National Electricity (South Australia) (National Electricity Law—Miscellaneous Amendments) Amendment Act 2007 (SA)

South Australia

National Electricity (South Australia) (National Electricity Law—Miscellaneous Amendments) Amendment Act 2007

An Act to amend the National Electricity (South Australia) Act 1996.

The Parliament of South Australia enacts as follows:

Part 1—Preliminary

1—Short title

This Act may be cited as the National Electricity (South Australia) (National Electricity Law—Miscellaneous Amendments) Amendment Act 2007.

2—Commencement

(1)
This Act will come into operation on a day to be fixed by proclamation.
(2)
Section 7(5) of the Acts Interpretation Act 1915 does not apply to this Act or a provision of this Act.

3—Definition

In this Act—
NEL means the National Electricity Law set out in the Schedule to the National Electricity (South Australia) Act 1996.

4—Amendment provisions

In this Act, a provision under a heading referring to the amendment of a specified Act amends the Act so specified.

Part 2—Amendment of National Electricity (South Australia) Act 1996 as part of the national scheme

5—Amendment of section 2 of the NEL—Definitions

(1)
NEL, section 2—before the definition of AEMC initiated Rule insert:
access determination means a determination of the AER under Part 10;
access dispute has the meaning given by section 2A;
additional Minister initiated Rules means Rules made under section 90A by the Minister in right of the Crown of South Australia administering Part 2 of the National Electricity (South Australia) Act 1996 of South Australia;
AEMC means the Australian Energy Market Commission established by section 5 of the Australian Energy Market Commission Establishment Act 2004 of South Australia;
(2)
NEL, section 2, definition of AER economic regulatory function or power—delete the definition and substitute:
AER means the Australian Energy Regulator established by section 44AE of the Trade Practices Act 1974 of the Commonwealth;
AER economic regulatory decision means a decision (however described) of the AER under this Law or the Rules performing or exercising an AER economic regulatory function or power;
AER economic regulatory function or power means a function or power performed or exercised by the AER under this Law or the Rules that relates to the economic regulation of services provided by—
(a)
a regulated distribution system operator by means of, or in connection with, a distribution system; or
(b)
a regulated transmission system operator by means of, or in connection with, a transmission system,
and includes a function or power performed or exercised by the AER under this Law or the Rules that relates to—
(c)
the preparation of a network service provider performance report;
(d)
the making of, as the case requires, a distribution determination or transmission determination;
(e)
an access determination;
associate in relation to a person has the same meaning it would have under Division 2 of Part 1.2 of the Corporations Act 2001 of the Commonwealth if sections 13, 16(2) and 17 did not form part of that Act;
(3)
NEL, section 2, definitions of Australian Energy Market Commission and Australian Energy Regulator—delete the definitions
(4)
NEL, section 2—after the definition of derogation insert:
direct control network service has the meaning given by section 2B;
distribution determination means a determination of the AER under the Rules that regulates any 1 or more of the following:
(a)
the terms and conditions for the provision of electricity network services that are the subject of economic regulation under the Rules including the prices an owner, controller or operator of a distribution system charges or may charge for those services;
(b)
the revenue an owner, controller or operator of a distribution system earns or may earn from the provision by that owner, controller or operator of electricity network services that are the subject of economic regulation under the Rules;
distribution reliability standard means a standard imposed by or under the Rules or jurisdictional electricity legislation relating to the reliability or performance of a distribution system;
distribution service standard means a standard relating to the standard of services provided by a regulated distribution system operator by means of, or in connection with, a distribution system imposed—
(a)
by or under jurisdictional electricity legislation; or
(b)
by the AER in accordance with the Rules;
distribution system safety duty means a duty or requirement under an Act of a participating jurisdiction, or any instrument made or issued under or for the purposes of that Act, relating to—
(a)
the safe distribution of electricity in that jurisdiction; or
(b)
the safe operation of the distribution system in that jurisdiction;
(5)
NEL, section 2—after the definition of draft Rule determination insert:
electricity network service means a service provided by means of, or in connection with, a transmission system or distribution system;
(6)
NEL, section 2, definition of electricity services—delete paragraph (b) and substitute:
(b)
electricity network services;
(7)
NEL, section 2—after the definition electricity services insert:
end user means a person who acquires electricity or proposes to acquire electricity for consumption purposes;
(8)
NEL, section 2—after the definition of final Rule determination insert:
form of regulation factors has the meaning given by section 2F;
general regulatory information order has the meaning given by section 28C;
(9)
NEL, section 2—after the definition of initial National Electricity Rules insert:
interconnected national electricity system means the interconnected transmission and distribution system in this jurisdiction and in the other participating jurisdictions used to convey and control the conveyance of electricity to which are connected—
(a)
generating systems and other facilities; and
(b)
loads settled through the wholesale exchange operated and administered by NEMMCO under this Law and the Rules;
(10)
NEL, section 2, definition of jurisdictional electricity legislation—delete the definition and substitute:
jurisdictional electricity legislation means an Act of a participating jurisdiction (other than national electricity legislation), or any instrument made or issued under or for the purposes of that Act, that regulates the generation, transmission, distribution, supply or sale of electricity in that jurisdiction;
(11)
NEL, section 2, definition of jurisdictional regulator, paragraphs (a) to (e)—delete the paragraphs and substitute:
(a)
if this Law is applied as a law of the State of New South Wales—
(i)
the Independent Pricing and Regulatory Tribunal of New South Wales established by section 5(1) of the Independent Pricing and Regulatory Tribunal Act 1992 of New South Wales; or
(ii)
if the functions or powers of the Independent Pricing and Regulatory Tribunal of New South Wales under this Law are transferred to the AER by or under a law of New South Wales, the AER;
(b)
if this Law is applied as a law of the State of Victoria—
(i)
the Essential Services Commission established by section 7(1) of the Essential Services Commission Act 2001 of Victoria; or
(ii)
if the functions or powers of that Essential Services Commission under this Law are transferred to the AER by or under a law of Victoria, the AER;
(c)
if this Law is applied as a law of the State of Queensland—
(i)
the Queensland Competition Authority established by section 7 of the Queensland Competition Authority Act 1997 of Queensland; or
(ii)
if the functions or powers of the Queensland Competition Authority under this Law are transferred to the AER by or under a law of Queensland, the AER;
(d)
if this Law is applied as a law of the State of South Australia—
(i)
the Essential Services Commission established by section 4(1) of the Essential Services Commission Act 2002 of South Australia; or
(ii)
if the functions or powers of that Essential Services Commission under this Law are transferred to the AER by or under a law of South Australia, the AER;
(e)
if this Law is applied as a law of the Australian Capital Territory—
(i)
the Independent Competition and Regulatory Commission for the Australian Capital Territory established by section 5(1) of the Independent Competition and Regulatory Commission Act 1997 of the Australian Capital Territory; or
(ii)
if the functions or powers of the Independent Competition and Regulatory Commission for the Australian Capital Territory under this Law are transferred to the AER by or under a law of the Australian Capital Territory, the AER;
(12)
NEL, section 2—after the definition of MCE insert:
MCE directed review means a review conducted by the AEMC under Division 4 of Part 4;
(13)
NEL, section 2, definition of national electricity market objective—delete the definition and substitute:
national electricity objective means the objective set out in section 7;
(14)
NEL, section 2, definition of National Electricity Rules—
(a)
after paragraph (a) insert:
(ab)
additional Minister initiated Rules; and
(b)
in paragraph (b)(i)—after "Rules" insert:
or additional Minister initiated Rules
(15)
NEL, section 2, definition of national electricity system—
(a)
delete "interconnected transmission and distribution system referred to in paragraph (b)" and substitute:
interconnected national electricity system
(b)
delete paragraph (b) and substitute:
(b)
the interconnected national electricity system;
(16)
NEL, section 2—after the definition of national electricity system insert:
negotiated network service has the meaning given by section 2C;
(17)
NEL, section 2—after the definition of NEMMCO insert:
network revenue or pricing determination means a distribution determination or a transmission determination;
network service provider means a Registered participant registered for the purposes of section 11(2) that owns, controls or operates a transmission system or distribution system that forms part of the interconnected national electricity system;
network service provider performance report means a report prepared by the AER under section 28V;
network service user means a user who is provided with an electricity network service;
(18)
NEL, section 2, definition of offence provision—delete the definition and substitute:
offence provision means a provision of this Law the breach or contravention of which by a person exposes that person to a finding of guilt by a court;
officer has the same meaning as officer has in relation to a corporation under section 9 of the Corporations Act 2001 of the Commonwealth;
(19)
NEL, section 2—after the definition of power system security insert:
prospective network service user means a person who seeks or wishes to be provided with an electricity network service;
(20)
NEL, section 2—after the definition of Registered participant insert:
regulated distribution system operator means an owner, controller or operator of a distribution system—
(a)
who is a Registered participant; and
(b)
whose revenue from, or prices that are charged for, the provision of electricity network services are regulated under a distribution determination;
regulated network service provider means—
(a)
a regulated distribution system operator; or
(b)
a regulated transmission system operator;
(21)
NEL, section 2, definition of regulated transmission system operator—delete paragraph (b) and substitute:
(b)
whose revenue from, or prices that are charged for, the provision of electricity network services are regulated under a transmission determination;
(22)
NEL, section 2, definition of regulatory obligation—delete the definition and substitute:
regulatory information instrument means a general regulatory information order or a regulatory information notice;
regulatory information notice has the meaning given by section 28D;
regulatory obligation or requirement has the meaning given by section 2D;
regulatory payment has the meaning given by section 2E;
(23)
NEL, section 2—after the definition of Reliability Panel insert:
revenue and pricing principles means the principles set out in section 7A;
(24)
NEL, section 2, definition of transmission determination—delete the definition and substitute:
transmission determination means a determination of the AER under the Rules that regulates any 1 or more of the following:
(a)
the terms and conditions for the provision of electricity network services that are the subject of economic regulation under the Rules including the prices an owner, controller or operator of a transmission system charges or may charge for those services;
(b)
the revenue an owner, controller or operator of a transmission system earns or may earn from the provision by that owner, controller or operator of electricity network services that are the subject of economic regulation under the Rules;
(25)
NEL, section 2—definition of transmission service standard—delete "Rules." and substitute:
Rules;
(26)
NEL, section 2—after the definition of transmission service standard insert:
transmission system safety duty means a duty or requirement under an Act of a participating jurisdiction, or any instrument made or issued under or for the purposes of that Act, relating to—
(a)
the safe transmission of electricity in that jurisdiction; or
(b)
the safe operation of the transmission system in that jurisdiction;
Tribunal means the Australian Competition Tribunal referred to in the Trade Practices Act 1974 of the Commonwealth and includes a member of the Tribunal or a Division of the Tribunal performing functions of the Tribunal.
(27)
NEL, section 2—after the definition of distribution service standard insert:
distribution system means the apparatus, electric lines, equipment, plant and buildings used to convey or control the conveyance of electricity that the Rules specify as, or as forming part of, a distribution system;
(28)
NEL, section 2—after the definition of transmission service standard insert:
transmission system means the apparatus, electric lines, equipment, plant and buildings used to convey or control the conveyance of electricity that the Rules specify as, or forming part of, a transmission system;
6—Amendment of the NEL—New sections 2A to 2F inserted
NEL—after section 2 insert:
2A—Meaning of access dispute
An access dispute is a dispute between—
(a)
a network service user or prospective network service user; and
(b)
a network service provider,
about an aspect of access to an electricity network service specified by the Rules to be an aspect to which Part 10 applies.
2B—Meaning of direct control network service
A direct control network service is an electricity network service—
(a)
the Rules specify as a service the price for which, or the revenue to be earned from which, must be regulated under a distribution determination or transmission determination; or
(b)
if the Rules do not do so, the AER specifies, in a distribution determination or transmission determination, as a service the price for which, or the revenue to be earned from which, must be regulated under the distribution determination or transmission determination.
2C—Meaning of negotiated network service
A negotiated network service is an electricity network service—
(a)
that is not a direct control network service; and
(b)
that—
(i)
the Rules specify as a negotiated network service; or
(ii)
if the Rules do not do so, the AER specifies as a negotiated network service in a distribution determination or transmission determination.
2D—Meaning of regulatory obligation or requirement
(1)
A regulatory obligation or requirement is—
(a)
in relation to the provision of an electricity network service by a regulated network service provider—
(i)
a distribution system safety duty or transmission system safety duty; or
(ii)
a distribution reliability standard or transmission reliability standard; or
(iii)
a distribution service standard or transmission service standard; or
(b)
an obligation or requirement under—
(i)
this Law or Rules; or
(ii)
an Act of a participating jurisdiction, or any instrument made or issued under or for the purposes of that Act, that levies or imposes a tax or other levy that is payable by a regulated network service provider; or
(iii)
an Act of a participating jurisdiction, or any instrument made or issued under or for the purposes of that Act, that regulates the use of land in a participating jurisdiction by a regulated network service provider; or
(iv)
an Act of a participating jurisdiction or any instrument made or issued under or for the purposes of that Act that relates to the protection of the environment; or
(v)
an Act of a participating jurisdiction, or any instrument made or issued under or for the purposes of that Act (other than national electricity legislation or an Act of a participating jurisdiction or an Act or instrument referred to in subparagraphs (ii) to (iv)), that materially affects the provision, by a regulated network service provider, of electricity network services that are the subject of a distribution determination or transmission determination.
(2)
A regulatory obligation or requirement does not include an obligation or requirement to pay a fine, penalty or compensation—
(a)
for a breach of—
(i)
a distribution system safety duty or transmission system safety duty; or
(ii)
a distribution reliability standard or transmission reliability standard; or
(iii)
a distribution service standard or transmission service standard; or
(b)
under this Law or the Rules or an Act or an instrument referred to in subsection (1)(b)(ii) to (v).
Note—
See also section 7A(2)(b).
2E—Meaning of regulatory payment
A regulatory payment is a sum that a regulated network service provider has been required or allowed to pay to a network service user or an end user for a breach of, as the case requires—
(a)
a distribution reliability standard or transmission reliability standard; or
(b)
a distribution service standard or transmission service standard,
because it was efficient for the regulated network service provider (in terms of the provider's overall business) to pay that sum.
Note—
See also section 7A(2)(b).
2F—Form of regulation factors
The form of regulation factors are—
(a)
the presence and extent of any barriers to entry in a market for electricity network services;
(b)
the presence and extent of any network externalities (that is, interdependencies) between an electricity network service provided by a network service provider and any other electricity network service provided by the network service provider;
(c)
the presence and extent of any network externalities (that is, interdependencies) between an electricity network service provided by a network service provider and any other service provided by the network service provider in any other market;
(d)
the extent to which any market power possessed by a network service provider is, or is likely to be, mitigated by any countervailing market power possessed by a network service user or prospective network service user;
(e)
the presence and extent of any substitute, and the elasticity of demand, in a market for an electricity network service in which a network service provider provides that service;
(f)
the presence and extent of any substitute for, and the elasticity of demand in a market for, electricity or gas (as the case may be);
(g)
the extent to which there is information available to a prospective network service user or network service user, and whether that information is adequate, to enable the prospective network service user or network service user to negotiate on an informed basis with a network service provider for the provision of an electricity network service to them by the network service provider.
7—Amendment of section 6 of the NEL—Ministers of participating jurisdictions
NEL—delete section 6(2) and (3)
8—Amendment of the NEL—Section 7 substituted and new section 7A inserted
NEL—delete section 7 and substitute:
7—National electricity objective
The objective of this Law is to promote efficient investment in, and efficient operation and use of, electricity services for the long term interests of consumers of electricity with respect to—
(a)
price, quality, safety, reliability and security of supply of electricity; and
(b)
the reliability, safety and security of the national electricity system.
7A—Revenue and pricing principles
(1)
The revenue and pricing principles are the principles set out in subsections (2) to (7).

(2)
A regulated network service provider should be provided with a reasonable opportunity to recover at least the efficient costs the operator incurs in—
(a)
providing direct control network services; and
(b)
complying with a regulatory obligation or requirement or making a regulatory payment.
(3)
A regulated network service provider should be provided with effective incentives in order to promote economic efficiency with respect to direct control network services the operator provides. The economic efficiency that should be promoted includes—
(a)
efficient investment in a distribution system or transmission system with which the operator provides direct control network services; and
(b)
the efficient provision of electricity network services; and
(c)
the efficient use of the distribution system or transmission system with which the operator provides direct control network services.
(4)
Regard should be had to the regulatory asset base with respect to a distribution system or transmission system adopted—
(a)
in any previous—
(i)
as the case requires, distribution determination or transmission determination; or
(ii)
determination or decision under the National Electricity Code or jurisdictional electricity legislation regulating the revenue earned, or prices charged, by a person providing services by means of that distribution system or transmission system; or
(b)
in the Rules.
(5)
A price or charge for the provision of a direct control network service should allow for a return commensurate with the regulatory and commercial risks involved in providing the direct control network service to which that price or charge relates.
(6)
Regard should be had to the economic costs and risks of the potential for under and over investment by a regulated network service provider in, as the case requires, a distribution system or transmission system with which the operator provides direct control network services.
(7)
Regard should be had to the economic costs and risks of the potential for under and over utilisation of a distribution system or transmission system with which a regulated network service provider provides direct control network services.
9—Amendment of section 8 of the NEL—MCE statements of policy principles
(1)
NEL, section 8(1)—after "powers" insert:
in—
(a)
making a Rule; or
(b)
conducting a review under section 45
(2)
NEL, section 8(2)—delete "market"
10—Amendment of the NEL—New Division heading inserted into Part 2
NEL—before section 11 insert:
Division 1—Registration
11—Amendment of section 11 of the NEL—Electricity market activities in this jurisdiction
(1)
NEL, section 11(1)—delete "a generating system connected to the interconnected transmission and distribution system" and substitute:
, in this jurisdiction, a generating system connected to the interconnected national electricity system
(2)
NEL, section 11(2)—delete "a transmission system or distribution system that forms part of the interconnected transmission and distribution system" and substitute:
, in this jurisdiction, a transmission system or distribution system that forms part of the interconnected national electricity system
(3)
NEL, section 11(3)—after "administering" insert:
, in this jurisdiction,
(4)
NEL, section 11(4)—after "engage in" insert:
, in this jurisdiction,
12—Amendment of the NEL—New Division 2 inserted into Part 2
NEL—after section 14 insert:
Division 2—Regulated network service providers
14A—Regulated transmission system operator must comply with transmission determination
A regulated transmission system operator must comply with a transmission determination that applies to the electricity network services provided by that operator.
Note—
Section 14A is a civil penalty provision: See the definition of civil penalty provision in section 58.
14B—Regulated distribution system operator must comply with distribution determination
A regulated distribution system operator must comply with a distribution determination that applies to the electricity network services provided by that operator.
Note—
Section 14B is a civil penalty provision: See the definition of civil penalty provision in section 58.
13—Amendment of section 15 of the NEL—Functions and powers of AER
(1)
NEL, section 15(a)—delete the paragraph and substitute:
(a)
to monitor compliance by—
(i)
Registered participants and other persons with this Law, the Regulations and the Rules; and
(ii)
regulated network service providers with network revenue or pricing determinations; and
(2)
NEL, section 15(b)—delete "that are not offence provisions" and substitute:
, including offences against this Law
(3)
NEL, section 15(c)(iii)—delete "; and" and substitute:
; or
(4)
NEL, section 15—after paragraph (c)(iii) insert:
(iv)
in relation to offences against this Law; and
(5)
NEL, section 15—after paragraph (e) insert:
(ea)
to prepare and publish reports on the financial and operational performance of network service providers in providing electricity network services; and
(eb)
to approve compliance programs of service providers relating to compliance by service providers with this Law or the Rules; and
(6)
NEL, section 15—after its present contents (now to be designated as subsection (1)) insert:
(2)
The AER has the power to do all things necessary or convenient to be done for or in connection with the performance of its functions.
14—Amendment of the NEL—New section 16 substituted
NEL—delete section 16 and substitute:
16—Manner in which AER performs AER economic regulatory functions or powers
(1)
The AER must, in performing or exercising an AER economic regulatory function or power—
(a)
perform or exercise that function or power in a manner that will or is likely to contribute to the achievement of the national electricity objective; and
(b)
if the function or power performed or exercised by the AER relates to the making of a distribution determination or transmission determination, ensure that the regulated network service provider to whom the determination will apply, and any affected Registered participant, are, in accordance with the Rules—
(i)
informed of material issues under consideration by the AER; and
(ii)
given a reasonable opportunity to make submissions in respect of that determination before it is made.
(2)
In addition, the AER—
(a)
must take into account the revenue and pricing principles—
(i)
when exercising a discretion in making those parts of a distribution determination or transmission determination relating to direct control network services; or
(ii)
when making an access determination relating to a rate or charge for an electricity network service; and
(b)
may take into account the revenue and pricing principles when performing or exercising any other AER economic function or power, if the AER considers it appropriate to do so.
(3)
For the purposes of subsection (2)(a)(ii), a reference to a "direct control network service" in the revenue and pricing principles must be read as a reference to an "electricity network service".
(4)
In this section—
affected Registered participant means a Registered participant (other than the regulated network service provider to whom the distribution determination or transmission determination will apply) whose interests are affected by the distribution determination or transmission determination.
15—Amendment of the NEL—New section 18 substituted
NEL—delete section 18 and substitute:
18—Confidentiality
Section 44AAF of the Trade Practices Act 1974 of the Commonwealth has effect for the purposes of this Law, the Regulations and the Rules as if it formed part of this Law.
Note—
See also Division 6.
16—Amendment of the NEL—New heading to Division 2 of Part 3
NEL—delete the heading to Division 2 of Part 3 and substitute:
Division 2—Search warrants

17—Amendment of section 19 of the NEL—Definitions

NEL, section 19, definition of relevant provision—delete the definition and substitute:
relevant provision means a provision of this Law, the Regulations or the Rules.
18—Amendment of the NEL—New section 20 substituted and new sections 20A and 20B inserted
NEL—delete section 20 and substitute:
20—Authorised person
(1)
The AER may, in writing, authorise a person that the AER considers is suitably qualified or trained to be an authorised person for the purposes of this Division.
(2)
An authorised person must comply with any direction of the AER in exercising powers or functions as an authorised person.
20A—Identity cards
(1)
The AER must issue an identity card to an authorised person.
(2)
The identity card must contain the name, a recent photograph and the signature of the authorised person.
(3)
An authorised person must carry the identity card at all times when exercising powers or performing functions as an authorised person.
(4)
An authorised person must produce his or her identity card for inspection—
(a)
before exercising a power as an authorised person; or
(b)
at any time during the exercise of a power as an authorised person, if asked to do so.
20B—Return of identity cards
If a person to whom an identity card has been issued ceases to be an authorised person, the person must return the identity card to the AER as soon as practicable.
Maximum penalty: $500.
19—Amendment of section 21 of the NEL—Search warrant
(1)
NEL—delete section 21(1) and substitute:
(1)
An authorised person may apply to a magistrate for the issue of a search warrant in relation to a particular place if the person—
(a)
believes on reasonable grounds that—
(i)
there is or has been or will be a breach of a relevant provision; and
(ii)
there is or may be a thing or things of a particular kind connected with that breach on or in that place; or
(b)
reasonably suspects that—
(i)
there may have been a breach of a relevant provision; and
(ii)
there is or may be a thing or things of a particular kind connected with that breach on or in that place.
(2)
NEL, section 21(2)—delete "authorising a person" and substitute:
authorising an authorised person
(3)
NEL, section 21(2)(d)—delete "photograph" and substitute:
record an image of
20—Amendment of the NEL—deletion and substitution of sections 22 and 23
NEL—delete sections 22 and 23 and substitute:
22—Announcement of entry and details of warrant to be given to occupier or other person at premises
(1)
This section applies if the occupier or another person who apparently represents the occupier is present at premises when a search warrant is being executed.
(2)
The authorised person executing the warrant must—
(a)
identify himself or herself to that person; and
(b)
announce that he or she is authorised by the warrant to enter the place; and
(c)
before using force to enter, give the person an opportunity to allow entry; and
(d)
give the person a copy of the warrant.
(3)
The authorised person executing the warrant is not entitled to exercise any powers under the warrant in relation to premises if the authorised person does not comply with subsection (2).
23—Announcement before entry
An authorised person executing a warrant need not comply with section 22 if he or she believes on reasonable grounds that immediate entry to premises is required to ensure—
(a)
the safety of any person; or
(b)
that the effective execution of the search warrant is not frustrated.
21—Amendment of section 24 of the NEL—Copies of seized documents
(1)
NEL, section 24(1)—delete "a person" where first occurring and substitute:
an authorised person
(2)
NEL, section 24(1)—delete "the person" where twice occurring and substitute:
the authorised person

22—Amendment of NEL—New section 25 substituted

NEL—delete section 25 and substitute:
25—Retention and return of seized documents or things
(1)
If an authorised person executing a warrant seizes a document or other thing in accordance with the warrant, the authorised person must if he or she is not a person employed by the AER, give the document or other thing seized to the AER.
(2)
The AER must take reasonable steps to return the document or thing to the person from whom it was seized if the reason for its seizure no longer exists.
(3)
If the document or thing seized has not been returned within 3 months after it was seized, the AER must take reasonable steps to return it unless—
(a)
proceedings for the purpose for which the document or thing was retained have commenced within that 3 month period and those proceedings (including any appeal) have not been completed; or
(b)
a magistrate makes an order under section 26 extending the period during which the document or thing may be retained.
23—Amendment of section 26 of the NEL—Extension of period of retention of documents or things seized
NEL, section 26(1)—delete "An authorised person" and substitute:
The AER
24—Amendment of section 27 of the NEL—Obstruction of person authorised to enter
NEL, section 27—delete "a person in" and substitute:
an authorised person in
25—Amendment of the NEL—New Divisions 3 to 7 of Part 3 inserted
NEL—delete section 28 and substitute:
Division 3—General information gathering powers
28—Power to obtain information and documents in relation to performance and exercise of functions and powers
(1)
If the AER has reason to believe that a person is capable of providing information or producing a document that the AER requires for the performance or exercise of a function or power conferred on it under this Law or the Rules, the AER may, by notice in writing, serve on that person a notice (a relevant notice).
(2)
A relevant notice may require the person to—
(a)
provide to the AER, by writing signed by that person or, in the case of a body corporate, by a competent officer of the body corporate, within the time and in the manner specified in the notice, any information of the kind referred to in subsection (1); or
(b)
produce to the AER, or to a person specified in the notice acting on its behalf, in accordance with the notice, any documents of the kind referred to in subsection (1).
(3)
A person on whom a relevant notice is served must comply with the relevant notice unless the person has a reasonable excuse.
Maximum penalty:
(a)
in the case of a natural person—$2 000;
(b)
in the case of a body corporate—$10 000.
(4)
A person must not, in purported compliance with a relevant notice, provide information that the person knows is false or misleading in a material particular.
Maximum penalty:
(a)
in the case of a natural person—$2 000;
(b)
in the case of a body corporate—$10 000.
(5)
It is a reasonable excuse for the purposes of subsection (3) if the person served the relevant notice is not capable of complying with that notice.
(6)
It is a reasonable excuse for a natural person to—
(a)
fail to provide information of the kind referred to in subsection (1) to the AER; or
(b)
fail to produce a document of the kind referred to in subsection (1) to the AER, or to a person specified in a relevant notice acting on behalf of the AER,
if to do so might tend to incriminate the person, or make the person liable to a criminal penalty, under a law of this jurisdiction or another jurisdiction in Australia (whether or not that other jurisdiction is a participating jurisdiction).
(7)
It is not a reasonable excuse for a person to—
(a)
fail to provide information of the kind referred to in subsection (1) to the AER; or
(b)
fail to produce a document of the kind referred to in subsection (1) to the AER, or to a person specified in a relevant notice acting on behalf of the AER,
on the ground of any duty of confidence.
(8)
This section does not require a person to—
(a)
provide information that is the subject of legal professional privilege; or
(b)
produce a document the production of which would disclose information that is the subject of legal professional privilege.
(9)
This section does not require a person to—
(a)
provide information that would disclose the contents of a document prepared for the purposes of a meeting of the Cabinet or a committee of the Cabinet of the Commonwealth or of a State or a Territory; or
(b)
produce a document prepared for the purposes of a meeting of the Cabinet or a committee of the Cabinet of the Commonwealth or of a State or a Territory; or
(c)
provide information, or produce a document, that would disclose the deliberations of the Cabinet or a committee of the Cabinet of the Commonwealth or of a State or a Territory.
(10)
A person incurs, by complying with a relevant notice, no liability for breach of contract, breach of confidence or any other civil wrong.
Division 4—Regulatory information notices and general regulatory information orders
Subdivision 1—Interpretation
28A—Definitions
In this Division—
contributing service has the meaning given by section 28B;
related provider means a person who supplies a contributing service to a regulated network service provider.
28B—Meaning of contributing service
(1)
A contributing service is a service that the AER, in accordance with this section, decides is a service that contributes in a material way to the provision of an electricity network service by a regulated network service provider.
(2)
In deciding whether a service is a service that contributes in a material way to the provision of an electricity network service by a regulated network service provider, the AER must have regard to—
(a)
the nature and kind of the service;
(b)
when the service was first supplied;
(c)
the nature and extent of the contribution of the service relative to—
(i)
the electricity network service; and
(ii)
all other services supplied by the regulated network service provider;
(d)
whether the service was previously supplied—
(i)
by the regulated network service provider; or
(ii)
directly or indirectly by an associate of the regulated network service provider;
(e)
whether the service, together with other services, contributes in a material way to the provision of electricity network services;
(f)
any other matter specified under the Rules.
28C—Meaning of general regulatory information order
A general regulatory information order is an order made by the AER in accordance with this Division that requires each regulated network service provider of a specified class, or each related provider of a specified class, to do either or both of the following:
(a)
provide to the AER the information specified in the order;
(b)
prepare, maintain or keep information specified in the notice in a manner and form specified in the order.
28D—Meaning of regulatory information notice
A regulatory information notice is a notice prepared and served by the AER in accordance with this Division that requires the regulated network service provider, or a related provider, named in the notice to do either or both of the following:
(a)
provide to the AER the information specified in the notice;
(b)
prepare, maintain or keep information specified in the notice in a manner and form specified in the notice.
28E—Division does not limit operation of information gathering powers under Division 3
This Division does not limit the operation of Division 3.
Subdivision 2—Serving and making of regulatory information instruments
28F—Service and making of regulatory information instrument
(1)
Subject to this Division, the AER, if it considers it reasonably necessary for the performance or exercise of its functions or powers under this Law or the Rules, may—
(a)
serve a regulatory information notice on a regulated network service provider or a related provider; or
(b)
make a general regulatory information order.
(2)
In considering whether it is reasonably necessary to serve a regulatory information notice, or make a general regulatory information order, the AER must have regard to—
(a)
the matter to be addressed by—
(i)
the service of the regulatory information notice; or
(ii)
the making of the general regulatory information order; and
(b)
the likely costs that may be incurred by an efficient network service provider or efficient related provider in complying with the notice or order.
Note—
The AER must also exercise its powers under this section in a manner that will or is likely to contribute to the achievement of the national electricity objective: see section 16.
(3)
A regulatory information notice must not be served, or a general regulatory information order must not be made, solely for the purpose of—
(a)
investigating breaches or possible breaches of provisions of this Law, the Regulations or the Rules, including offences against this Law; or

(b)
instituting and conducting proceedings in relation to breaches of provisions of this Law, the Regulations or the Rules, including offences against this Law; or
(c)
instituting and conducting appeals from decisions in proceedings referred to in paragraph (b); or
(d)
collecting information for the preparation of a service provider performance report; or
(e)
any application for review of a decision of the AER under Division 3A of Part 6.
28G—Additional matters to be considered for related provider regulatory information instruments
(1)
This section applies if the AER is intending to—
(a)
serve a regulatory information notice on a related provider; or
(b)
make a general regulatory information order that will apply to a class of related providers.
(2)
In addition to the matters set out in section 28F(2), the AER, in considering whether it is reasonably necessary to serve the regulatory information notice, or make the general regulatory information order, must have regard to—
(a)
whether the regulated network service provider being supplied a contributing service by the related provider or related providers to which the intended regulatory information instrument will apply can—
(i)
provide the information to be specified in that instrument; or
(ii)
prepare, maintain or keep the information to be specified in the particular manner and form to be specified in that instrument; and
(b)
the extent to which the related provider or related providers to which the intended regulatory information instrument will apply is, or are, supplying a contributing service on a genuinely competitive basis; and
(c)
the nature of any ownership or control between—
(i)
the regulated network service provider being supplied a contributing service by a related provider to which the intended regulatory information instrument will apply; and
(ii)
that related provider; and
(d)
the nature of any ownership or control as between different related providers supplying the contributing service to the regulated network service provider; and
(e)
any other matter the AER considers relevant.
(3)
For the purposes of subsection (2)(b), in considering whether a contributing service is being supplied on a genuinely competitive basis, the AER may take into account—
(a)
whether there is effective competition in the market for the supply of the contributing service; and
(b)
whether the related provider supplies the contributing service to a regulated network service provider under a contract, arrangement or understanding entered into with that regulated network service provider following a competitive process for the awarding of the right to enter into that contract, arrangement or understanding involving persons who were not associates of the regulated network service provider.
28H—AER must consult before publishing a general regulatory information order
The AER must, in accordance with the Rules, consult with the public in relation to the general regulatory information order it proposes to make before it makes that order.
Note—
See also section 28ZC about what the AER must and may do after receiving submissions.
28I—Publication requirements for general regulatory information orders
(1)
A general regulatory information order made under section 28F(1)(b) must be published on the AER's website as soon as practicable after it is made.
(2)
Notice of the making of a general regulatory information order must be published in a newspaper circulating generally throughout Australia as soon as practicable after the general regulatory information order is made.
28J—Opportunity to be heard before regulatory information notice is served
(1)
The AER, before serving a regulatory information notice, must—
(a)
notify, in writing, the regulated network service provider, or the related provider, on whom the AER intends to serve the regulatory information notice of its intention to do so; and
(b)
give the regulated network service provider a draft of the regulatory information notice it intends to serve.
(2)
If the regulatory information notice to be served is an urgent notice, the AER must, in a notice under subsection (1)—
(a)
identify the regulatory information notice to be served as an urgent notice; and
(b)
give its reasons, in writing, why the regulatory information notice to be served is an urgent notice.
(3)
A regulatory information notice is an urgent notice if—
(a)
under the notice the AER will require the regulated network service provider or related provider to provide information to the AER; and
(b)
that requirement has arisen because the AER considers it must deal with or address a particular matter or thing in order for it to make an AER economic regulatory decision; and
(c)
the AER considers that, having regard to the time within which it must make that AER economic regulatory decision, the time within which the AER requires the information is of the essence.
(4)
A notice under subsection (1) must—
(a)
invite the regulated network service provider, or the related provider, to make written representations to the AER as to whether the AER should serve the regulatory information notice on them; and
(b)
specify the period within which the regulated network service provider, or the related provider, may make the representations.
(5)
The period that must be specified in accordance with subsection (4) must be—
(a)
in the case of an urgent notice to be served—a period of not less than 5 business days and not more than 10 business days calculated from the date of the notice under subsection (1);
(b)
in all other cases—a period of at least 20 business days calculated from the date of the notice under subsection (1).
(6)
The AER must consider the written representations made in accordance with a notice under subsection (1) before making its decision in accordance with this Division to serve the regulatory information notice.
Subdivision 3—Form and content of regulatory information instruments
28K—Form and content of regulatory information instrument
(1)
A regulatory information instrument—
(a)
must specify the information required to be—
(i)
provided to the AER;
(ii)
prepared, maintained or kept in the particular manner and form specified in the instrument; and
(b)
may specify the manner and form in which the information described in the instrument is required to be—
(i)
provided to the AER;
(ii)
prepared, maintained or kept; and
(c)
must state the reasons of the AER for requiring the information described in the instrument to be—
(i)
provided to the AER;
(ii)
prepared, maintained or kept in the particular manner and form specified in the instrument; and
(d)
in the case of an instrument requiring information to be provided to the AER, must specify when the information must be provided.
(2)
In the case of a regulatory information notice, the notice must name the regulated network service provider or the related provider to whom it applies.
(3)
In the case of a general regulatory information order, the order must specify the class of regulated network service provider, or related provider, to whom the order applies.
28L—Further provision about the information that may be specified in a regulatory information instrument
Without limiting section 28K(1)(a), the information that may be required to be provided to the AER, or to be prepared, maintained or kept, may include—
(a)
historic, current and forecast information (including financial information);
(b)
information that is or may be derived from other information in the possession or control of the service provider or the related provider to whom the instrument applies;
(c)
information to enable the AER to verify whether the regulated network service provider to whom the instrument applies is or has been complying with a requirement under the Rules relating to—
(i)
the operational and structural separation of a regulated network service provider's business; or
(ii)
arrangements between a regulated network service provider and an associate that provides electricity network services;
(d)
information to enable the AER to verify compliance with any requirements for the allocation of costs between electricity services under—
(i)
the Rules; or
(ii)
a network revenue or pricing determination.
28M—Further provision about manner in which information must be provided to AER or kept
Without limiting section 28K(1)(b), a regulatory information instrument may specify the information described in the instrument—
(a)
be provided to the AER, or prepared, maintained or kept, on an annual basis or some other basis, including on the occurrence of a specified event or a state of affairs;
(b)
be provided to the AER, or prepared, maintained or kept, in accordance with specified Rules;
(c)
be provided to the AER, or prepared, maintained or kept, in accordance with any document, code, standard, rule, specification or method formulated, issued, prescribed or published by the AER or any person, authority or body whether—
(i)
wholly or partially or as amended by the instrument; or
(ii)
as formulated, issued, prescribed or published at the time the instrument is served or published or at any time before the instrument is served or published; or
(iii)
as amended from time to time;
Example—
The AER may require a service provider to provide information in a form and manner that complies with relevant accounting standards.
(d)
be verified by way of statutory declaration by an officer of the regulated network service provider, or of a related provider, to whom the instrument applies;
(e)
be audited—
(i)
by a class of person specified in the instrument before it is provided to the AER; and
(ii)
at the expense of the regulated network service provider or related provider to whom the instrument applies.
Subdivision 4—Compliance with regulatory information instruments
28N—Compliance with regulatory information notice that is served
On being served a regulatory information notice, a person named in the notice must comply with the notice.
28O—Compliance with general regulatory information order
(1)
On publication of a general regulatory information order in accordance with section 28I(1), a person who is a member of the class of person to which a general regulatory information order applies must comply with the order.
(2)
Subsection (1) does not apply to a person who has been given an exemption under section 28P.
28P—Exemptions from compliance with general regulatory information order
(1)
The AER may exempt a person, or a class of person, from complying with section 28O—
(a)
unconditionally or on specified conditions; or
(b)
wholly or to the extent as is specified in the exemption.
(2)
An exemption under this section must be in writing.
28Q—Assumptions where there is non-compliance with regulatory information instrument
(1)
This section applies if—
(a)
under a regulatory information instrument the AER—
(i)
requires a regulated network service provider to provide information to the AER for the purpose of enabling the AER to make an AER economic regulatory decision relating to the regulated network service provider; or
(ii)
requires a related provider to provide information to the AER that is relevant to the making of an AER economic regulatory decision relating to a regulated network service provider; and
(b)
the regulated network service provider or related provider—
(i)
does not provide the information to the AER in accordance with the applicable regulatory information instrument; or
(ii)
provides information that is insufficient (when compared to what was requested under the applicable regulatory information instrument).
(2)
Without limiting sections 28N and 28O and despite anything to the contrary in this Law or the Rules, the AER—
(a)
may make the AER economic regulatory decision on the basis of the information the AER has at the time it makes that decision; and
(b)
in making that decision, may make reasonable assumptions (including assumptions adverse to the interests of the regulated network service provider) in respect of the matters the information required under the regulatory information instrument would have addressed had that information been provided as required.
Subdivision 5—General
28R—Providing to AER false and misleading information
A person must not, in purported compliance with a regulatory information instrument requiring the person to provide information to the AER, provide information to the AER that the person knows is false or misleading in a material particular.
Maximum penalty:
(a)
in the case of a natural person—$2 000;
(b)
in the case of a body corporate—$10 000.
28S—Person cannot rely on duty of confidence to avoid compliance with regulatory information instrument
(1)
A person must not refuse to comply with a regulatory information instrument on the ground of any duty of confidence.
(2)
A person incurs, by complying with a regulatory information instrument, no liability for breach of contract, breach of confidence or any other civil wrong.
28T—Legal professional privilege not affected
A regulatory information instrument, and sections 28N and 28O, are not to be taken as requiring a person to—
(a)
provide to the AER information that is the subject of legal professional privilege; or
(b)
produce a document to the AER the production of which would disclose information that is the subject of legal professional privilege.
28U—Protection against self-incrimination
(1)
It is a reasonable excuse for a natural person to whom section 28N applies not to comply with a regulatory information notice served on the person requiring the person to provide information to the AER if to do so might tend to incriminate the person, or make the person liable to a criminal penalty, under a law of this jurisdiction or another jurisdiction in Australia (whether or not that other jurisdiction is a participating jurisdiction).
(2)
It is a reasonable excuse for a natural person to whom section 28O applies not to comply with a general regulatory information order made requiring the person to provide information to the AER if to do so might tend to incriminate the person, or make the person liable to a criminal penalty, under a law of this jurisdiction or another jurisdiction in Australia (whether or not that other jurisdiction is a participating jurisdiction).
Division 5—Network service provider performance reports
28V—Preparation of network service provider performance reports
(1)
Subject to this section, the AER may prepare a report on the financial performance or operational performance of 1 or more network service providers in providing electricity network services.
Note—
The AER may only prepare a report under subsection (1) if the preparation of the report will or is likely to contribute to the achievement of the national electricity objective: see section 16.
(2)
A report prepared under this section may—
(a)
deal with the financial or operational performance of the network service provider in relation to—
(i)
complying with (as the case requires) distribution service standards or transmission service standards; and
(ii)
standards relating to the provision of electricity network services to network service users or end users; and
(iii)
the profitability of network service providers in providing electricity network services; and
(b)
if the AER considers it appropriate, deal with the performance of the network service provider in relation to other matters or things if that performance is directly related to the performance or exercise by the AER of an AER economic regulatory function or power.
(3)
A report prepared under this section may include—
(a)
information provided to the AER by a person in compliance with a regulatory information instrument; and
(b)
in the case of a report dealing with the financial performance of 1 or more network service providers, a comparison of the profitability of the network service providers to which the report relates from the provision of electricity network services by them.
(4)
Before preparing a report under this section, the AER must, in accordance with the Rules, consult with the persons or bodies specified by the Rules.
(5)
The AER may publish a report prepared under this section on its website.
Division 6—Disclosure of confidential information held by AER
28W—Authorised disclosure of information given to the AER in confidence
The AER is authorised to disclose information given to it in confidence in, or in connection with, the performance or exercise of its functions or powers under this Law or the Rules subject to and in accordance with—
(a)
this Division; or
(b)
section 146.
Note—
See also section 29 of this Law and section 44AAF of the Trade Practices Act 1974 of the Commonwealth.
28X—Disclosure with prior written consent is authorised
The AER is authorised to disclose information given to it in confidence if the AER has the written consent to do so of—
(a)
the person who gave the information; or
(b)
the person from whom the person referred to in paragraph (a) received that information.
28Y—Disclosure for purposes of court and tribunal proceedings and to accord natural justice
The AER is authorised to disclose information given to it in confidence—
(a)
for the purposes of civil or criminal proceedings; or
(b)
for the purposes of a proceeding before the Tribunal or a tribunal established by or under a law of this jurisdiction or another participating jurisdiction; or
(c)
for the purposes of according natural justice to a person affected by a decision (however described) of the AER under this Law or the Rules.
28Z—Disclosure of information given to the AER with confidential information omitted
(1)
This section applies if—
(a)
in compliance with this Law or the Rules or voluntarily, a person gives the AER information in confidence; and
(b)
that information is contained in a document with other information.
(2)
The AER may disclose the document with the information given in confidence omitted.
(3)
The AER must include a note at the place in the document from which the information given in confidence is omitted to the effect that that information has been omitted from the document.
28ZA—Disclosure of information given in confidence does not identify anyone
The AER is authorised to disclose the information given to it in confidence, in compliance with this Law or the Rules or voluntarily, if—
(a)
it does not disclose any elements of the information that could lead to the identification of the person to whom that information relates; or
(b)
the manner in which it discloses the information does not identify the person to whom that information relates.
Example—
Information disclosed under this section may be combined or arranged with other information provided that the manner in which that information is combined or arranged will not lead to the identification of the person to whom the information relates.
28ZB—Disclosure of confidential information authorised if detriment does not outweigh public benefit
(1)
Despite section 28Z or 28ZA but subject to this section, the AER is authorised to disclose information given to it in confidence after the restricted period if the AER is of the opinion—
(a)
that the disclosure of the information would not cause detriment to the person who has given it or to the person from whom that person received it; or
(b)
that, although the disclosure of the information would cause detriment to such a person, the public benefit in disclosing it outweighs that detriment.
(2)
Before disclosing the information, the AER must give the person who gave the information—
(a)
a written notice (an initial disclosure notice) stating—
(i)
that the AER wishes to disclose the information, specifying the nature of the intended disclosure; and
(ii)
that the AER is of the opinion required by subsection (1); and
(iii)
that the person, within the period specified in the notice, may make representations to the AER not to disclose the information; and
(b)
the AER's decision, in writing, setting out the reasons why the AER—
(i)
wishes to make the disclosure; and
(ii)
is of the opinion required by subsection (1).
(3)
If the AER is aware that the person who gave the information in turn received the information from another person and is aware of that other person's identity and address, the AER must, before disclosing the information give that other person—

(4)
Section 12(3)(a)—delete "NECA,"
(5)
Section 12(3)(b)—delete "NECA,"
(6)
Section 12(4), definition of NECA—delete the definition

91—Insertion of section 15

After section 14 insert:
15—Conferral of functions and powers on Commonwealth bodies
(1)
Clause 2 of Schedule 2 of the National Electricity Law will have effect in relation to the operation of any provision of this Act, or any regulation made under this Act, as if the provision or regulation formed part of the National Electricity Law.
(2)
Subsection (1) does not limit the effect that a provision or regulation would validly have apart from the subsection.

Part 4—Amendment of National Electricity (South Australia) Act 1996 to address local issues

92—Insertion of Part 6

After Part 5 insert:
Part 6—Transfer of economic regulation of electricity distribution to AER—local provisions
16—Interpretation
(1)
In this Part, unless the contrary intention appears—
EPO means the Electricity Pricing Order made by the Treasurer under section 35B of the Electricity Act 1996 on 11 October 1999, as varied from time to time under that Act;
ESCoSA means the Essential Services Commission established under the Essential Services Commission Act 2002;
ESCoSA distribution determination means the 2005-2010 Electricity Distribution Price Determination made by ESCoSA in April 2005, as varied from time to time;
ETSA Utilities has the same meaning as in the EPO;
National Electricity Law means the National Electricity Law set out in the Schedule to this Act as in force from time to time;
NEC means the National Electricity Code;
network services has the same meaning as in the Electricity Act 1996;
relevant Amendment Act means the National Electricity (South Australia) (National Electricity Law—Miscellaneous Amendments) Amendment Act 2007;
relevant day means the day on which the relevant Amendment Act comes into operation;
small customer has the same meaning as in the Electricity Act 1996.
(2)
A reference in this Part to the National Electricity Law includes a reference to the old National Electricity Law.
17—Provision of information and assistance by ESCoSA
(1)
Despite any other Act or law, ESCoSA is authorised, on its own initiative or at the request of the AER—
(a)
to provide the AER with such information (including information given in confidence) in the possession or control of ESCoSA that is reasonably required by the AER for the purposes of this Part or the National Electricity Law; and
(b)
to provide the AER with such other assistance as is reasonably required by the AER to perform or exercise a function or power under this Part or the National Electricity Law.
(2)
Despite any other Act or law, ESCoSA may authorise the AER to disclose information provided under subsection (1) even if the information was given to ESCoSA in confidence.
(3)
Nothing done, or authorised to be done, by ESCoSA in acting under subsection (1) or (2)—
(a)
constitutes a breach of, or default under, an Act or other law; or
(b)
constitutes a breach of, or default under, a contract, agreement, understanding or undertaking; or
(c)
constitutes a breach of a duty of confidence (whether arising by contract, in equity or by custom) or in any other way; or
(d)
constitutes a civil or criminal wrong; or
(e)
terminates an agreement or obligation or fulfils any condition that allows a person to terminate an agreement or obligation, or gives rise to any other right or remedy; or
(f)
releases a surety or any other obligee wholly or in part from an obligation.
18—Price determinations
(1)
The ESCoSA distribution determination continues in operation for the purposes of the law of the State despite the amendments to the National Electricity (South Australia) Law effected by the relevant Amendment Act until the end of the regulatory period specified by that determination.
(2)
ESCoSA—
(a)
will continue to be responsible for the operation, administration and enforcement of the ESCoSA distribution determination; and
(b)
will cease to be responsible to make a further distribution determination in respect of ETSA Utilities from the relevant day.
(3)
In connection with the operation of subsections (1) and (2)(a), the National Electricity Law, the Rules, the NEC and the EPO, as in force from time to time before the commencement of this subsection, will be taken to continue to apply with respect to the ESCoSA distribution determination (and the amendments effected by the relevant Amendment Act will be disregarded).
(4)
On or after the relevant day, the AER must, when acting under the National Electricity (South Australia) Law—
(a)
comply with the requirements under subsection (5); and
(b)
give effect to the provisions of the EPO (as in force from time to time).
(5)
The requirements under this subsection are as follows:
(a)
the AER must, in making a distribution determination or approving a pricing proposal for the purposes of the Rules, ensure that the prices charged to small customers for network services in relation to distribution services in the State are not subject to variation on the basis of location;
(b)
the AER must only approve a distribution loss factor that has been calculated for the purposes of the Rules by ETSA Utilities if the distribution loss factor—
(i)
has been calculated on a State‑wide basis by reference to voltage level and proximity of a customer's metering point to a transformer; and
(ii)
is not related to the relative length of a distribution line involved in supplying electricity to the customer;
(c)
the AER must determine any transmission loss factor using a single virtual transmission node for small customers that has been calculated for the purposes of the Rules by the holder of a licence under the Electricity Act 1996 authorising the operation of a transmission network on a State‑wide basis;
(d)
the AER must ensure that any method of allocation agreed with ETSA Utilities in relation to transmission use of system costs paid by ETSA Utilities requires the allocation of those costs to ETSA Utilities' small customers on a State‑wide basis that ensures that the rates charged with respect to all such small customers are not subject to variation on the basis of location.
(6)
In connection with the operation of subsections (4) and (5)—
(a)
the EPO will be taken to continue to apply as if the AER were the Regulator under the EPO; and
(b)
for the avoidance of doubt, in the event of an inconsistency between the operation or effect of subsection (5) and the EPO, subsection (5) prevails.
(7)
Subsections (4), (5) and (6) apply until the EPO is varied or revoked so that it no longer applies to distribution determinations.
(8)
This section applies despite any provision to the contrary in the National Electricity Law or the Rules (and, to the extent of any inconsistency between such a provision and the operation or effect of this section, this section prevails).