilities. Note Power given under an Act to make a statutory instrument includes power to make different provision for different categories, eg declarations in relation to different classes of network facilities or that apply by reference to stated exceptions (see Legislation Act, s 48). (3) A declaration must include sufficient particulars to identify the facilities to which the declaration applies. (4) A declaration is a notifiable instrument.

122 Effect of declaration under s 121 (1) On the day a declaration under section 121 takes effect in relation to a network facility, the facility, by force of this section— (a) is severed from the land and remains severed; and (b) vests in the person in whom the declaration states that the facility vests, without any conveyance, transfer or assignment. (2) A facility severed under subsection (1) ceases for all purposes to be a fixture. (3) A person in whom a facility is vested has, by force of this section, the following rights in relation to the facility: (a) to have the facility (including any lines, pipes, equipment and any other thing ancillary to any other part of the facility) remain on, under or over the land for the provision of utility services; (b) for that purpose, to use, or continue to use, the facility;

Miscellaneous Division 7.5 (c) to enter and occupy land on, above or under which the facility is located, and to undertake work on that land, for the purpose of maintaining the facility. (4) To ensure the proper provision of utility services, the Minister may determine conditions for the exercise of a right given by subsection (3) (c). (5) The right is exercisable only in accordance with the determined conditions. (6) A determination under subsection (4) is a notifiable instrument. (7) A declaration under section 121 has no effect to the extent that it would vest a facility in a person if the facility had not been used, or for use, by the person in providing a utility service before the declaration.

Part 9 Controller’s power to take over

134 Meaning of utility—pt 9 (1) In this part: utility includes a former utility. former utility does not include a NERL retailer.

135 Appointment of controller (1) This section applies if the Minister is satisfied— (a) that— (i) a contravention by a utility of a licence condition threatens the provision of the utility’s service to customers; and (ii) other remedies are inadequate to ensure compliance with the licence condition; or (b) that, following the expiry or cessation of a licence, the provision of utility services to customers is threatened. (2) In either case, the Minister may, after consulting ICRC, appoint a controller for all or part of the operations of the responsible utility. Note 2 In particular, an appointment may be made by naming a person or nominating the occupant of a position (see Legislation Act, s 207). Note 3 Certain Ministerial appointments require consultation with an Assembly committee and are disallowable (see Legislation Act, div 19.3.3).

General Division 9.1 (3) The controller has the functions stated in the instrument of appointment. (4) A controller holds the position on the conditions stated in the instrument of appointment. (5) The Minister may revoke an appointment by written notice given to Note A person’s appointment also ends if the person resigns (see Legislation Act, s 210).

136 Controller’s functions (1) A controller must, so far as practicable, ensure the provision or continued provision of the utility service to which the appointment relates. (2) For that purpose, the controller may— (a) take control of the relevant operations of the utility; and (b) take control of the activities of an associate of the utility so far as they relate to the provision of the relevant utility services; and (c) have access to a network facility or other premises of the responsible utility or an associate, so far as is reasonable and necessary; and (d) give a written direction to a person to take stated action. Note 1 A provision of a law that gives an entity (including a person) a function also gives the entity powers necessary and convenient to exercise the function (see Legislation Act, s 196 and dict, pt 1, def entity). Note 2 For how documents may be given, see the Legislation Act, pt 19.5.

137 Utility to cooperate (1) The responsible utility must facilitate the taking of action by the controller and, in particular must comply with any direction by the controller. (2) A utility is not to be taken to contravene a requirement under this Act or any other Act by complying with a direction of the controller.

138 Reports to Minister The controller must furnish to the Minister such information relating to the controller’s functions as the Minister requires.

139 Ministerial directions (1) The Minister may give written directions to the controller in relation to the exercise of the controller’s functions, either generally or in relation to a particular matter. (2) The controller must give effect to any such direction.

140 Contravention of controller’s direction A person must not, without reasonable excuse, contravene a direction given by the controller in the performance of functions under this part. Maximum penalty: 50 penalty units, imprisonment for 6 months or

142 Immunity from personal liability (1) No personal liability attaches to a person who is, or has been, a controller for any act or omission in good faith in the exercise, or purported exercise, of a function under this Act. (2) Subsection (1) does not affect any liability that the Territory would have, but for the operation of subsection (1), in relation to the act or omission.

Compensation Division 9.2

143 Right to compensation (1) Subject to this section, a person who suffers loss because of an act or omission of a controller is entitled to be paid reasonable compensation by the Territory in relation to the loss. (2) Compensation is not payable to a person in relation to a loss to the extent— (a) of any amount recovered or recoverable by the person under a policy of insurance; or (b) that the conduct of the person contributed to the loss. (3) Compensation is not payable to a person in relation to a loss if the loss would have arisen despite the act or omission of the controller.

144 Claims A claim for compensation must— (b) set out particulars of the claimant’s loss, the amount of compensation claimed and the grounds for the claim of that amount; and (c) be lodged with the director-general.

145 Acceptance or rejection of claim (1) Where the Minister is satisfied that a claimant is entitled to compensation under section 143, the Minister must accept the claim by giving written notice of acceptance to the claimant setting out— (a) an offer to the claimant of the amount of compensation to which the Minister considers the claimant is entitled; and (b) an explanation of how that amount was assessed.

(2) Where the Minister is satisfied that a claimant is not entitled to compensation under section 143, the Minister must reject the claim by giving written notice of rejection to the claimant setting out the reasons for the rejection.

146 Acceptance or rejection of compensation offer A claimant to whom an offer has been made under section 145 may— (a) accept the offer; or (b) reject the offer; by giving written notice to that effect to the director-general.

147 Payment Where a claimant accepts an offer of an amount of compensation, the Territory must pay the amount to the claimant.

148 Role of court If the Territory and the person to whom compensation is payable under section 143 do not agree on the amount of compensation, the person may, in a court of competent jurisdiction, recover from the Territory such reasonable compensation as the court determines.

Compensation Division 9.2

149 Recovery of compensation If— (a) a controller is appointed because of a contravention by a utility of a licence condition; and (b) a person suffers loss because of an act or omission of the controller; and (c) the controller’s act or omission was in good faith in the exercise or purported exercise of a function under this part; the amount of compensation payable under this part for the loss is a debt due to the Territory by the utility.

149A Definitions—pt 9A essential service means electricity, gas or water. essential service restriction means a restriction or other regulation prescribed by regulation in relation to the use of an essential service.

149B Restriction of utility service A regulation may make provision in relation to a shortage, or possible shortage, in the amount of an essential service needed for the community, including provision regulating the use of an essential service by consumers.

149C Powers in relation to premises (1) This section applies if an authorised person believes, on reasonable grounds, that an essential service is being used, or has just been used, at premises in contravention of an essential service restriction. (2) For this Act, the authorised person may, at any reasonable time— (a) enter and inspect the premises and anything at the premises; and (b) take action prescribed by regulation in relation to a contravention of the essential service restriction. (3) However, subsection (2) (a) does not authorise entry into a part of premises that is being used only for residential purposes. (4) To remove any doubt, an authorised person may enter premises under subsection (2) (a) without payment of an entry fee or other charge.

Shortage of essential services Part 9A

149D Production of identity card An authorised person must not remain on premises entered under this part if, when asked by the occupier, the authorised person does not produce the authorised person’s identity card for inspection by the occupier.

Note This part applies to NERL retailers and NERL exempt sellers (see s 75B and s 75C).

150 Definitions for pt 10 connected—a thing is connected with a particular offence if— (a) the offence has been committed in relation to it; or (b) it will provide evidence of the commission of the offence; or (c) it was used, is being used, or is intended to be used, to commit the offence. occupier, of premises, includes— (a) a person believed on reasonable grounds to be an occupier of the premises; and (b) a person apparently in charge of the premises. offence includes an offence that there are reasonable grounds for believing has been, is being, or will be committed.

152 Appointment (1) ICRC may appoint a person as an ICRC inspector for this Act. Note 2 In particular, a person may be appointed for a particular provision of a law (see Legislation Act, s 7 (3)) and an appointment may be made by naming a person or nominating the occupant of a position (see s 207).

(2) An ICRC inspector must exercise his or her functions under this Act in accordance with the conditions of appointment and any direction given to the inspector by ICRC. (3) A person must not be appointed under subsection (1) unless— (a) the person is an Australian citizen or a permanent resident of Australia; and (b) the director-general has certified in writing that, after appropriate inquiry, the director-general is satisfied that the person is a suitable person to be appointed, having regard in particular to— (i) whether the person has any criminal convictions; and (ii) the person’s employment record; and (c) the director-general has certified in writing that the director-general is satisfied that the person— (i) has satisfactorily completed adequate training; and (ii) is competent; to exercise the functions of an inspector proposed to be given to

153 Identity cards (1) ICRC must give each of its inspectors an identity card that specifies the inspector’s name and appointment as an ICRC inspector, and on which appears a recent photograph of the person. (2) A person must, within 7 days after ceasing to be an ICRC inspector, return the identity card to ICRC. Maximum penalty (contravention of subsection (2)): 1 penalty unit.

154 Power to enter premises (1) An ICRC inspector may, for the purpose of ICRC’s functions under this Act— (a) enter any premises at any time with the consent of the occupier; or (b) enter premises occupied by a utility at any time the premises are being used; or (c) at any reasonable time, enter premises to which a utility service is provided (other than a part used for residential purposes); or (d) enter premises in accordance with a warrant under section 157. (2) An ICRC inspector may, without the occupier’s consent or a warrant, enter the land around premises to ask the occupier for consent to enter the premises.

155 Production of identity card An ICRC inspector may not remain on premises entered under this division if, on request by the occupier, the inspector does not produce his or her identity card.

156 Consent to entry (1) When seeking the consent of an occupier for entering premises under this division, an ICRC inspector must— (a) produce his or her identity card; and (b) tell the occupier— (i) the purpose of the entry; and (ii) that anything found and seized may be used in evidence in court; and (iii) that consent may be refused.

(2) If the occupier consents, the inspector must ask the occupier to sign a written acknowledgment— (a) that the occupier was told— (i) the purpose of the entry; and (ii) that anything found and seized may be used in evidence in court; and (iii) that consent could be refused; and (b) that the occupier consented to the entry; and (c) the time, and day, when consent was given. (3) If the occupier signs an acknowledgment of consent, the inspector must immediately give a copy to the occupier. (4) Unless the contrary is proven, a court must presume that an occupier of premises did not consent to an entry to the premises by an ICRC inspector under this division if— (a) the question whether the occupier consented to the entry arises in proceedings in the court; and (b) an acknowledgment under this section is not produced in evidence for the entry or exercise of power; and (c) it is not proved that the occupier consented to the entry.

157 Warrants (1) An ICRC inspector may apply to a magistrate for a warrant to enter (2) The application must be sworn and state the grounds on which the warrant is sought. (3) The magistrate may refuse to consider the application until the inspector gives the magistrate all the information the magistrate requires about the application in the way the magistrate requires.

(4) The magistrate may issue a warrant only if satisfied there are reasonable grounds for suspecting— (a) there is a particular thing or activity (the evidence) that may provide evidence of an offence against this Act or a related law; and (b) the evidence is, or may be within the next 14 days, at the (5) The warrant must state— (a) that an ICRC inspector may, with necessary help and force, enter the premises and exercise the inspector’s powers under this division; and (b) the offence for which the warrant is sought; and (c) the evidence that may be seized under the warrant; and (d) the hours when the premises may be entered; and (e) the date, within 14 days after the warrant’s issue, the warrant ends.

158 Warrants—application made other than in person (1) An ICRC inspector may apply for a warrant by phone, fax, radio or other form of communication if the inspector considers it necessary because of— (a) urgent circumstances; or (b) other special circumstances. (2) Before applying for the warrant, the inspector must prepare an application stating the grounds on which the warrant is sought.

(3) The inspector may apply for the warrant before the application is sworn. (4) After issuing the warrant, the magistrate must immediately provide a written copy to the inspector if it is reasonably practicable to do so. (5) If it is not reasonably practicable to provide a written copy to the inspector— (a) the magistrate must— (i) tell the inspector what the terms of the warrant are; and (ii) tell the inspector the date and time the warrant was issued; and (b) the inspector must complete a form of warrant (warrant form) and write on it— (i) the magistrate’s name; and (ii) the date and time the magistrate issued the warrant; and (iii) the warrant’s terms. (6) The written copy of the warrant, or the warrant form properly completed by the inspector, authorises the entry and the exercise of the other powers stated in the warrant issued by the magistrate. (7) The inspector must, at the first reasonable opportunity, send the magistrate— (a) the sworn application; and (b) if the inspector completed a warrant form—the completed warrant form. (8) On receiving the documents, the magistrate must attach them to the warrant.

(9) Unless the contrary is proven, a court must presume that a power exercised by an ICRC inspector was not authorised by a warrant under this section if— (a) the question arises in a proceeding before the court whether the exercise of power was authorised by a warrant; and (b) the warrant is not produced in evidence.

159 Powers on entry to premises (1) An ICRC inspector who enters premises under this division may, for the purpose of ICRC’s functions under this Act— (a) inspect, measure, photograph or film the premises or anything on the premises; or (b) copy a document on the premises; or (c) test or take samples of or from anything on the premises; or (d) take into the premises any people, equipment or material the inspector reasonably needs for exercising a power under this division; or (e) require the occupier, or a person on the premises to give the inspector reasonable help to exercise a power under this division. (2) A person must not, without reasonable excuse, contravene a requirement under subsection (1) (e). Maximum penalty (subsection (2)): 50 penalty units.

160 Power to seize evidence (1) An ICRC inspector who enters premises with a warrant under this division may seize the evidence for which the warrant was issued. (2) An ICRC inspector who enters premises under this division with the consent of the occupier may seize a thing on the premises if— (a) the inspector is satisfied the thing is connected with an offence against this Act or a related law; and (b) seizure of the thing is consistent with the purpose of the entry as told to the occupier in seeking the occupier’s consent. (3) An ICRC inspector may also seize another thing on the premises if the inspector is satisfied— (a) the thing is connected with an offence against this Act or a related law; and (b) the seizure is necessary to prevent the thing being— (i) concealed, lost or destroyed; or (ii) used to commit, continue or repeat the offence. (4) Having seized a thing, an ICRC inspector may— (a) remove the thing from the premises where it was seized (the place of seizure) to another place; or (b) leave the thing at the place of seizure but restrict access to it. (5) A person must not, without ICRC’s approval, interfere with a thing to which access has been restricted under subsection (4). Maximum penalty (subsection (5)): 50 penalty units, imprisonment for 6 months or both.

161 Receipt for things seized (1) As soon as practicable after a thing is seized by an ICRC inspector under this division, the inspector must give a receipt for it to the person from whom it was seized. (2) If, for any reason, it is not practicable to comply with subsection (1), the ICRC inspector must leave the receipt at the place of seizure in a reasonably secure way and in a conspicuous position.

162 Access to things seized A person who would, but for the seizure, be entitled to a thing seized under this division may— (a) inspect it; and (b) if it is a document—take extracts from it or make copies of it.

163 Return of things seized (1) A thing seized under this division must be returned to its owner, or reasonable compensation must be paid to the owner by ICRC for the loss of the thing, if— (a) a prosecution for an offence relating to the thing is not instituted within 90 days of the seizure; or (b) the court does not find the offence proved in a prosecution for an offence relating to the thing. (2) A thing seized under this division is forfeited to ICRC if a court— (a) finds an offence relating to the thing to be proved; and (b) orders the forfeiture. (3) If subsection (2) (a) applies, but a court does not order forfeiture of the thing seized, ICRC must return the thing to its owner or pay reasonable compensation to the owner in relation to the loss of the thing.

Miscellaneous Division 10.5

Division 10.5 Miscellaneous

166 Self-incrimination etc (1) A person is not excused from providing information, producing a document or answering a question when required to do so under this part on the ground that the information, document or answer might tend to incriminate the person. (2) However— (a) the provision of the information, document or answer; or (b) any information, document or thing obtained as a direct or indirect consequence of providing the information, document or answer; is not admissible in evidence against the person in criminal proceedings, other than proceedings for— (c) an offence to which this part applies; or (d) any other offence in relation to the falsity of the information, document or answer. Note 1 A reference to an offence against a territory law includes a reference to a related ancillary offence, eg attempt (see Legislation Act, s 189). Note 2 The Legislation Act, s 171 deals with the application of client legal privilege.

Part 11 Certain causes of action against customer Part 11 Certain causes of action against customer Note This part applies to NERL retailers (see s 75B).

167 Proceedings in Magistrates Court—amounts over $10 000 (1) This section applies to a proceeding in relation to— (a) the recovery of a customer debt that is more than $10 000; or (b) any other cause of action against a customer for more than $10 000 in relation to which an application to ACAT may be made under part 12 (Complaints to ACAT about utilities). (2) A utility may not begin a proceeding to which this section applies against the customer in the Magistrates Court unless the utility has given the customer written notice of its intention to do so. (a) must be given at least 7 days before the day the proceeding is begun; and (b) must include a statement about— (i) the customer’s rights to make an application in relation to a complaint to the ACAT under part 12; and (ii) the effect of the Magistrates Court Act 1930, section 266 (Complaints under Utilities Act, pt 12). customer debt—see section 169.

Certain causes of action against customer Part 11

168 Civil dispute applications to ACAT (1) This section applies in relation to— (a) the recovery of a customer debt; or (b) any other cause of action against a customer in relation to which an application to ACAT may be made under part 12 (Complaints to ACAT about utilities). (2) A utility may not make an application to the ACAT under the ACT Civil and Administrative Tribunal Act 2008, part 4 (Civil disputes) in relation to the debt or cause of action unless the utility has given the customer written notice of its intention to do so. (a) must be given at least 7 days before the day the application is made; and (b) must include a statement about the customer’s rights to make an application in relation to a complaint to the ACAT under part 12. customer debt—see section 169.

Part 12 Complaints to ACAT about utilities

169 Definitions—pt 12 complainant—see section 172. complaint—see section 172. customer debt means an amount payable by a customer to a utility in relation to the provision of a utility service to premises for the customer. registrar means the registrar of the ACAT. respondent, in relation to a complaint, means the utility the subject of the complaint. utility, in relation to an act or omission, includes a person who was licensed at the time of the act or omission. withdrawal, of a utility service, includes the reduction or termination of the service, whether by disconnection from a network or otherwise.

170 Application—pt 12 This part does not apply to a complaint by a utility. Note This part applies to NERL retailers and NERL exempt sellers (see s 75B and s 75C).

Applications to ACAT Division 12.2

171 Principles—pt 12 In exercising its functions under this part, the ACAT must consider the following principles: (a) that utility services should continue to be provided to complainants suffering financial hardship; (b) that the rights of complainants under the Act should be protected.

172 ACAT applications A person (the complainant) mentioned in table 172, column 2 may apply to the ACAT in relation to a matter (the complaint) mentioned in column 3 in relation to the complainant. Table 172 ACAT applications item complainant complaint 1 consumer affected by contravention of customer contract, or customer retail contract or customer connection contract made under the National Energy Retail Law (ACT), by a utility 2 consumer affected by contravention of an industry code dealing with utility service standards by a utility 3 consumer a utility fails to provide a utility service to consumer or withdraws a utility service from consumer, and failure or withdrawal causes substantial hardship, or is likely to cause substantial hardship, to consumer 4 person affected by contravention of s 51 (Protection of personal information) by a utility 5 person affected by contravention by a utility or a regulated utility of an obligation in relation to its network operations under this Act or the Utilities (Technical Regulation) Act 2014

item complainant complaint 6 person affected by act or omission act or omission of an authorised person for a utility or regulated utility in relation to its network operations under this Act or the Utilities (Technical Regulation) Act 2014 7 person on whom charge imposed capital contribution charge imposed under s 101

173 Help with applications about failure to provide, or withdrawal of, utility services (1) This section applies if— (a) the registrar considers that a person making an application, or considering making an application, needs help with the application; and (b) the application is in relation to the failure to provide a utility service to the person or the withdrawal of a utility service from (2) The registrar must ask the person whether the person wants the registrar to put the application in writing for the person. (3) If the person wants the registrar to put the application in writing, the registrar must do so. (4) This section is in addition to the ACT Civil and Administrative Tribunal Act 2008, section 112 (1) (b) (Functions of registrar—other).

174 Advising Minister etc about systemic problems (1) This section applies if it appears to the ACAT that applications under this part to the ACAT indicate a systemic problem in relation to— (a) the operation of this part; or

Preliminary inquiries Division 12.3 (b) other matters that come to the ACAT’s attention in the course of exercising its functions under this part. (2) The ACAT must tell the following about the problem: (a) each Minister responsible for administering the Act; (b) the ICRC. (3) This section is in addition to the ACT Civil and Administrative Tribunal Act 2008, section 105A (Advising Attorney-General about systemic problems).

Division 12.3 Preliminary inquiries

175 Preliminary inquiries—registrar If a person makes a complaint, the registrar may make inquiries of the person, respondent or anyone else to decide— (a) whether this part applies to the matter complained of; and (b) if so, whether the ACAT should consider the matter. Division 12.4 Dismissal of complaints

176 Dismissal of complaints about utilities (1) The ACAT may dismiss a complaint about a utility if satisfied that— (a) this part does not apply to the matter complained of; or (b) the complaint has been withdrawn or abandoned (for example, because the complainant fails to proceed with the complaint within a reasonable time); or (c) the complaint relates to a matter, or the last of a series of matters, that happened more than 1 year before the day the complaint was made; or

(d) if the registrar makes an inquiry under section 175 of the person making the complaint—the person has not responded to the inquiry; or (e) the complainant has not made reasonable efforts to resolve the matter complained of with the utility, particularly in accordance with the utility’s complaint handling procedures; or (f) the matter complained of has already been dealt with adequately by the ACAT or otherwise; or (g) a remedy more appropriate than action under this part is readily available to the complainant; or (h) it is otherwise appropriate to do so. Note The ACAT may dismiss an application if it is frivolous or vexatious, lacking in substance or otherwise an abuse of process (see ACT Civil and Administrative Tribunal Act 2008, s 32). (2) If the ACAT dismisses a complaint, it must give each party written notice of the dismissal, setting out its reasons for the dismissal.

177 Complainant’s records (1) This section applies if a complainant makes a complaint about a (2) The utility must give the ACAT the utility’s records, or access to the records, in relation to the complainant. (3) The complainant is taken to consent to the disclosure of the records to the ACAT. Note See s 51 (Protection of personal information).

Powers and decisions of ACAT Division 12.5

178 ACAT decisions (1) This section applies if the ACAT is satisfied, in relation to a complainant, that— (a) the respondent has— (i) contravened a customer contract; or (ii) contravened section 51 (Protection of personal information); or (iii) contravened an obligation under this Act in relation to its network operations; or (b) the respondent has caused, or would cause, substantial hardship by failing to provide, or withdrawing, a utility service; or (c) an authorised person for the respondent has acted improperly in relation to network operations; or (d) a capital contribution charge, of an amount of not more than $10 000, imposed by the respondent is excessive. (2) Without limiting the orders the ACAT may make, the ACAT may— (a) for a complaint that a capital contribution charge is excessive— give a direction under section 182 (Reviewable capital contribution charges); or (b) in any other case— (i) give the written directions to the respondent that it considers necessary requiring the respondent to remedy the matter mentioned in subsection (1); or (ii) give another direction under this division; or (iii) make a declaration under this division. (3) A respondent must comply with a direction given to it under this division.

179 Continuity of utility services—nonpayment of customer debt (1) This section applies to a complaint about the actual or potential withdrawal of a utility service because of a failure to pay a customer debt in relation to residential premises. (2) If the ACAT is satisfied that the withdrawal of the utility services causes, or would cause, substantial hardship for a consumer, the ACAT may give the respondent a written direction— (a) not to withdraw the service; or (b) if the service has been withdrawn—to restore the service as soon as practicable and, in any event, within 24 hours after the direction is given to the respondent. (3) A direction may contain ancillary directions, for example, that the service not be withdrawn— (a) during a stated period; or (b) unless the consumer fails to comply with a stated condition. Note See the national energy retail rules, pt 6 (De-energisation (or disconnection) of premises—small customers).

180 Discharge of customer debt (1) If the ACAT is satisfied that payment of a customer debt in relation to residential premises would cause substantial hardship for the customer, the ACAT may, in writing, declare that the debt is discharged in whole or to a stated extent. (2) The declaration may provide that the discharge is conditional on payment by the customer of a stated amount or amounts in accordance with the declaration. (3) A declaration has effect for all purposes according to its terms.

Powers and decisions of ACAT Division 12.5 (4) The amount of the debt discharged by a declaration may not be more than— (a) $10 000; or (b) if another amount is prescribed by regulation—the prescribed amount.

181 Payment for loss or damage (1) If the ACAT is satisfied that a complainant suffered loss or damage because of an act by the respondent, or an authorised person for the respondent, of a kind mentioned in section 178 (ACAT decisions), the ACAT may give the respondent a written direction to pay a stated amount to the complainant for the loss or damage. (2) The direction may not be given in relation to a punitive amount. (3) The amount payable under the direction is a debt due to the complainant in whose favour the direction is given. (4) In giving the direction, the ACAT must take account of the extent (if any) to which the complainant— (a) caused, or contributed to, the loss or damage; or (b) obstructed, or interfered with, the exercise of the respondent’s functions under this Act. (5) The amount stated in a direction may not be more than $25 000. (6) The registrar must, if asked by the complainant in whose favour a direction is made, give the complainant a copy of the direction certified by the registrar.

182 Reviewable capital contribution charges (1) This section applies if the ACAT is satisfied that a capital contribution charge imposed by the respondent is excessive. (2) The ACAT may give the respondent a written direction to reduce the charge to the amount stated in the direction. (3) For subsection (2), the ACAT must state an amount that it considers reasonable having regard to— (a) the cost of the work to which the charge relates; and (b) the relevant industry code. (4) The ACAT may only give a direction under subsection (2) in relation to a capital contribution charge of not more than $10 000. (5) To remove any doubt, this section is additional to, and does not limit— (a) section 179 (Continuity of utility services—nonpayment of customer debt); and (b) section 180 (Discharge of customer debt).

183 Reimbursement of utilities for customer debts discharged If a customer debt owed to a utility is discharged under section 180 (Discharge of customer debt), the amount discharged is a debt due to the utility by the Territory.

184 Protection of confidential information (1) The ACAT must preserve the confidentiality of information disclosed to, or obtained by, the ACAT in the exercise of its functions under this part, including— (a) personal information; and

Confidential information Division 12.6 (b) information that— (i) could affect the competitive position of a utility or someone else; or (ii) is commercially sensitive for another reason. (2) The ICRC Act, sections 44 to 48 apply, so far as applicable, in relation to the functions of the ACAT under this part as if— (a) a reference to the ICRC were a reference to any of the following: (i) the ACAT; (ii) a person who is or has been an ACAT member; (iii) a person who is or has been a member of the staff of the ACAT; (iv) a person who is or has been acting under the direction or authority of the ACAT; and (b) any other necessary changes were made. ACAT member—see the ACT Civil and Administrative Tribunal Act 2008, dictionary, definition of tribunal member.

219 Purposes of pt 13 The purposes of this part are— (a) to oblige utilities to provide utility services in accordance with relevant Government programs, for example, for community services, the environment or other social issues; and (b) to achieve that result by agreement with particular utilities or, where agreement is not reached, by directions under this part; and (c) to provide utilities with a reasonable recompense for the provision of services in accordance with such directions. Note This part applies to NERL retailers (see s 75).

220 Agreement to be sought A direction must not be given under section 221 unless the responsible Minister is satisfied that, despite all reasonable efforts having been made, no agreement has been reached with the utility about achieving the intended result or about the liability for the associated costs.

221 Direction by Minister (1) The Minister responsible for a Government program may give a written direction to a utility to take stated action that the Minister considers appropriate to ensure that the utility’s services are provided in accordance with the program.

Community service obligations Part 13 (2) A direction may, for example, require the utility to provide particular services to particular classes of people free of charge, at stated charges or subject to stated discounts or rebates. (3) A direction must state the Minister’s estimate of the cost to be incurred by the utility in complying with the direction.

222 Determination of costs The cost of giving effect to a direction under section 221 is— (a) in relation to a utility service of a kind currently provided by the utility—the additional cost that would be avoided by the utility if it did not give effect to the direction; and (b) in relation to a proposed utility service—the cost that would be incurred by the utility in providing the service in accordance with the direction.

223 Liability for costs (1) A direction under section 221 has no effect unless the Treasurer certifies in writing that proper arrangements exist for the Territory to pay to the utility the amount of the costs— (a) stated in the direction; or (b) where a dispute about the cost is determined by arbitration because of section 225—as so determined. (2) Where a direction is given to a utility, the amount of the costs fixed in accordance with subsection (1) is a debt due to the utility by the Territory.

224 Compliance with direction A utility must comply with a direction given to it under section 221.

225 Arbitration of dispute about cost (1) If the responsible Minister and the utility concerned dispute the cost of complying with a direction under section 221, either party may refer the dispute to ICRC for arbitration. (2) ICRC must arbitrate a dispute so referred. (3) The following provisions of the ICRC Act, part 6 apply, so far as applicable, to the arbitration: (a) section 33 (1), (2) and (5) (appointment and powers of arbitrator); (b) section 34 (draft determinations); (c) section 36 (1) (parties to give effect to determination); (d) section 37 (termination by parties); (e) section 38, but not paragraph (d) (termination by arbitrator); (f) section 39 (variation of arbitration); (g) section 40 (application of Commercial Arbitration Act 2017).

226 Definitions for pt 14 installation, of a territory network facility, includes— (a) the construction or extension of the facility on, over or under any land or water; and (b) the attachment of the facility to any building or other structure; and (c) any activity that is ancillary or incidental to an activity mentioned in paragraph (a) or (b). interference, with a territory network or territory network facility, includes an action that— (a) interferes with the safe or efficient operation of the network or facility or is likely to have that effect; or (b) inhibits or obstructs lawful access to the network or facility or is likely to have that effect. stormwater drainage means the collection and carriage of water run-off in or through an urban area. stormwater network—see section 227. stormwater network boundary—see section 228. stormwater network code—see section 228. streetlighting does not include streetlighting only for decorative or artistic purposes. streetlight network—see section 229.

streetlight network code means a streetlight network code approved under section 230. streetlight network framework—see section 229A. territory network means a streetlight network or stormwater network. territory network facility means any part of the infrastructure of a territory network. territory network operations means work carried out by or for the Territory under this part for the provision of a territory service. territory network protection notice means a notice under section 249. territory service means streetlighting or stormwater drainage. territory service authorised person means a territory service authorised person under section 242.