Energy Regulations Amendment Regulations 2021 (WA)

15 January 2021 GOVERNMENT GAZETTE, WA 279

EN302

Electricity Industry Act 2004

Gas Services Information Act 2012

Energy Regulations Amendment

Regulations 2021

SL 2021/2

Made by the Governor in Executive Council.

Part 1 - Preliminary

1.           Citation

These regulations are the Energy Regulations Amendment
Regulations 2021.

2.           Commencement

These regulations come into operation as follows -

(a)	Part 1 - on the day on which these regulations are published in the Gazette (gazettal day);
(b)	Part 2 (other than Divisions 2 and 3) - on the day after gazettal day;
(c)	Part 2 Division 2— at 8 am on 1 February 2021;
(d)	Part 4 (other than Division 2) - on the day after gazettal day;
(e)	the rest of the regulations - on 1 July 2021.

Part 2 -Electricity Industry (Wholesale Electricity

Market) Regulations 2004 amended

Division 1 - Amendments coming into operation on day after

gazettal day

3.           Regulations amended

This Division amends the Electricity Industry (Wholesale
Electricity Market) Regulations 2004.

4.           Regulation 7 amended

(1) In regulation 7(3)(c):

(a) in subparagraph (ii) delete "Coordinator." and insert:
Coordinator; or

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(b) after subparagraph (ii) insert:

(iii) amend, repeal or replace market rules dealing with the matters referred to in regulation 1 2C( 1 A).

(2)	In regulation 7(5) delete "1 July 2021." and insert:
31 March 2023.

5.            Regulation 8 replaced

Delete regulation 8 and insert:

8.            Availability of copies of market rules

The Authority must make a copy of the market rules, as in force for the time being, available on a website maintained by, or on behalf of, the Authority.

6.            Regulation 12B amended

In regulation 12B(3) delete "The" and insert:

Before 1 July 2021, the

7.           Regulation 12C amended

(1) After regulation 12C(1) insert:

(1A) The market rules may make provision for governance	matters, including financial management, relating to
the performance of the functions of the Coordinator
under these regulations and the market rules.

(2)	After regulation 12C(2) insert:
(3) On and after 1 July 2021, the Coordinator is responsible for the development, in accordance with the market rules, of amendments of and replacements for the market rules.

15 January 2021 GOVERNMENT GAZETTE, WA 281

(4) The Coordinator may, directly or indirectly, record,
disclose or make use of any information obtained in the
course of duty (whether under these regulations, the
market rules or any other written law or rules) if the
recording, disclosing or making use of the information
is for the purpose of—

(a)	performing functions under these regulations or the market rules; or
(b)	complying with provisions of these regulations or the market rules that impose requirements.

(5) The market rules may impose restrictions or conditions
on the Coordinator's authority to record, disclose or
make use of information under subregulation (4).

8. Regulation 17C inserted
After regulation 17B insert:

17C.	Transitional market rules for transfer of functions from Rule Change Panel to Coordinator
(1)	In this regulation - function means a function under these regulations or the market rules; Rule Change Panel function means a function of the Rule Change Panel before 1 July 2021.
(2)	Without limiting regulation 17(n), the market rules may provide for transitional matters arising in connection with the transfer to the Coordinator of a Rule Change Panel function.
(3)	The provision that may be made under

subregulation (2) includes, without limitation, the
following -
(a)	provision for a thing done or omitted to be done by, to or in relation to the Rule Change Panel before a transfer to be taken after the transfer to have been done or omitted by, to or in relation to the Coordinator;
(b)	provision for a right or obligation of the Rule Change Panel before a transfer to be taken after the transfer to be a right or obligation of the Coordinator;
(c)	provision for a reference to the Rule Change Panel in an instrument or document made or given before a transfer for the purposes of these

regulations or the market rules to be taken after the transfer to be a reference to the Coordinator.

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(4) For the purposes of this regulation, a Rule Change
Panel function is transferred to the Coordinator if—

(a)	the Rule Change Panel function becomes a function of the Coordinator (with or without modifications); or
(b)	a function that is substantially the same as, or that is similar to, or that otherwise replaces, the Rule Change Panel function is otherwise conferred on the Coordinator.

Division 2— Amendments coming into operation at 8 am on

1 February 2021

9.            Regulations amended

This Division amends the Electricity Industry (Wholesale
Electricity Market) Regulations 2004.

10.         Regulation 4A amended

(1)	At the beginning of regulation 4A insert:
(1) In this regulation - 2020 amending rules means the Wholesale Electricity Market Amendment (Tranche 1 Amendments) Rules 2020 made under these regulations (notice of which was given in the Gazette on 24 November 2020) to the extent that those rules come into operation at 8 a on I February 2O2l.
(2)	In regulation 4A delete "A reference" and insert:
(2) Subject to subregulations (3) to (5), a reference
(3)	At the end of regulation 4A insert:
(3) A reference in Schedule 1 or 2 to a provision of the market rules that is amended, or that is inserted into the market rules, by the 2020 amending rules is a reference to that provision as so amended or inserted.

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(4) Despite subregulation (3), subregulation (2) applies to a provision of the market rules that is amended by the 2020 amending rules as follows -

(a) for a reference to the provision in
Schedule 1 - subregulation (2) applies in
relation to -

(i)     a contravention of the provision that occurs before the 2020 amending rules come into operation; and

any continuation of that contravention;

for a reference to the provision in
Schedule 2— subregulation (2) applies in
relation to any decision made under the
provision before the 2020 amending rules come
into operation.

(ii)  

(b)

(5) If, when or after the 2020 amending rules come into
operation, a person contravenes a provision of the
market rules that is amended by the 2020 amending
rules, in determining whether the contravention is a
subsequent contravention for the purposes of
Schedule 1, any contravention of the provision by the
person before the 2020 amending rules come into
operation is to be counted.

11.          Schedule 1 amended

In Schedule 1 insert in numerical order:

ci. 1.4 1.2	A	first contravention: $10 000 subsequent contraventions: $20 000
ci. 3A.1.1	A	first contravention: $10 000

subsequent contraventions: $20 000

ci. 3A.5.7	A	first contravention: $10 000 subsequent contraventions: $20 000
ci. 3A.6.1	A	first contravention: $10 000 subsequent contraventions: $20 000
ci. 3A.8.1	A	first contravention: $10 000 subsequent contraventions: $20 000
ci. 3A.8.5(a)	A	first contravention: $10 000 subsequent contraventions: $20 000
ci. 3A.10.1(a)	A	first contravention: $10 000 subsequent contraventions: $20 000
ci. 3A.13.3	A	first contravention: $10 000 subsequent contraventions: $20 000

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Division 3— Amendments coming into operation on

1 July 2021

12.         Regulations amended

This Division amends the Electricity Industry (Wholesale
Electricity Market) Regulations 2004.

13.         Regulation 3 amended

(1)	In regulation 3 delete the definitions of:
Rule Change Panel System Management
(2)	In regulation 3 insert in alphabetical order:

Rule Change Panel means the Rule Change Panel
established under the Energy Industry (Rule Change
Panel) Regulations 2016 regulation 4 before the
deletion of that regulation by the Energy Regulations
Amendment Regulations 2021 regulation 27;

14.          Regulation 6 amended

Delete regulation 6(8) and insert:

(8) The Coordinator must make a copy of amending rules made by the Minister available on a website maintained by, or on behalf of, the Coordinator.
15.	Regulation 7 amended Delete regulation 7(3)(b).

16.          Regulation 8 replaced

Delete regulation 8 and insert: 

8.            Availability of copies of market rules

The Coordinator must make a copy of the market rules, as in force for the time being, available on a website maintained by, or on behalf of, the Coordinator.

17.          Regulation 12 amended

After regulation 12(4) insert:

(5) The market rules are to confer on the operator the
function of ensuring that the SWIS is operated in a
secure and reliable manner.

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(6)	The market rules may authorise the Authority to give directions to, or impose requirements on, the operator as to the performance of the operator's function
conferred in accordance with subregulation (5) and the operator must comply with directions so given or requirements so imposed.

18.          Regulation 12B deleted

Delete regulation 12B.

19.          Regulation 12C amended

In regulation 12C(3) delete "On and after 1 July 2021, the" and insert:

The

20. Regulation 13 deleted
Delete regulation 13.

21.          Regulation 15 amended

In regulation 15(2) delete "operator, System Management" and insert:

operator

22.          Regulation 19 amended

In regulation 19(2) delete "operator or System Management," and insert:

operator,

23.         Regulation 21 amended

(1)	In regulation 21(1) delete "Authority, the Rule Change Panel" and insert:
Authority
(2)	Delete regulation 21 (1 A).
(3)	Delete regulation 21(2)(c).

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(4) Delete regulation 21(2A) and insert:

(2A) Costs identified under subregulation (1) or (2) must not

relate to functions under the Gas Services Information
Act 2012.

Part 3— Energy Industry (Rule Change Panel)

Regulations 2016 amended

24.          Regulations amended

This Part amends the Energy Industry (Rule Change Panel)
Regulations 2016.

25.          Regulation 3 amended

(1)	In regulation 3 delete the definitions of:
confidential information executive officer market participant Rule Change Panel
staff member
(2)	In regulation 3 insert in alphabetical order:

Coordinator means the Coordinator of Energy referred to in the Energy Coordination Act 1994 section 4; document includes any record of information, irrespective of how the information is recorded or stored or able to be recovered, and includes the following -

(a)	writings can be reproduced, with or without the
any thing from which images, sounds or
aid of anything else;
(b)	any thing on which information is recorded or stored, whether electronically, magnetically, mechanically or by some other means;

Rule Change Panel means the body that was established under regulation 4;

Notes for this definition:

1.         The Rule Change Panel is abolished under regulation 3A (inserted by the Energy Regulations Amendment

Regulations 2021 regulation 26) at the beginning of
1 July 2021.

2.         Regulation 4 is deleted by the Energy Regulations Amendment Regulations 2021 regulation 27 at the beginning of 1 July 2021.

15 January 2021 GOVERNMENT GAZETTE, WA 287

Rule Change Panel document means a document that, immediately before 1 July 2021, is in the possession or control of—

(a)	the Rule Change Panel; or
(b)	the Authority as part of, or otherwise in relation to, its function under regulation 23;

Note for this definition:

Regulation 23 is deleted by the Energy Regulations Amendment Regulations 2021 regulation 27 at the beginning of 1 July 2021.

Rule Change Panel function

means a function of the following -

(a)	these regulations;
(b)	the Electricity Industry (Wholesale Electricity Market) Regulations 2004;
(c)	the Gas Services Information Regulations 2012;
(d)	GSI rules or market rules;

Rule Change Panel legal advice means any legal advice, or other information subject to legal professional privilege, that -

(a)	relates to a Rule Change Panel function; and
(b)	is, or is contained in, a Rule Change Panel document.

26. Part 1A inserted
After regulation 3 insert:

Part 1A -Abolition of Rule Change Panel

3A.	Rule Change Panel abolished
At the beginning of 1 July 2021, the Rule Change Panel is abolished (and its members go out of office).
3B.	Function of Authority relating to abolition of Rule Change Panel
(1)	It is a function of the Authority to do anything that the Authority considers necessary or convenient -

(a)	for the purpose of ensuring the orderly winding-up of the affairs of the Rule Change Panel; or
(b)	otherwise in consequence of the abolition of the Rule Change Panel or the transfer to a person or body of a Rule Change Panel function.

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(2) Without limiting subregulation (1), the Authority -

(a)	must take possession or control of all Rule Change Panel documents not already in the possession or control of the Authority; and
(b)	must provide to the Coordinator -

(i) as and when requested by the
Coordinator, any other Rule Change
Panel document or any other

all Rule Change Panel legal advice; and Panel document;

and

(c)	may otherwise provide any Rule Change Panel document, or any information contained in a Rule Change Panel document, to the Coordinator or to any other person or body to whom a Rule Change Panel function is transferred; and
(d)	may otherwise directly or indirectly record, disclose or make use of any Rule Change Panel document, or any information contained in a Rule Change Panel document, for the purpose of performing -

(i)     the Authority's function under this regulation; or

(ii)     the Authority's obligations under the Financial Management Act 2006.

(3)	Any legal professional privilege of the Rule Change Panel, or of the Authority, attaching to any Rule Change Panel legal advice immediately before 1 July 2021 is taken, on and after 1 July 2021, to be the
legal professional privilege of the Coordinator.
(4)	Any professional or contractual duty owed to the Rule Change Panel, or to the Authority, immediately before 1 July 2021 by a person as the provider of any Rule
Change Panel legal advice is taken, on and after 1 July 2021, to be owed by that person to the Coordinator.
(5)	For the purposes of this regulation, a Rule Change Panel function is transferred to a person or body if—

(a)	the Rule Change Panel function becomes a function of the person or body (with or without modifications); or
(b)	a function that is substantially the same as, or that is similar to, or that otherwise replaces, the Rule Change Panel function is otherwise conferred on the person or body.

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3C.	Restriction on recording, disclosure or use of information by former members of Rule Change Panel
A person (the former member) who was a member of the Rule Change Panel at any time must not, directly or indirectly, record, disclose or make use of any information obtained in the course of duty as a member except -

(a)	as required or allowed by a written law; or
(b)	for the purposes of—

(i)     civil or criminal proceedings; or

(ii)

proceedings before a tribunal a law of the Commonwealth, another State or a Territory;

or

(c)	for the purpose of obtaining legal or other advice from a professional adviser who owes the former member a professional or contractual duty to keep the information confidential; or
(d)	with the written consent of the person to whom the information relates; or
(e)

where the information is in the public domain. Penalty: a fine of $10 000.

27.          Parts 2 to 4 deleted

Delete Parts 2 to 4.

Part 4 - Gas Services Information Regiilatioiis 2012 amended

Division 1 Amendments coming into operation on day after

gazettal day

28.          Regulations amended

This Division amends the Gas Services Information
Regulations 2012.

29.         Regulation 7 amended

(1) In regulation 7(4):

(a) in paragraph (b) delete "made." and insert:

made; and

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(b)	after paragraph (b) insert:
(c) rules must be approved by the Minister before they are made if they -

(i)     amend, repeal or replace GSI rules to confer functions on the Coordinator; or

(ii)     amend, repeal or replace GSI rules that confer functions on the Coordinator; or

(iii)     amend, repeal or replace GSI rules dealing with the matters referred to in regulation 8(2)(c) in relation to the Coordinator.

(2)	After regulation 7(5) insert:
(6) Despite anything in this regulation or the GSI rules, the Minister may make amending rules during the period beginning on the day on which the Energy Regulations Amendment Regulations 2021 regulation 29 comes into operation and ending on 31 March 2023.

30.          Regulation 8 amended

In regulation 8(2):

(a) in paragraph (c) delete "operator" and insert:

operator, the Coordinator

(b)	in paragraph (d)(i) after "operator," insert:
the Coordinator,

31. Regulation 8B inserted
After regulation 8A insert:

8B.	Transitional GSI rules for transfer of functions from Rule Change Panel to Coordinator
(1)	In this regulation - function means a function under these regulations or the GSI rules; Rule Change Panel function means a function of the Rule Change Panel before 1 July 2021.

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(2)	Without limiting regulation 8(2)(o), the GSI rules may provide for transitional matters arising in connection with the transfer to the Coordinator of a Rule Change Panel function.
(3)	The provision that may be made under subregulation (2) includes, without limitation, the following -

(a)	provision for a thing done or omitted to be done by, to or in relation to the Rule Change Panel before a transfer to be taken after the transfer to have been done or omitted by, to or in relation to the Coordinator;
(b)	provision for a right or obligation of the Rule Change Panel before a transfer to be taken after the transfer to be a right or obligation of the Coordinator;
(c)	provision for a reference to the Rule Change Panel in an instrument or document made or given before a transfer for the purposes of these
regulations or the GSI rules to be taken after the transfer to be a reference to the Coordinator.

(4) For the purposes of this regulation, a Rule Change
Panel function is transferred to the Coordinator if—

(a)	the Rule Change Panel function becomes a function of the Coordinator (with or without modifications); or
(b)	a function that is substantially the same as, or that is similar to, or that otherwise replaces, the Rule Change Panel function is otherwise conferred on the Coordinator.

32. Regulation 9 replaced

Delete regulation 9 and insert:

9.            Availability of copies of GSI rules

The ERA must -

(a)	make a copy of the GSI rules, as in force for the time being, available on a website maintained by, or on behalf of, the ERA; and
(b)	if the GSI rules adopt a text of a published document, either as that text exists at a particular time or as it may from time to time be amended - make that text available on that website or specify on that website a place where the text may be obtained.

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33.          Regulation 11 amended

(1)

In regulation 11(5) delete "The" and insert:

Before 1 July 2021, the

(2)

After regulation 11(5) insert:

(6)	The Coordinator is responsible for the development, in accordance with the GSI rules, of amendments of and replacements for the GSI procedures, to the extent to which the procedures relate to the Coordinator's functions.
(7)	On and after 1 July 2021, the Coordinator is responsible for the development, in accordance with the GSI rules, of amendments of and replacements for the GSI rules.

34.         Regulation I 1 inserted At the end of Part 3 insert:

hA.	Use of information by Coordinator
(1)	The Coordinator may, directly or indirectly, record, disclose or make use of any information obtained in the course of duty (whether under these regulations, the GSI rules or any other written law or rules) if the recording, disclosing or making use of the information is for the purpose of performing functions under these regulations or the GSI rules.
(2)	The GSI rules may impose restrictions or conditions on
the Coordinator's authority to record, disclose or make
use of information under subregulation (1).

Division 2— Amendments coming into operation on

1 July 2021

35.          Regulations amended

This Division amends the Gas Services Information
Regulations 2012.

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36.          Regulation 3 amended

In regulation 3(1) delete the definition of Rule Change Panel and insert:

Rule Change Panel means the Rule Change Panel
established under the Energy Industry (Rule Change
Panel) Regulations 2016 regulation 4 before the
deletion of that regulation by the Energy Regulations

Amendment Regulations 2021 regulation 27;

37. Regulation 7 amended
Delete regulation 7(4)(b).

38.          Regulation 8 amended

(1)	In regulation 8(1) delete "the Rule Change Panel (to the extent to which those functions relate to the matters referred to in regulation 7(2)),".
(2)	In regulation 8(2):

(a) in paragraph (c) delete "operator, the Coordinator or the Rule Change Panel" and insert:

operator or the Coordinator

(b) in paragraph (d)(i) delete "Coordinator, the Rule Change Panel" and insert:

Coordinator

39.          Regulation 9 replaced

Delete regulation 9 and insert: 

9. Availability of copies of GSI rules
The Coordinator must -

(a)	make a copy of the GSI rules, as in force for the time being, available on a website maintained by, or on behalf of, the Coordinator; and
(b)	if the GSI rules adopt a text of a published document, either as that text exists at a particular time or as it may from time to time be amended - make that text available on that website or specify on that website a place where the text may be obtained.

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40. Regulation 11 amended

(1)	Delete regulation 11(5).
(2)	In regulation 11(7) delete "On and after 1 July 2021, the" and insert:
The

M. INGLIS, Clerk of the Executive Council.