National Energy Retail Law (NSW) (NSW)

Note—

The National Energy Retail Law is applied and modified as a law of NSW by the NSW National Energy Retail Law (Adoption) Act 2012. This version is the Law as it applies in NSW.

Editorial note—

The National Energy Retail Law is applied (with changes and additions) as a law of NSW by the NSW National Energy Retail Law (Adoption) Act 2012. This version is the Law as it applies in NSW.

Part 1PreliminaryDivision 1Citation and interpretation1Citation

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

2Interpretation(1)

In this Law—

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

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

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

AER Exempt Selling Guidelines—see section 118;

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

• (a)

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

• (b)

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

• (c)

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

• (d)

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

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

• (a)

  the AER performance regime under Division 2 of Part 12;

• (b)

  a retailer authorisation under Part 5;

• (c)

  an AER exempt selling regulatory function or power;

• (d)

  the AER Retail Pricing Information Guidelines and price comparator;

• (e)

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

• (f)

  the RoLR scheme under Part 6;

• (g)

  the AER trial waiver functions under Part 5A;

AER Retail Pricing Information Guidelines—see section 61;

AER Retailer Authorisation Guidelines—see section 117;

annual turnover has the same meaning as in section 2(1) of Schedule 2 to the Competition and Consumer Act 2010 of the Commonwealth;

application Act means an Act of a participating jurisdiction that applies, as a law of that jurisdiction, this Law or any part of this Law;

associate of a retailer or distributor includes—

• (a)

  an employee or agent of the retailer or distributor; and

• (b)

  a person contracted by the retailer or distributor; and

• (c)

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

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

business day means a day that is not—

• (a)

  a Saturday or Sunday; or

• (b)

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

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

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

• (a)

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

• (b)

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

Centrepay means the voluntary direct deduction facility operated by Centrelink;

civil monetary liability means a liability for damages, compensation or any other monetary amount that can be recovered by way of civil proceedings, but does not include—

• (a)

  a liability for a civil penalty; or

• (b)

  an infringement penalty under provisions applied by this Law; or

• (c)

  a liability for the costs of a proceeding;

civil penalty—see section 4A;

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

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

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

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

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

Court means—

• (a)

  where this Law applies as a law of the Commonwealth, the Federal Court;

• (b)

  where this Law applies as a law of a participating jurisdiction that is a State or a Territory, the Supreme Court of that jurisdiction;

covered gas has the same meaning as in the NGL;

customer—see section 5;

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

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

• (a)

  a service relating to a new connection for the premises;

• (b)

  a service relating to a connection alteration for the premises;

• (c)

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

• (d)

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

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

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

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

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

de-energisation or disconnection of premises means—

• (a)

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

• (b)

  in the case of gas—the closing of a connection,

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

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

deemed customer retail arrangement—see section 54;

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

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

designated retailer for a small customer’s premises means—

• (a)

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

• (b)

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

disconnection—see the definition of de-energisation;

distribution system means—

• (a)

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

• (b)

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

• (c)

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

distributor means—

• (a)

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

• (b)

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

• (c)

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

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

• (a)

  the frequency and duration of supply interruptions;

• (b)

  the timely notice of planned interruptions;

• (c)

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

• (d)

  wrongful de-energisation;

• (e)

  timeframes for de-energisation and re-energisation;

• (f)

  being on time for appointments;

• (g)

  response times for fault calls;

• (h)

  the provision of fault information;

energisation of premises means—

• (a)

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

• (b)

  in the case of gas—the opening of a connection,

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

energy means electricity or gas or both;

energy laws includes—

• (a)

  national energy legislation; and

• (b)

  jurisdictional energy legislation; and

• (c)

  the Rules, the NER and the NGR; and

• (d)

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

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

• (a)

  customer connection services; or

• (b)

  customer retail services; or

• (c)

  a supplier or prospective supplier of customer connection services or customer retail services,

to a small customer;

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

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

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

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

explicit informed consent—see section 39;

financially responsible retailer for premises means—

• (a)

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

• (b)

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

gas means the following—

• (a)

  natural gas;

• (b)

  a natural gas equivalent;

• (c)

  a prescribed covered gas;

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

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

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

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

innovative trial principles—see section 13A;

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

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

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

large customer—see section 5;

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

local area retailer means a retailer nominated under section 11;

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

Note—

See also subsection (6).

lower consumption threshold—see sections 5 and 6;

Note—

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

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

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

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

MCE means the group of Ministers (constituting or forming part of a Ministerial Council, Standing Council of Ministers or similar body (however described)) responsible for energy matters at a national level comprising 9 Ministers as follows—

• (a)

  1 Minister from the Commonwealth;

• (b)

  1 Minister from each State (totalling 6 Ministers);

• (c)

  1 Minister from each Territory (totalling 2 Ministers),

acting in accordance with its own procedures;

MCE directed review means a review conducted by the AEMC under Division 4 of Part 9;

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

meter identifier means—

• (a)

  in the case of electricity—the NMI; or

• (b)

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

Minister of a participating jurisdiction—see section 10;

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

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

national energy legislation means—

• (a)

  the national energy retail legislation; and

• (b)

  the national electricity legislation as defined in the NEL; and

• (c)

  the national gas legislation as defined in the NGL;

national energy retail legislation means—

• (a)

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

• (b)

  the National Regulations; and

• (c)

  the application Act of a participating jurisdiction; and

• (d)

  the local instruments of a participating jurisdiction;

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

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

National Energy Retail Rules or Rules means—

• (a)

  the initial National Energy Retail Rules; and

• (ab)

  Rules made under Part 10 Division 3 Subdivision 2; and

• (b)

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

  • (i)

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

  • (ii)

    Rules made by it;

natural gas has the same meaning as in the NGL;

natural gas equivalent—see section 2A;

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

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

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

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

• (a)

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

• (b)

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

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

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

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

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

nominated distributor—see section 12;

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

Note—

This definition is an additional New South Wales provision.

offence provision means a provision of this Law the breach or contravention of which by a person exposes that person to a finding of guilt by a court;

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

payment plan means a plan for—

• (a)

  a hardship customer; or

• (b)

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

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

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

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

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

price comparator—see section 62;

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

reconnection—see the definition of re-energisation;

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

regulated entity means—

• (a)

  a retailer; or

• (b)

  a distributor; or

• (c)

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

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

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

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

Retail Market Procedures means—

• (a)

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

• (b)

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

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

retailer authorisation means a retailer authorisation issued under Part 5;

revocation process—see section 120;

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

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

small customer—see section 5;

small market offer customer

Note—

This definition is not applicable in New South Wales.

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

standard complaints and dispute resolution procedures—see section 81;

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

standing offer—see section 22;

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

Territory means the Australian Capital Territory or the Northern Territory.

this jurisdiction—see the definition of that term in the application Act of each participating jurisdiction;

trial project means a project—

• (a)

  that—

  • (i)

    the AER is satisfied is genuinely innovative taking into account the innovative trial principles (in relation to a trial waiver for a trial project); or

  • (ii)

    the AEMC is satisfied is genuinely innovative taking into account the innovative trial principles (in relation to a trial Rule for the purposes of a trial project); and

• (b)

  tests an approach in relation to customer connection services or customer retail services;

trial Rule—see section 235;

trial waiver—see section 121C;

Tribunal means the Australian Competition Tribunal referred to in the Competition and Consumer Act 2010 of the Commonwealth and includes a member of the Tribunal or a Division of the Tribunal performing functions of the Tribunal;

upper consumption threshold—see sections 5 and 6;

Note—

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

(2)

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

(3)

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

(4)

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

(5)

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

(6)

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

(6A)

(Repealed)

(7)

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

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

2ANatural gas equivalent(1)

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

• (a)

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

• (b)

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

(2)

The following are not natural gas equivalents—

• (a)

  natural gas;

• (b)

  a prescribed covered gas.

(3)

In this section—

existing distribution system means a distribution system that—

• (a)

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

• (b)

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

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

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

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

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

Note—

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

3AApplication to prescribed covered gas

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

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

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

3AZApplication of Law to sale of electricity

Insofar as this Law applies to electricity, this Law, subject to the NSW regulations, applies only in relation to the sale of electricity to customers whose premises are connected, or are to be connected, to the national electricity system within the meaning of the NEL.

Note—

This section is an additional New South Wales provision.

s 3AZ (previously s 3A): Renumbered 2024 No 47, Sch 2.11.

3BExemptions from Law(1)

The NSW regulations may exempt, or provide for the exemption of, any area or person from any or all of the provisions of this Law.

(2)

An exemption under this section may be made subject to conditions.

Note—

This section is an additional New South Wales provision.

4Meaning of civil penalty provision and conduct provision(1)

A civil penalty provision is—

• (a)

  a provision of this Law specified in the Table at the foot of this subsection; or

• (b)

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

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

(2)

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

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

4ACivil penalty amounts for breaches of civil penalty provisions(1)

Subject to this section, the civil penalty for a breach of a civil penalty provision is—

• (a)

  in the case of a breach of a civil penalty provision, other than a provision prescribed under paragraph (b) or (c)—

  • (i)

    if the breach is by a natural person—

    • (A)

      an amount not exceeding $33 900; plus

    • (B)

      an amount not exceeding $3 390 for every day during which the breach continues;

  • (ii)

    if the breach is by a body corporate—

    • (A)

      an amount not exceeding $170 000; plus

    • (B)

      an amount not exceeding $17 000 for every day during which the breach continues; or

• (b)

  in the case of a breach of a civil penalty provision prescribed by the National Regulations for the purposes of this paragraph—

  • (i)

    if the breach is by a natural person—

    • (A)

      an amount not exceeding $287 000; plus

    • (B)

      an amount not exceeding $14 400 for every day during which the breach continues;

  • (ii)

    if the breach is by a body corporate—

    • (A)

      an amount not exceeding $1 435 000; plus

    • (B)

      an amount not exceeding $71 800 for every day during which the breach continues; or

• (c)

  in the case of a breach of a civil penalty provision prescribed by the National Regulations for the purposes of this paragraph—

  • (i)

    if the breach is by a natural person—an amount not exceeding $500 000;

  • (ii)

    if the breach is by a body corporate—an amount not exceeding the greater of the following—

    • (A)

      $10 000 000;

    • (B)

      if the Court can determine the value of any benefit reasonably attributable to the breach of the civil penalty provision that the body corporate, and any body corporate related to the body corporate, has obtained, directly or indirectly—3 times the value of that benefit;

    • (C)

      if the Court cannot determine the value of the benefit—10% of the annual turnover of the body corporate during the 12-month period ending at the end of the month in which the body corporate breached, or began breaching, the civil penalty provision.

Note—

See section 300A, which provides for the amounts specified in this subsection to be adjusted every 3 years to reflect movements in the consumer price index. The adjusted amounts are published on the AER’s website.

(2)

Subsection (1)(c)(ii)(B) or (C) will only apply in a particular case if the AER, in applying for an order under section 291(2)(a), requests that those provisions be applied in that particular case.

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

5Meaning of customer and associated terms(1)

A customer is a person—

• (a)

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

• (b)

  who proposes to purchase energy for premises from a retailer.

(2)

A small customer is a customer—

• (a)

  who is a residential customer; or

• (b)

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

(3)

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

(4)Note—

This subsection is not applicable in New South Wales.

6Provisions relating to consumption thresholds for business customers(1)

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

(2)

The NSW regulations may—

• (a)

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

• (b)

  prescribe a procedure for reviewing consumption thresholds so determined.

(3)

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

(4)

Without limitation—

• (a)

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

• (b)

  Rules made for the purposes of subsection (3),

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

7Classification and reclassification of customers

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

• (a)

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

• (b)

  whether a business customer is a small customer or a large customer; or

• (c)

  whether a business customer is a small market offer customer.

7ARelated bodies corporate

For the purposes of this Law, 2 or more bodies corporate are related to each other if they are related bodies corporate within the meaning of the Corporations Act 2001 of the Commonwealth.

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

8Interpretation generally(1)

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

(2)

For that purpose—

• (a)

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

• (b)

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

• (c)

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

Note—

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

8ASavings and transitionals

Schedule 1 has effect.

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

Division 2Matters relating to participating jurisdictions9Participating jurisdictions(1)

The following jurisdictions are participating jurisdictions for the purposes of this Law—

• (a)

  the State of South Australia; and

• (b)

  the Commonwealth, a Territory or a State (other than South Australia) if there is in force, as part of the law of that jurisdiction, a law that applies this Law or any part of this Law (whether by a law that corresponds to Part 2 of the National Energy Retail Law (South Australia) Act 2011 of South Australia or by some other law).

(2)

If a law of a participating jurisdiction referred to in subsection (1)(b) ceases to be in force, the jurisdiction ceases to be a participating jurisdiction.

s 9: Subst 2021 No 3, sec 26.

10Ministers of participating jurisdictions

The Ministers of the participating jurisdictions are—

• (a)

  the South Australian Minister; and

• (b)

  the Ministers of the Crown in right of the other participating jurisdictions administering the laws of those jurisdictions that apply this Law or any part of this Law (whether by a law that corresponds to Part 2 of the National Energy Retail Law (South Australia) Act 2011 of South Australia or by some other law).

• (c)

  (Repealed)

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

11Local area retailers(1)

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

(2)

One or more retailers may be nominated for a jurisdiction.

(3)

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

• (a)

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

• (b)

  specified premises or a specified class of premises;

• (c)

  specified customers or a specified class of customers.

(4)

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

• (a)

  electricity;

• (b)

  natural gas and natural gas equivalents;

• (c)

  1 or more types of prescribed covered gas.

s 11: Am 2023 No 36, sec 75.

12Nominated distributors(1)

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

(2)

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

• (a)

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

• (b)

  the whole or a specified part of a distribution system that is owned, controlled or operated by the entity.

(3)

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

Division 3National energy retail objective and policy principles13National energy retail objective

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

• (a)

  price, quality, safety, reliability and security of supply of energy; and

• (b)

  the achievement of targets set by a participating jurisdiction—

  • (i)

    for reducing Australia’s greenhouse gas emissions; or

  • (ii)

    that are likely to contribute to reducing Australia’s greenhouse gas emissions.

  Note—

  The AEMC must publish targets in a targets statement: see section 224A.

s 13: Am 2023 No 26, sec 9.

13AANational Regulations may prescribe matters for national energy retail objective

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

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

13AInnovative trial principles

The following principles (the innovative trial principles) must be taken into account in determining whether a trial project is genuinely innovative in connection with granting a trial waiver or making a trial Rule relating to a trial project—

• (a)

  whether the trial project is focused on developing new or materially improved customer connection services or customer retail services;

• (b)

  whether the trial project is likely to contribute to the achievement of the national energy retail objective;

• (c)

  whether the trial project is able to demonstrate a reasonable prospect of giving rise to materially improved services and outcomes for consumers of energy;

• (d)

  whether the trial project maintains adequate consumer protections, including whether the trial project may involve risks to consumers and (if so), how those risks might be mitigated;

• (e)

  whether the trial project is unable to proceed under the existing regulatory framework;

• (f)

  whether the trial project has moved beyond research and development stages but is not yet established, or of sufficient maturity, size or otherwise commercially ready, to attract investment;

• (g)

  whether the trial project may negatively impact on AEMO’s operation of national energy systems and national energy markets or AEMO’s facilitation of customer connection services and customer retail services and, if there are impacts, how those impacts can be mitigated;

• (h)

  whether the trial project may impact on competition in a competitive sector of a national energy market;

• (ha)

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

• (i)

  any other principle prescribed by the National Regulations.

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

14MCE statements of policy principles(1)

Subject to this section, the MCE may issue a statement of policy principles in relation to any matters that are relevant to the performance and exercise by the AEMC of its functions and powers in—

• (a)

  making a Rule; or

• (b)

  conducting a review under section 232.

(2)

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

(3)

As soon as practicable after issuing a statement of policy principles, the MCE must give a copy of the statement to the AEMC.

(4)

The AEMC must publish the statement in the South Australian Government Gazette and on its website as soon as practicable after it is given a copy of the statement.

Division 4Operation and effect of National Energy Retail Rules15Rules to have force of law

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

Division 5Application of this Law and the Rules to forms of energy16Application of Law and Rules to energy(1)

This Law and the Rules apply to—

• (a)

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

  • (i)

    electricity;

  • (ii)

    natural gas or natural gas equivalents, or both;

  • (iii)

    1 or more types of prescribed covered gas; and

• (b)

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

  • (i)

    electricity;

  • (ii)

    natural gas or natural gas equivalents, or both;

  • (iii)

    1 or more types of prescribed covered gas; and

• (c)

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

  • (i)

    electricity;

  • (ii)

    natural gas or natural gas equivalents, or both;

  • (iii)

    1 or more types of prescribed covered gas.

(2)

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

(3)

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

s 16: Am 2023 No 36, sec 77.

Division 6Miscellaneous17Extraterritorial operation of Law

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

• (a)

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

• (b)

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

• (c)

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

18Law binds the State(1)

This Law binds the State.

(2)

In this section—

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

• (a)

  the Government of this jurisdiction; and

• (b)

  a Minister of the Crown in right of this jurisdiction; and

• (c)

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

Part 2Relationship between retailers and small customersDivision 1Preliminary19Application of this Part(1)

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

(2)

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

(3)

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

Division 2Customer retail contracts generally20Kinds of customer retail contracts(1)

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

• (a)

  standard retail contracts;

• (b)

  market retail contracts.

(2)

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

Note—

This subsection is a civil penalty provision.

(3)

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

(4)

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

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

Division 3Standing offers and standard retail contracts for small customers21Model terms and conditions

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

22Obligation to make offer to small customers(1)

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

• (a)

  at the standing offer prices; and

• (b)

  under the retailer’s form of standard retail contract.

Note—

This subsection is a civil penalty provision.

(1a)

If—

• (a)

  a small customer has an interval meter; and

• (b)

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

then a retailer’s standing offer must include—

• (c)

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

• (d)

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

(1b)

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

(2)

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

(3)

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

Note—

This subsection is a civil penalty provision.

(4)

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

(5)

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

(6)

In this section—

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

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

Note—

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

s 22: Am 2013 No 69, sec 7.

23Standing offer prices(1)

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

Notes—

A standing offer price may be a regulated price under jurisdictional energy legislation.

This subsection is a civil penalty provision.

(2)

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

• (a)

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

• (b)

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

(3)

A retailer must—

• (a)

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

• (b)

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

  • (i)

    there has been a variation; and

  • (ii)

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

• (c)

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

(4)

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

(5)

A variation of the standing offer prices takes effect—

• (a)

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

• (b)

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

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

Note—

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

(6)

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

(7)

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

24Presentation of standing offer prices(1)

A retailer must—

• (a)

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

• (b)

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

(2)

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

Note—

See section 61 for the AER Retail Pricing Information Guidelines.

25Adoption of form of standard retail contract(1)

A retailer must adopt a form of standard retail contract and publish it on the retailer’s website.

Note—

This subsection is a civil penalty provision.

(2)

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

(3)

A retailer’s form of standard retail contract—

• (a)

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

• (b)

  if there are any required alterations—must include those required alterations.

(4)

Permitted alterations are—

• (a)

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

• (b)

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

• (c)

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

(5)

Required alterations are—

• (a)

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

• (b)

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

(6)

In this section—

alterations includes omissions and additions.

26Formation of standard retail contract(1)

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

• (a)

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

• (b)

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

(2)

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

27Obligation to comply with standard retail contract

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

Note—

This section is a civil penalty provision.

28Variation of standard retail contract(1)

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

(2)

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

(3)

Permitted alterations are—

• (a)

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

• (b)

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

• (c)

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

(4)

Required alterations are—

• (a)

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

• (b)

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

• (c)

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

(5)

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

(6)

In this section—

alterations includes omissions and additions.

29Standard retail contract to be consistent with model terms and conditions(1)

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

(2)

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

30Duration of standard retail contract

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

31Note—

This section is not applicable in New South Wales.

32Rules

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

• (a)

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

• (b)

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

• (c)

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

• (d)

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

Division 4Market retail contracts for small customers33Formation of market retail contracts

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

• (a)

  customer retail services; and

• (b)

  any other services,

as agreed between the small customer and the retailer.

34Minimum requirements for market retail contracts(1)

The Rules may set out—

• (a)

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

• (b)

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

(2)

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

(3)

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

(4)

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

(5)

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

35Variation of market retail contract

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

36Market retail contract to be consistent with minimum requirements of the Rules(1)

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

(2)

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

37Presentation of market offer prices(1)

A retailer must—

• (a)

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

• (b)

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

(2)

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

Note—

See section 61 for the AER Retail Pricing Information Guidelines.

Divisions 4A, 4B37AA–37E

(Repealed)

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

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

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

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

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

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

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

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

Division 5Explicit informed consent38Requirement for explicit informed consent for certain transactions

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

• (a)

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

• (b)

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

• (c)

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

• (d)

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

Notes—

See section 41 for the consequences of not obtaining explicit informed consent as required.

This section is a civil penalty provision.

39Nature of explicit informed consent(1)

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

• (a)

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

• (b)

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

• (c)

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

(2)

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

• (a)

  in writing signed by the customer; or

• (b)

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

• (c)

  by electronic communication generated by the customer.

40Record of explicit informed consent(1)

A retailer must—

• (a)

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

• (b)

  retain the record for at least 2 years.

(2)

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

• (a)

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

• (b)

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

(3)

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

41No or defective explicit informed consent(1)

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

(2)

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

• (a)

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

• (b)

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

• (c)

  the retailer—

  • (i)

    admits that the consent was not obtained; or

  • (ii)

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

(3)

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

(4)

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

(5)

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

• (a)

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

• (b)

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

  • (i)

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

  • (ii)

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

  • (iii)

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

• (c)

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

• (d)

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

42Rules

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

Division 6Customer hardship43Customer hardship policies(1)

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

(2)

A retailer must—

• (a)

  within 3 months of being granted a retailer authorisation—

  • (i)

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

  • (ii)

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

• (b)

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

• (c)

  maintain and implement the policy.

Note—

This subsection is a civil penalty provision.

(3)

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

• (a)

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

• (b)

  the retailer must—

  • (i)

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

  • (ii)

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

  • (iii)

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

  • (iv)

    maintain and implement the policy.

Note—

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

(4)

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

(5)

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

44Minimum requirements for customer hardship policy

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

• (a)

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

• (b)

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

• (c)

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

• (d)

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

• (e)

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

• (f)

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

• (g)

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

• (h)

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

• (i)

  any other matters required by the Rules.

45Approval of customer hardship policy or variation(1)

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

• (a)

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

• (b)

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

(2)

If it is not so satisfied, the AER may—

• (a)

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

• (b)

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

(3)

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

• (a)

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

• (b)

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

• (c)

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

• (d)

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

46Obligation of retailer to communicate customer hardship policy

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

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

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

48Consistency of market retail contract with hardship policy(1)

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

(2)

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

(3)

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

49Rules(1)

The Rules may make provision for or with respect to—

• (a)

  hardship customers; and

• (b)

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

(2)

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

Division 7Payment plans50Payment plans(1)

A retailer must offer and apply payment plans for—

• (a)

  hardship customers; and

• (b)

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

Note—

This subsection is a civil penalty provision.

(2)

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

51Debt recovery

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

• (a)

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

• (b)

  the retailer has failed to comply with the requirements of—

  • (i)

    its customer hardship policy in relation to that customer; or

  • (ii)

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

52Rules

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

Division 8Energy marketingNote—

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

53Energy Marketing Rules(1)

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

(2)

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

Note—

This subsection is a civil penalty provision.

(3)

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

Division 9Deemed customer retail arrangements54Deemed customer retail arrangement for new or continuing customer without customer retail contract(1)

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

• (a)

  a move-in customer; or

• (b)

  a carry-over customer.

(2)

The deemed customer retail arrangement comes into operation when—

• (a)

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

• (b)

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

(3)

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

(4)

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

(5)

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

• (a)

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

• (b)

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

• (c)

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

(6)

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

(6A)

(Repealed)

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

55Terms and conditions of deemed customer retail arrangements(1)

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

(2)

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

(2A)

(Repealed)

(3)

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

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

Division 10Prepayment meter systems56Use of prepayment meter systems only in jurisdictions where permitted(1)

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

(2)

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

57Contractual arrangements for use of prepayment meter systems(1)

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

(2)

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

Note—

This section is a civil penalty provision.

58Use of prepayment meter systems to comply with energy laws(1)

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

(2)

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

• (a)

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

• (b)

  prepayment meter market retail contracts set out in the Rules.

59Persons on life support equipment(1)

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

Note—

This subsection is a civil penalty provision.

(2)

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

• (a)

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

• (b)

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

• (c)

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

(3)

In this section—

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

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

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

60Rules

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

Division 11AER Retail Pricing Information Guidelines and price comparator61AER Retail Pricing Information Guidelines for presentation of standing and market offer prices(1)

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

(2)

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

(3)

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

• (a)

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

• (b)

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

• (c)

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

62Price comparator(1)

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

(2)

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

(3)

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

• (a)

  the standing offer price available to that customer; and

• (b)

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

in accordance with the AER Retail Pricing Information Guidelines.

(4)

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

(5)

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

(6)

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

(7)

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

(8)

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

(9)

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

Note—

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

63AER information gathering powers for pricing guidelines and comparator

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

• (a)

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

• (b)

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

Notes—

This section is a civil penalty provision.

The AER is subject to Division 3 of Part 8 of this Law and section 44AAF of the Competition and Consumer Act 2010 of the Commonwealth in respect of the disclosure of confidential information it receives.

63A

(Repealed)

s 63A: Rep 2017 (290), Sch 1 [1].

Division 12Large customers—responsibility for energy consumed64Large customer consuming energy at premises

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

• (a)

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

• (b)

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

Part 3Relationship between distributors and customersDivision 1Preliminary65Application of this Part

This Part applies to the relationship between distributors and customers.

Note—

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

Division 2Obligation to provide customer connection services66Obligation to provide customer connection services(1)

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

• (a)

  who requests those services; and

• (b)

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

Note—

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

(2)

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

Note—

This section is a civil penalty provision.

Division 3Customer connection contracts generally67Kinds of customer connection contracts

• (a)

  on a natural person—

  • (i)

    by delivering it to the person personally; or

  • (ii)

    by leaving it at, or by sending it by post, facsimile or similar facility to the last known address of the place of residence or usual place of business of the person; or

  • (iii)

    by sending it electronically to that person, but, in the case of a small customer, only if the small customer has given explicit informed consent to receiving the notice or other document electronically; or

• (b)

  on a body corporate—

  • (i)

    by leaving it at the registered office or usual place of business of the body corporate with an officer of the body corporate; or

  • (ii)

    by sending it by post, facsimile or similar facility to its registered office or its usual place of business; or

  • (iii)

    by sending it electronically to that body corporate or an officer of the body corporate.

(2)

Nothing in subsection (1)—

• (a)

  affects the operation of another law that authorises the service of a notice or document otherwise than as provided in that subsection; or

• (b)

  affects the power of a court or tribunal to authorise service of a notice or other document otherwise than as provided in that subsection.

(3)

If—

• (a)

  this Law or the Rules require or permit a notice or other document to be given on a “business to business” basis between distributors and retailers or otherwise (whether the expression “deliver”, “give”, “notify” or “send” or another expression is used); and

• (b)

  the Retail Market Procedures make provision with respect to the procedure for giving the notice or other document,

compliance with that procedure is taken to satisfy any requirements of this Law or the Rules relating to the giving of the notice or other document.

(4)

Subsections (1) and (2) apply except to the extent a contrary intention appears in this Law and the Rules, and subsection (3) applies except to the extent a provision of this Law or the Rules expressly provides that that subsection does not apply.

320Law and the Rules to be construed not to exceed legislative power of Legislature(1)

This Law and the Rules are to be construed as operating to the full extent of, but so as not to exceed, the legislative power of the Legislature of this jurisdiction.

(2)

If a provision of this Law or the Rules, or the application of a provision of this Law or the Rules to a person, subject matter or circumstance would, but for this section, be construed as exceeding the legislative power of the Legislature of this jurisdiction—

• (a)

  it is a valid provision to the extent to which it is not in excess of the power; and

• (b)

  the remainder of this Law or the Rules, and the application of the provision to other persons, subject matters or circumstances, is not affected.

(3)

In particular, if a provision of this Law or the Rules appears to impose a duty on a Commonwealth officer or body to perform a function or exercise a power, the duty is taken to be imposed by the provision to the extent to which imposing the duty—

• (a)

  is within the legislative powers of this jurisdiction; and

• (b)

  is consistent with the constitutional doctrines under the Constitution of the Commonwealth restricting the duties that may be imposed on a Commonwealth officer or body.

(3a)

To avoid doubt, a provision of this Law or the Rules does not impose the duty on the Commonwealth officer or body to the extent to which imposing the duty would—

• (a)

  contravene any constitutional doctrine under the Constitution of the Commonwealth restricting the duties that may be imposed on a Commonwealth officer or body; or

• (b)

  otherwise exceed the legislative powers of this jurisdiction.

(3b)

If imposing on the Commonwealth officer or body the duty to do that thing would—

• (a)

  contravene any constitutional doctrine restricting the duties that may be imposed on a Commonwealth officer or body; or

• (b)

  otherwise exceed the legislative powers of both the State and the Commonwealth,

the provision of this Law or the Rules is taken instead to confer on the Commonwealth officer or body a power to do that thing at the discretion of the Commonwealth officer or body (as the case may require).

(4)

This section does not limit the effect that a provision of this Law or the Rules would validly have apart from this section.

s 320: Am 2021 No 3, sec 31.

321Penalty privilege

If an individual has a privilege against self-exposure to a penalty, other than for a criminal offence, the individual is not excused from doing any of the following on that ground—

• (a)

  providing information under this Law, the National Regulations or the Rules;

• (b)

  producing a document under this Law, the National Regulations or the Rules;

• (c)

  providing evidence under this Law, the National Regulations or the Rules;

• (d)

  answering a question under this Law, the National Regulations or the Rules.

s 321: Ins 2020 No 37, sec 46.

322Court may grant relief from liability

If in any proceedings under this Law in which a person, other than a body corporate, may be liable for an offence or a civil penalty it appears to the Court that the person acted honestly and reasonably and, having regard to all the circumstances of the case, ought fairly to be excused, the Court may relieve the person either wholly or partly from liability on such terms as the Court thinks fit.

s 322: Ins 2020 No 37, sec 46.

Schedule 1Savings and transitionalsPart 1Transitional provision related to AEMC rule making powers1AEMC rule making powers

The amendment to section 252 of this Law by section 19 of the Statutes Amendment (National Energy Laws) (Rules) Act 2018 does not apply to the making of—

• (a)

  a Rule on a request under section 243(1) of this Law received by the AEMC before the commencement of this clause; or

• (b)

  an AEMC initiated Rule (within the meaning of section 235 of this Law) in respect of which the AEMC has, before the commencement of this clause, published notice of its intention to make.

Part 2Transitional provision related to stand-alone power systems2Transitional provision related to stand-alone power systems

The designated retailer for a small customer’s premises that are connected to a stand-alone power system that becomes a regulated stand-alone power system under the NEL after the commencement of section 6B of the NEL is—

• (a)

  the financially responsible retailer for the premises; or

• (b)

  if there is no financially responsible retailer for the premises—the local area retailer for the premises.

Part 3Savings and transitional provisions related to Ministerial Council on Energy amendments2ADefinitions

In this Part—

Amendment Act means the Statutes Amendment (National Energy Laws) (Omnibus) Act 2021;

commencement day means the day on which section 25 of the Amendment Act comes into operation.

3References to Ministerial Council on Energy(1)

On and from the commencement day, a reference to the Ministerial Council on Energy or MCE in an Act, a legislative instrument, any other kind of instrument, or a contract, agreement or other document will be taken to be a reference to the MCE as defined in section 2 (as amended by section 25 of the Amendment Act).

(2)

In this clause—

agreement includes the Australian Energy Market Agreement or any other intergovernmental agreement to which this jurisdiction is a party.

4Rights under certain change of law provisions in agreements or deeds not to be triggered(1)

The substitution of the definition of the MCE by section 25 of the Amendment Act is not to be regarded as a change of law (however defined) under any agreement or deed in effect on the commencement day.

(2)

Subclause (1) applies despite any provision in any agreement or deed to the contrary.

5Rights under contracts etc(1)

The substitution of the definition of the MCE by section 25 of the Amendment Act does not affect a right, obligation, liability or immunity of the MCE under an agreement, deed or other instrument entered into by the MCE and in effect on the commencement day.

(2)

On and from the commencement day, a reference to the Ministerial Council on Energy or MCE in an agreement, deed or other instrument referred to in subclause (1) will be taken to be a reference to the MCE as defined in section 2 (as amended by section 25 of the Amendment Act).

(3)

Subclause (1) applies despite any provision in any agreement, deed or other instrument to the contrary.

6Saving of decisions etc

The substitution of the definition of the MCE by section 25 of the Amendment Act does not affect the validity of—

• (a)

  any decision or direction made by the MCE before the commencement day; or

• (b)

  any appointment in accordance with a recommendation or nomination of the MCE made before the commencement day.

Part 4Transitional provisions related to national energy retail objective amendments7Definitions

In this Part—

amended objective means the national energy retail objective as in force on the commencement of this clause;

amending Act means the Statutes Amendment (National Energy Laws) (Emissions Reduction Objectives) Act 2023;

government or regulatory entity means the AEMC, AEMO, the AER, the Energy Security Board, the MCE or another government entity;

start day—see clause 8(2)(a).

8When amended objective takes effect for particular matters(1)

This clause applies in relation to a thing required or permitted to be done under this Law by a person or body, other than the AEMC, if, in doing the thing, the person or body is required to consider or apply the national energy retail objective including, for example, by—

• (a)

  having regard to the national energy retail objective; or

• (b)

  doing the thing in a manner that will or is likely to contribute to the achievement of the national energy retail objective.

(2)

Despite section 9 of the amending Act—

• (a)

  the national energy retail objective as in force before that section came into operation continues to apply for the doing of the thing until the day (the start day) that is 2 months after the commencement of this clause; and

• (b)

  the amended objective applies in relation to the doing of the thing from the start day.

(3)

This clause is subject to clause 9.

9Application of national energy retail objective to particular matters in progress on start day(1)

This clause applies if—

• (a)

  before the start day, an entity or other person had started, or was required or permitted to start, doing a thing; and

• (b)

  on the start day—

  • (i)

    the entity or other person has not finished doing the thing; or

  • (ii)

    the period within which the thing is required or permitted to be done has not ended; and

• (c)

  in doing the thing the entity or other person is required to consider or apply the national energy retail objective by, for example—

  • (i)

    having regard to the national energy retail objective; or

  • (ii)

    doing the thing in a manner that will or is likely to contribute to the achievement of the national energy retail objective.

(2)

The national energy retail objective as in force before the commencement of this clause, and as continued under clause 8 until the start day, continues to apply in relation to the doing of the thing.

(3)

However, a government or regulatory entity may decide to consider or apply the amended objective in relation to the doing of the thing.

10Administrative guidance for decisions under clause 9(3)(1)

If a government or regulatory entity, other than the AER, proposes to exercise a discretion under clause 9(3), the entity must use its best endeavours to ensure that within 45 days after the commencement of this clause, it issues administrative guidance about the matters the entity is likely to have regard to in deciding whether to consider or apply the amended objective in doing a thing.

(2)

The AER must, within 45 days after the commencement of this clause, issue administrative guidance about the matters the AER is likely to have regard to in deciding whether to consider or apply the amended objective in doing a thing.

(3)

A failure to comply with this section does not prevent a government or regulatory entity from exercising a discretion under clause 9(3).

11Administrative guidance about value of greenhouse gas emissions(1)

This clause applies if—

• (a)

  administrative guidance is issued by a government or regulatory entity about considering or applying the amended objective; and

• (b)

  the guidance includes the value, or a method of working out the value, of greenhouse gas emissions or greenhouse gas emissions reduction; and

• (c)

  the guidance is consistent with any MCE statement.

(2)

The value or method stated in the administrative guidance must be complied with by the government or regulatory entity in considering or applying the amended objective.

(3)

This clause applies until a National Regulation or Rule takes effect for the matter described in subclause (1).

(4)

In this clause—

MCE statement means a statement issued by the MCE that states the value, or a method of or guidance for working out the value, of greenhouse gas emissions or greenhouse gas emissions reduction, that is to be used by a government or regulatory entity in considering or applying the amended objective until a National Regulation or Rule mentioned in subclause (3) takes effect.

12Validation of things done in relation to Rules before commencement(1)

This clause applies if, before the commencement of this clause—

• (a)

  the MCE or a Minister of a participating jurisdiction had requested a Rule under section 243(1) in relation to the national energy retail objective as if the amended objective were in force; and

• (b)

  the AEMC had done a thing under Part 10, other than sections 261 to 264, in relation to the request.

(2)

On the commencement of this clause—

• (a)

  the thing is taken to have been validly done under Part 10; and

• (b)

  the AEMC is taken to have satisfied a requirement under the Law to apply the national energy retail objective in relation to the thing.

Part 5Transitional provisions related to other gas amendments13Definition

In this Part—

commencement day means the day on which this Part comes into operation.

14Retailer authorisations

A retailer authorisation authorising the sale of natural gas and in effect immediately before the commencement day is taken to authorise the sale of natural gas and natural gas equivalents.

15Exempt sellers(1)

A person who immediately before the commencement day was an exempt seller for natural gas is taken to be an exempt seller for natural gas and natural gas equivalents to the same extent and on the same conditions as applied immediately before the commencement day.

(2)

In this clause—

exempt seller means a person who is exempt, under Part 5, Division 6 of this Law, from the requirement to hold a retailer authorisation.

16RoLR arrangements(1)

A retailer who immediately before the commencement day was appointed and registered as the default RoLR for a gas distribution system continues to be the default RoLR for that distribution system whether the distribution system is used for natural gas or a natural gas equivalent.

(2)

A retailer who immediately before the commencement day was registered as an additional RoLR for a gas distribution system continues to be an additional RoLR for that distribution system whether the distribution system is used for natural gas or a natural gas equivalent.

(3)

A retailer who immediately before the commencement day was appointed as a designated RoLR for a gas distribution system continues to be the designated RoLR for that distribution system whether the distribution system is used for natural gas or a natural gas equivalent.

(4)

Nothing in this clause limits the power of the AER to terminate the appointment and registration of a retailer as a default RoLR in accordance with section 125(9) of this Law.

(5)

Nothing in this clause limits the power of the AER to terminate the registration of a retailer as a RoLR in accordance with section 128 of this Law.

sch 1: Ins 2018 No 12, sec 20. Am 2021 No 3, sec 32; 2021 No 9, sec 12; 2023 No 26, sec 13; 2023 No 36, sec 90.

Historical notesTable of amending instruments

National Energy Retail Law (NSW) (applied with changes and additions as a law of New South Wales by the National Energy Retail Law (Adoption) Act 2012 No 37). Date of commencement, 1.7.2013, sec 2 (1) and 2013 (164) LW 26.4.2013. This Law has been amended as follows—

2013	(168)	National Energy Retail Law (Adoption) Regulation 2013. LW 26.4.2013. Date of commencement, 1.7.2013, cl 2. Amended by National Energy Retail Law (Adoption) Amendment (Carbon Tax) Regulation 2014 (408). LW 27.6.2014. Date of commencement, 1.7.2014, cl 2.
No 69	Statutes Amendment (Smart Meters) Act 2013 of South Australia. Assented to 21.11.2013. Date of commencement of Part 3, 28.11.2013, sec 2 (1) and South Australian Government Gazette 28.11.2013 p 4383.
No 111	Statute Law (Miscellaneous Provisions) Act (No 2) 2013. Assented to 3.12.2013. Date of commencement of Sch 3.16, 3.1.2014, sec 2 (1).
2014	(400)	National Energy Retail Law (Adoption) Amendment (Retail Price Deregulation) Regulation 2014. LW 27.6.2014. Date of commencement, 1.7.2014, cl 2.
2015	No 36	Energy Legislation Amendment (Retail Electricity and Gas Pricing) Act 2015. Assented to 2.11.2015. Date of commencement of Sch 1, assent, sec 2 (1).
2017	(290)	National Energy Retail Law (Adoption) Amendment (Deregulation) Regulation 2017. LW 23.6.2017. Date of commencement, 1.7.2017, cl 2. Sch 1 [1] to the extent that it omitted Sch 1 [22] to the National Energy Retail Law (Adoption) Act 2012 was without effect as the item was omitted by the National Energy Retail Law (Adoption) Amendment (Retail Price Deregulation) Regulation 2014.
2018	No 12	Statutes Amendment (National Energy Laws) (Rules) Act 2018 of South Australia. Assented to 9.8.2018. Date of commencement, 20.9.2018, sec 2 and South Australian Government Gazette 20.9.2018 p 3500.
2020	(228)	National Energy Retail Law (Adoption) Amendment (De-energisation and Re-energisation Charges) Regulation 2020. LW 29.5.2020. Date of commencement, on publication on LW, cl 2.
No 37	Statutes Amendment (National Energy Laws) (Penalties and Enforcement) Act 2020 of South Australia. Assented to 22.10.2020. Date of commencement, 29.1.2021, sec 2 and South Australian Government Gazette 27.1.2021 p 163.
2021	No 3	Statutes Amendment (National Energy Laws) (Omnibus) Act 2021 of South Australia. Assented to 11.2.2021. Date of commencement, 15.4.2021, sec 2 and South Australian Government Gazette 15.4.2021 p 1169.
No 9	Statutes Amendment (National Energy Laws) (Stand-Alone Power Systems) Act 2021 of South Australia. Assented to 11.3.2021. Date of commencement, 20.5.2021, sec 2 and South Australian Government Gazette 20.5.2021 p 1398.
2022	No 21	Statutes Amendment (National Energy Laws) (Gas Pipelines) Act 2022 of South Australia. Assented to 24.11.2022. Date of commencement, 2.3.2023, sec 2 and South Australian Government Gazette 2.3.2023 p 464.
No 22	Statutes Amendment (National Energy Laws) (Regulatory Sandboxing) Act 2022 of South Australia. Assented to 24.11.2022. Date of commencement, 8.12.2022, sec 2 and South Australian Government Gazette 8.12.2022 p 6823.
(712)	National Energy Retail Law (Adoption) Amendment Regulation 2022. LW 25.11.2022. Date of commencement, on publication on LW, sec 2.
2023	No 26	Statutes Amendment (National Energy Laws) (Emissions Reduction Objectives) Act 2023 of South Australia. Assented to 21.9.2023. Date of commencement, assent, sec 2.
No 36	Statutes Amendment (National Energy Laws) (Other Gases) Act 2023 of South Australia. Assented to 23.11.2023. Date of commencement, 7.3.2024, sec 2 and South Australian Government Gazette 7.3.2024 p 371.
2024	No 47	Statute Law (Miscellaneous Provisions) Act 2024. Assented to 9.8.2024. Date of commencement, assent, sec 2.

Table of amendments

Sec 2	Am 2017 (290), Sch 1 [1]; 2018 No 12, sec 12; 2020 No 37, sec 34; 2021 No 3, sec 25; 2022 No 21, sec 6; 2022 No 22, sec 18; 2023 No 36, sec 71.
Sec 2A	Ins 2023 No 36, sec 72.
Sec 3A	Ins 2023 No 36, sec 73.
Sec 3A (as originally enacted)	Am 2022 (712), sec 3. Renumbered as sec 3AZ, 2024 No 47, Sch 2.11.
Sec 3AZ (previously sec 3A)	Renumbered 2024 No 47, Sch 2.11.
Sec 4	Am 2017 (290), Sch 1 [1].
Sec 4A	Ins 2020 No 37, sec 35.
Sec 7A	Ins 2020 No 37, sec 36.
Sec 8A	Ins 2018 No 12, sec 13.
Sec 9	Subst 2021 No 3, sec 26.
Sec 10	Am 2021 No 3, sec 27; 2023 No 36, sec 74.
Sec 11	Am 2023 No 36, sec 75.
Sec 13

Am 2023 No 26, sec 9.
Sec 13AA	Ins 2023 No 26, sec 10.
Sec 13A	Ins 2022 No 22, sec 19. Am 2023 No 36, sec 76.
Sec 16	Am 2023 No 36, sec 77.
Sec 20	Am 2017 (290), Sch 1 [1].
Sec 22	Am 2013 No 69, sec 7.
Part 2, Div 4A	Rep 2017 (290), Sch 1 [1].
Sec 37AA	Ins 2014 (400), Sch 1 [1]. Rep 2017 (290), Sch 1 [1].
Sec 37A	Am 2014 (400), Sch 1 [2]. Rep 2017 (290), Sch 1 [1].
Sec 37B	Am 2014 (400), Sch 1 [3]. Rep 2017 (290), Sch 1 [1].
Sec 37C	Am 2014 (400), Sch 1 [3] [4]; 2015 No 36, Sch 1. Rep 2017 (290), Sch 1 [1].
Sec 37D	Am 2014 (400), Sch 1 [3]. Rep 2017 (290), Sch 1 [1].
Part 2, Div 4B	Ins 2013 (168), cl 9. Rep 2013 (168), cl 9 (subst 2014 (408), cl 3).
Sec 37E	Ins 2013 (168), cl 9. Am 2013 No 111, Sch 3.16. Rep 2013 (168), cl 9 (subst 2014 (408), cl 3).
Sec 54	Am 2014 (400), Sch 1 [5]; 2017 (290), Sch 1 [1].
Sec 55	Am 2014 (400), Sch 1 [6]; 2017 (290), Sch 1 [1].
Sec 63A	Rep 2017 (290), Sch 1 [1].
Sec 79	Am 2017 (290), Sch 1 [1].
Sec 88	Am 2022 No 21, sec 7; 2023 No 36, sec 78.
Sec 94	Am 2023 No 36, sec 79.
Sec 99	Am 2023 No 36, sec 80.
Sec 107	Am 2020 No 37, sec 37.
Sec 112A	Rep 2014 (400), Sch 1 [7].
Part 5A	Ins 2022 No 22, sec 20.
Sec 121A	Ins 2022 No 22, sec 20.
Sec 121B	Ins 2022 No 22, sec 20.
Sec 121C	Ins 2022 No 22, sec 20.
Sec 121D	Ins 2022 No 22, sec 20.
Sec 121E	Ins 2022 No 22, sec 20.
Sec 121F	Ins 2022 No 22, sec 20.
Sec 121G	Ins 2022 No 22, sec 20.
Sec 121H	Ins 2022 No 22, sec 20.
Sec 121I	Ins 2022 No 22, sec 20.
Sec 121J	Ins 2022 No 22, sec 20.
Sec 121K	Ins 2022 No 22, sec 20.
Sec 137	Am 2022 No 21, sec 8; 2023 No 36, sec 81.
Sec 144	Am 2023 No 36, sec 82.
Sec 145	Am 2014 (400), Sch 1 [8]; 2017 (290), Sch 1 [1].
Sec 158	Am 2020 No 37, sec 38.
Sec 204	Am 2022 No 22, sec 21.
Sec 206	Am 2020 No 37, sec 39.
Sec 210A	Ins 2018 No 12, sec 14.
Sec 214	Am 2021 No 3, sec 28.
Sec 218	Am 2020 No 37, sec 40.
Sec 224A	Ins 2023 No 26, sec 11.
Sec 230	Am 2021 No 3, sec 29.
Part 9A	Ins 2014 (400), Sch 1 [9].
Sec 234A	Ins 2014 (400), Sch 1 [9]. Am 2017 (290), Sch 1 [2]–[7].
Sec 234B	Ins 2014 (400), Sch 1 [9]. Am 2017 (290), Sch 1 [8] [9].
Secs 234C, 234D	Ins 2014 (400), Sch 1 [9].
Sec 235	Am 2021 No 3, sec 30; 2022 No 22, sec 22.
Sec 236A	Ins 2022 No 22, sec 23.
Sec 237	Am 2013 No 69, sec 8; 2021 No 9, sec 10; 2022 No 22, sec 24; 2023 No 36, sec 83.
Part 10, Div 3, heading	Am 2018 No 12, sec 15.
Part 10, Div 3, Subdiv 1, heading	Ins 2018 No 12, sec 16.
Sec 238	Am 2023 No 36, sec 84.
Sec 238AA	Ins 2022 No 22, sec 25. Am 2023 No 36, sec 85.
Sec 238A	Ins 2013 No 69, sec 9. Am 2023 No 36, sec 86.
Sec 238AB	Ins 2021 No 9, sec 11. Am 2023 No 36, sec 87.
Sec 238AC	Ins 2023 No 26, sec 12.
Sec 238AD	Ins 2023 No 36, sec 88.
Part 10, Div 3, Subdiv 2	Ins 2018 No 12, sec 17.
Sec 238B	Ins 2018 No 12, sec 17. Am 2023 No 36, sec 89.
Sec 239	Am 2018 No 12, sec 18.
Sec 246	Am 2022 No 22, sec 26.
Sec 249	Am 2022 No 22, sec 27.
Sec 252	Am 2018 No 12, sec 19.
Sec 252A	Ins 2022 No 22, sec 28.
Sec 259	Am 2022 No 22, sec 29.
Sec 261	Am 2022 No 22, sec 30.
Sec 262A	Ins 2022 No 22, sec 31.
Sec 262B	Ins 2022 No 22, sec 31.
Sec 262C	Ins 2022 No 22, sec 31.
Sec 262D	Ins 2022 No 22, sec 31.
Sec 291	Am 2020 No 37, sec 41.
Sec 292	Am 2020 No 37, sec 42.
Sec 294	Am 2020 No 37, sec 43.
Secs 300A, 300B	Ins 2020 No 37, sec 44.
Sec 305	Am 2020 No 37, sec 45.
Sec 318A	Ins 2020 (228), Sch 1.
Sec 320	Am 2021 No 3, sec 31.
Secs 321, 322	Ins 2020 No 37, sec 46.
Sch 1	Ins 2018 No 12, sec 20. Am 2021 No 3, sec 32; 2021 No 9, sec 12; 2023 No 26, sec 13; 2023 No 36, sec 90.