National Energy Retail Law (Queensland) (Qld)

National Energy Retail Law (Queensland)

Editor’s note—

The National Energy Retail Law is applied (with modifications) as a law of Queensland by the National Energy Retail Law (Queensland) Act 2014. This version is the Law as it applies in Queensland—see the National Energy Retail Law (Queensland) Act 2014, section 4. It is intended a new reprint of the National Law will be prepared by the Office of the Queensland Parliamentary Counsel when any change in the National Law takes effect.

Part 1    Preliminary

Division 1 Citation and interpretation

1   Citation

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

2   Interpretation

(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;

assigned retailer means a government owned corporation declared, under section 64C, to be an assigned retailer for Subdivision 2 of Division 12A of Part 2;

Editor’s note—

This definition is an additional Queensland provision.

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;

card-operated meter means a device, including any associated equipment, for measuring electricity that switches on and off in accordance with the amount of credit applied to the device by a card designed for use with the device;

Editor’s note—

This definition is an additional Queensland provision.

card-operated meter premises means premises of a small customer at which electricity is sold to the small customer using a card-operated meter;

Editor’s note—

This definition is an additional Queensland provision.

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;

compliance, investigation or enforcement provision means the following—

(a)Part 8;

(b)Divisions 1 to 3 of Part 13;

(c)any other provision of this Law conferring on the AER a function or power relating to monitoring, investigating or enforcing provisions of this Law;

(d)any other provision of this Law relating to the performance of a function or exercise of a power under a provision mentioned in paragraph (a), (b) or (c);

Editor’s note—

This definition is an additional Queensland provision.

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;

Ergon Energy Distribution means Ergon Energy Corporation Limited ACN 087 646 062;

Editor’s note—

This definition is an additional Queensland provision.

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)for electricity—

(i)for premises connected to a nominated distributor’s distribution system—the retailer who is currently selling, or most recently sold, electricity to a customer at the premises; or

(ii)for other premises—the retailer who is the financially responsible Market Participant responsible for the premises under the NER; or

(b)for gas—

(i)for premises connected to a nominated distributor’s distribution system—the retailer who is currently selling, or most recently sold, gas to a customer at the premises; or

(ii)for other premises—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;

Editor’s note—

This definition is a substituted Queensland provision.

gas means the following:

(a)natural gas;

(b)a natural gas equivalent;

(c)a prescribed covered gas;

government owned corporation—

(a)means a government owned corporation within the meaning given by the Government Owned Corporations Act 1993 of Queensland; and

(b)includes a subsidiary within the meaning given by that Act;

Editor’s note—

This definition is an additional Queensland provision.

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;

large customer standard retail contract, of an assigned retailer, means the retailer’s large customer standard retail contract under Subdivision 2 of Division 12A of Part 2;

Editor’s note—

This definition is an additional Queensland provision.

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 National 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)for electricity—

(i)generally—the NMI; or

(ii)for premises supplied electricity on a distribution system of Ergon Energy Distribution—a unique identification number allocated by Ergon Energy Distribution to a meter at the premises; or

(b)for gas—the MIRN or the delivery point identifier;

Editor’s note—

This definition is a substituted Queensland provision.

Minister of a participating jurisdiction—see section 10;

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

monitoring, investigating or enforcing, in relation to a provision of this Law, means the following—

(a)monitoring compliance by persons with the provision;

(b)investigating breaches or possible breaches of the provision, including offences;

(c)instituting and conducting proceedings in relation to breaches of the provision;

(d)instituting and conducting appeals from decisions in proceedings mentioned in paragraph (c);

Editor’s note—

This definition is an additional Queensland provision.

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;

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—

(a)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; but

(b)does not include a device, componentry, software or other mechanism that is or includes a card-operated meter;

Editor’s note—

This definition is a substituted Queensland provision.

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—see section 5;

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;

standard retail contract (card-operated meters) means a standard retail contract consistent with the model terms and conditions applying to standard retail contracts for selling electricity to a small customer using a card-operated meter;

Editor’s note—

This definition is an additional Queensland provision.

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.

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

2A   Natural 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.

3   Application 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.

3A   Application 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.

4   Meaning 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 19A(1)	Restriction on selling electricity to particular small customers
Section 19B(1)	Restriction on selling gas to particular small customers
Section 19C(1), (4) and (6)	Additional restrictions on sale of energy by assigned retailer
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 60C(1)	Contractual arrangements for selling electricity using card-operated meter
Section 60D(1) and (4)	Premises registered as having life support equipment
Section 63	AER information gathering powers for pricing guidelines and comparator
Section 64A(1)	Restriction on selling gas to particular large customers
Section 64D(2) and (4)	Assigned retailer to make offer to large customers
Section 64E(5)	Assigned retailer’s large customer standard retail contract
Section 64M(2) and (3)	Origin Energy to make offer to large customers
Section 64N(5)	Origin Energy’s large customer standard retail contract
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 78B(1)	Contractual arrangements for card-operated meter premises
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

Editor’s note—

The entries in the Table for sections 19A(1), 19B(1), 19C(1), (4) and (6), 60C(1), 60D(1) and (4), 64A(1), 64D(2) and (4), 64E(5), 64M(2) and (3), 64N(5) and 78B(1) are additional Queensland provisions.

(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.

4A   Civil 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.

5   Meaning 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)a business customer who consumes energy at business premises at or above the upper consumption threshold; or

(b)the State or a local government that consumes energy at street lighting premises.

Editor’s note—

This subsection is a substituted Queensland provision.

(4)A small market offer customer is a small customer who is a business customer who consumes energy at or above the lower consumption threshold.

(5)In this section—

local government means—

(a)the Brisbane City Council; or

(b)a local government under the Local Government Act 2009 of Queensland;

State has the meaning given by section 18(2);

street lighting premises means premises comprising street lighting or a system of street lighting.

Editor’s note—

This subsection is an additional Queensland provision.

6   Provisions 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 National 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)National 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.

7   Classification 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.

7A   Related 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.

8   Interpretation 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.

(3)Editor’s notes included in this Law do not form part of this Law.

(4)The following apply for interpreting editor’s notes included in this Law—

(a)an additional Queensland provision is a provision of this Law that does not form part of the NERL and has been included for the application of the NERL in Queensland;

(b)a substituted Queensland provision is a provision of this Law that is a substitute for a provision of the NERL (of the same number) and has been substituted for the application of the NERL in Queensland;

(c)a provision that is not applicable in Queensland is a provision of the NERL that does not apply in Queensland.

(5)In this section—

NERL means the National Energy Retail Law, as amended from time to time, set out in the Schedule to the National Energy Retail Law (South Australia) Act 2011 of South Australia.

Editor’s note—

Subsections (3) to (5) are additional Queensland provisions.

8A   Savings and transitionals

Schedule 1 has effect.

Division 2 Matters relating to participating jurisdictions

9   Participating 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.

10   Ministers 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).

11   Local 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.

12   Nominated 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 3 National energy retail objective and policy principles

13   National 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.

13AA   National 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).

13A   Innovative 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.

14   MCE 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 4 Operation and effect of National Energy Retail Rules

15   Rules to have force of law

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

Division 5 Application of this Law and the Rules to forms of energy

16   Application 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.

Division 6 Miscellaneous

17   Extraterritorial 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.

18   Law 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 2    Relationship between retailers and small customers

Division 1 Preliminary

19   Application of this Part

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

(2)This Part, other than Divisions 12 and 12A, does not apply to or affect the relationship between retailers and large customers.

Editor’s note—

This subsection is a substituted Queensland provision.

(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 1A Additional Queensland provisions about restrictions on sale of energy

Editor’s note—

The provisions of this Division are additional Queensland provisions.

19A   Restriction on selling electricity to particular small customers

(1)A retailer must not sell electricity to an excluded small customer unless—

(a)the retailer is the designated retailer for the customer’s premises; or

(b)the sale is authorised or required under the RoLR scheme under Part 6.

Note—

This subsection is a civil penalty provision.

(2)In this section—

excluded small customer means a small customer who is—

(a)an excluded customer under section 23(4) of the Electricity Act 1994 of Queensland; or

(b)a customer to whom section 319 or 319A of the Electricity Act 1994 of Queensland applies.

19B   Restriction on selling gas to particular small customers

(1)A retailer must not sell gas to an excluded small customer unless the sale is authorised or required under—

(a)the RoLR scheme under Part 6; or

(b)an insufficiency of supply declaration, or an insufficiency of supply direction, under the Gas Supply Act 2003 of Queensland.

Note—

This subsection is a civil penalty provision.

(2)To remove any doubt, it is declared that section 22 does not apply to a retailer selling gas to an excluded small customer.

(3)However, Division 9 applies to a retailer selling gas to an excluded small customer in the retailer’s capacity as the financially responsible retailer for premises.

(4)In this section—

excluded small customer means a small customer who is an excluded customer under section 16(4) of the Gas Supply Act 2003 of Queensland.

19C   Additional restrictions on sale of energy by assigned retailer

(1)An assigned retailer may provide customer retail services to a customer for premises only if the retailer is—

(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)—

(i)the local area retailer for the relevant geographical area, premises or customer (see section 11(3)); and

(ii)if the customer is a large customer—the financially responsible retailer for the premises.

Note—

This subsection is a civil penalty provision.

(2)Subsection (1) does not apply if the assigned retailer provides customer retail services to a customer who is required to be transferred to the retailer to correct an erroneous transfer, completed under the NER, from the retailer to another holder of a retailer authorisation.

(3)It is a defence to a proceeding under subsection (1) if, because of information given by the customer, the assigned retailer reasonably believed it was obliged to provide customer retail services to the customer for the premises.

(4)An assigned retailer may provide customer retail services to a customer only under—

(a)for a small customer—a standard retail contract (including a standard retail contract (card-operated meters)); or

(b)for a large customer—the retailer’s large customer standard retail contract.

Note—

This subsection is a civil penalty provision.

(5)Subsection (4) does not apply to an assigned retailer providing customer retail services to a customer in the circumstances prescribed under a local instrument of this jurisdiction.

(6)If an assigned retailer provides customer retail services under subsection (5), the retailer must comply with the conditions prescribed under a local instrument of this jurisdiction for the provision of the services.

Note—

This subsection is a civil penalty provision.

(7)This section does not prevent an assigned retailer entering into a separate arrangement with a qualifying customer of the retailer to buy electricity produced at the qualifying customer’s premises and supplied to a distribution system.

(8)In this section—

qualifying customer means a customer whose annual consumption at the customer’s premises is, or is estimated by the distributor who provides customer connection services to the premises to be, less than 100 megawatt hours.

19D   Monitoring, investigating and enforcing this Division

(1)A local instrument of this jurisdiction must nominate the entity who is the Regulator for this Division.

(2)The Regulator has, for monitoring, investigating or enforcing this Division, the same functions and powers the AER has for monitoring, investigating or enforcing other provisions of this Law.

(3)For subsection (2), this Law applies to monitoring, investigating or enforcing this Division as if a reference in a compliance, investigation or enforcement provision to the AER were a reference to the Regulator.

(4)This Law confers functions and powers on the AER for monitoring, investigating or enforcing this Division only if the AER is nominated as the Regulator under subsection (1) and only to the extent provided for under this section.

Division 2 Customer retail contracts generally

20   Kinds 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.

Division 3 Standing offers and standard retail contracts for small customers

21   Model 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).

22   Obligation 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.

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.

(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.

22A   Additional Queensland provision about standing offer prices for particular retailers

(1)Subsection (2) applies if there are notified prices under section 90(4) of the Electricity Act 1994 of Queensland for a retailer providing customer retail services to all or particular small customers.

(2)For the purposes of this Law, the retailer’s standing offer prices for providing the customer retail services to the small customers must, under section 91A of the Electricity Act 1994 of Queensland, be the notified prices.

(3)Subsection (4) applies if—

(a)on or after the commencement of this section, there were notified prices under section 90(4) of the Electricity Act 1994 of Queensland for a retailer providing customer retail services to all or particular small customers; and

(b)the price determination fixing the notified prices no longer applies under section 89E of the Electricity Act 1994 of Queensland.

(4)For the purposes of this Law, the retailer’s standing offer prices for providing the customer retail services to the small customers may comprise only fees and charges of types that were the subject of the notified prices for the financial year immediately preceding the day the price determination no longer applies.

23   Standing offer prices

(1)Publication of standing offer prices
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—

1A standing offer price may be a regulated price under jurisdictional energy legislation.

2This subsection is a civil penalty provision.

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

(5)Limitations on commencement of variation
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)Notification to AER
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)Publication by AER
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.

(8)Limitation on application of this section
This section applies only as follows—

(a)in relation to a retailer who sells gas;

(b)subject to subsection (9), in relation to a retailer who sells electricity to small customers whose standing offer prices stop being notified prices under section 90(4) of the Electricity Act 1994 of Queensland because the price determination fixing the notified prices no longer applies (as mentioned in section 22A(3)).

(9)Modified application of this section
This section applies in relation to a retailer mentioned in subsection (8)(b) with the following changes—

(a)the retailer—

(i)must set its standing offer prices immediately after the price determination mentioned in the subsection no longer applies; and

(ii)can not vary the standing offer prices for 1 year after the prices are set under subparagraph (i), unless the variation is to reduce the standing offer prices;

(b)despite subsection (3)(c), if the retailer varies its standing offer prices to increase the prices, the retailer must inform each affected customer of the variation at least 10 business days before the variation takes effect;

(c)despite subsections (2)(b) and (5), the retailer may vary its standing offer prices to reduce the prices at any time.

Editor’s note—

Subsections (8) and (9) are additional Queensland provisions.

23A   Additional Queensland provision about publication and notification of standing offer prices etc.

(1)This section applies to a retailer who sells electricity to small customers whose standing offer prices are notified prices under section 90(4) of the Electricity Act 1994.

(2)The retailer must, if the retailer’s standing offer prices are varied, inform each affected customer of the variation when the retailer sends the next bill to the customer.

Editor’s note—

This section is an additional Queensland provision.

23B   Monitoring, investigating and enforcing ss 22A and 23A

(1)A local instrument of this jurisdiction must nominate the entity that is the Regulator for sections 22A and 23A (each a relevant provision).

(2)The Regulator has, for monitoring, investigating or enforcing a relevant provision, the same functions and powers the AER has for monitoring, investigating or enforcing other provisions of this Law.

(3)For subsection (2), this Law applies to monitoring, investigating or enforcing a relevant provision as if a reference in a compliance, investigation or enforcement provision to the AER were a reference to the Regulator.

(4)This Law confers functions and powers on the AER for monitoring, investigating or enforcing a relevant provision only if the AER is nominated as the Regulator under subsection (1) and only to the extent provided for under this section.

Editor’s note—

This section is an additional Queensland provision.

24   Presentation 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.

25   Adoption of form of standard retail contract

(1)Adoption and publication
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)Rules
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)Adoption without alteration except as permitted or required
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
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
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)Definition
In this section—

alterations includes omissions and additions.

26   Formation 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).

27   Obligation 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.

28   Variation of standard retail contract

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

(2)Variation of form of standard retail contract—required alterations
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
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
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)When variation takes effect on existing contracts
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)Definition
In this section—

alterations includes omissions and additions.

29   Standard 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.

30   Duration 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.

31   Satisfaction of designated retailer’s obligation to make standing offer by making market offer to certain small customers

(1)A designated retailer may fulfill its obligation to make a standing offer to a small market offer customer (or any class of small market offer customers) by making an offer to provide customer retail services under a market retail contract.

(2)If—

(a)such an offer is made to a small market offer customer in accordance with the Rules; and

(b)the customer declines to enter into a market retail contract,

      the designated retailer may, but is not obliged to, make a standing offer to the customer.

(3)This section does not apply to a designated retailer who sells electricity.

Editor’s note—

This subsection is an additional Queensland provision.

32   Rules

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 4 Market retail contracts for small customers

33   Formation 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.

34   Minimum 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).

35   Variation 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.

36   Market 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).

37   Presentation 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.

Division 5 Explicit informed consent

38   Requirement 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—

1See section 41 for the consequences of not obtaining explicit informed consent as required.

2This section is a civil penalty provision.

39   Nature 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.

40   Record 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.

41   No 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.

42   Rules

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 6 Customer hardship

43   Customer 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.

44   Minimum 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.

45   Approval 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.

46   Obligation 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.

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

Division 5 Judicial review of decisions under this Law, the National Regulations and the Rules

301   Definition

In this Division—

person aggrieved includes a person whose interests are adversely affected.

302   Applications for judicial review of decisions of the AEMC

(1)A person aggrieved by—

(a)a decision or determination of the AEMC under this Law, the National Regulations or the Rules; or

(b)a failure by the AEMC to make a decision or determination under this Law, the National Regulations or the Rules; or

(c)conduct engaged in, or proposed to be engaged in, by the AEMC for the purpose of making a decision or determination under this Law, the National Regulations or the Rules,

      may apply to the Court for judicial review of the decision or determination, failure or conduct or proposed conduct.

Note—

The AER is subject to judicial review under the Administrative Decisions (Judicial Review) Act 1977 of the Commonwealth.

(2)Unless the Court otherwise orders, the making of an application to the Court under subsection (1) does not affect the operation of the decision or determination referred to in that subsection or prevent the taking of action to implement the decision or determination.

Division 6 Further provision for corporate liability for breaches of this Law

303   Definition

In this Division—

breach provision means an offence provision, a civil penalty provision or a conduct provision.

304   Offences and breaches by corporations

(1)If a corporation contravenes a breach provision, each officer of the corporation is to be taken to have contravened the breach provision if the officer knowingly authorised or permitted the contravention or breach.

(2)An officer of a corporation may be proceeded against under a breach provision pursuant to this section whether or not the corporation has been proceeded against under the provision.

(3)Nothing in this section affects the liability of a corporation for a contravention of a breach provision.

305   Corporations also in breach if officers and employees are in breach

If an officer or employee of a corporation commits an act, which is within the scope of the actual or apparent authority of the officer or employee, that would, if that act were committed by the corporation, constitute a breach of a provision of this Law, the National Regulations or the Rules, the corporation is to be taken to have contravened that provision.

Division 7 Application of provisions of NGL

306   Tribunal review of information disclosure decision

(1)This section applies to a decision to disclose information made by the AER under section 214.

(2)The provisions of Division 3 of Part 5 of Chapter 8 of the NGL apply to a decision referred to in subsection (1)in the same way as they apply to an information disclosure decision as defined in that Part.

(3)For that purpose—

(a)(without limiting subsection (2)) a reference in that Division to the NGL (however expressed) is taken to be a reference to this Law; and

(b)references in that Division to AEMO are taken to be omitted; and

(c)the reference in section 263 of the NGL to “section 91GH or section 329 (as the case requires)” is taken to be a reference to section 214 of this Law; and

(d)that Division applies with any other modifications prescribed by the National Regulations.

307   Costs in a review

(1)This section applies to a review under the provisions applied by section 306.

(2)Subject to this section, the Australian Competition Tribunal may order that a party to a review to which this section applies pay all or a specified part of the costs of another party to the review.

(3)The Tribunal must not make an order requiring the AER to pay the costs of another party to the review unless the Tribunal considers that the AER has conducted its case in the review without due regard to—

(a)the costs that would have to be incurred by another party to the review as a result of that conduct; or

(b)the time required by—

(i)the Tribunal to hear the review as a result of that conduct; or

(ii)another party to prepare their case as a result of that conduct; or

(c)the submissions or arguments made to the Tribunal by another party.

308   Infringement notices

(1)This section applies in relation to civil penalty provisions within the meaning of this Law.

(2)The provisions of Part 7 of Chapter 8 of the NGL apply in relation to civil penalty provisions referred to in subsection (1) in the same way as they apply in relation to civil penalty provisions within the meaning of the NGL.

(3)For that purpose—

(a)a reference in those provisions to the “Regulations” is taken to be a reference to the National Regulations within the meaning of this Law; and

(b)those provisions apply with any modifications prescribed by the National Regulations.

309   Search warrants

The provisions of Division 2 of Part 1 of Chapter 2 of the NGL apply, with such modifications as are prescribed by the National Regulations, in relation to the provisions of this Law, the National Regulations and the Rules in the same way as they apply in relation to a relevant provision within the meaning of section 31 of the NGL.

Part 14    Evidentiary matters

Division 1 Publication on websites

310   Definitions

In this Division—

decision maker means the Minister of a participating jurisdiction, the AER or the AEMC;

relevant decision or document means a decision (however described) or determination (however described) of a decision maker under this Law or the Rules;

relevant notice means a notice under the Rules calling for or inviting submissions or comments in relation to a relevant decision or document.

311   Publication of decisions on websites

(1)For the purposes of this Law, a relevant decision or document or relevant notice that is required by this Law or the Rules to be published on a website is to be taken to be published on the website if—

(a)the relevant decision or document or relevant notice is made accessible in full on the website; or

(b)notice of the making or publication of the relevant decision or document or relevant notice is made accessible on that website and the relevant decision or document or relevant notice is made accessible separately in full on that website or in any other identified location.

(2)The date on which the relevant decision or document or relevant notice is published on the website is the date notified by the relevant decision maker on the website as the date of publication of the relevant decision or document or relevant notice (being not earlier than the date on which it was first made so accessible).

Division 2 Evidentiary certificates

312   Definitions

In this Division—

acting SES employee has the same meaning as in section 17AA of the Acts Interpretation Act 1901 of the Commonwealth;

AEMC chief executive means the chief executive of the AEMC appointed under section 16 of the Australian Energy Market Commission Establishment Act 2004 of South Australia;

AEMC Commissioner means a Commissioner within the meaning of the Australian Energy Market Commission Establishment Act 2004 of South Australia;

AER member has the same meaning as in the Competition and Consumer Act 2010 of the Commonwealth;

relevant notice has the same meaning as in section 310;

SES employee has the same meaning as in section 17AA of the Acts Interpretation Act 1901 of the Commonwealth.

313   Evidentiary certificates—AER

In any proceedings under this Law, a certificate signed or purported to be signed by an AER member, or an SES employee or acting SES employee assisting the AER as mentioned in section 44AAC of the Competition and Consumer Act 2010 of the Commonwealth, stating any of the following matters is evidence of the matter:

(a)a stated document is one of the following things, made, given, served or issued under this Law or the Rules:

(i)a decision (however described) or determination (however described);

(ii)a retailer authorisation;

(iii)a notice, notification, direction, order or requirement;

(b)a stated document is a copy of a thing referred to in paragraph (a);

(c)on a stated day, a person was or was not—

(i)given a decision (however described), or determination (however described);

(ii)the holder of a current retailer authorisation;

(iii)an exempt seller;

(iv)authorised as an authorised person within the meaning of the provisions applied by section 309);

(v)served a notice under section 206;

(d)on a stated day any of the following were published on the AER’s website:

(i)a decision (however described) or determination (however described);

(ii)a relevant notice.

314   Evidentiary certificates—AEMC

In any proceedings under this Law, a certificate signed or purported to be signed by an AEMC Commissioner or the AEMC chief executive, stating any of the following matters is evidence of the matter:

(a)a stated document is a decision (however described), made, given, served or issued under this Law;

(b)a stated document is a copy of a thing referred to in paragraph (a);

(c)on a stated day, a person was or was not given a decision (however described);

(d)on a stated day a notice was published on the AEMC’s website.

Division 3 Time of commencement of a Rule

315   Time of commencement of a Rule

If a notice published in the South Australian Government Gazette under section 238 or 262 provides that a Rule commences on a particular day, the Rule commences at the beginning of that day.

Part 15    General

316   Immunity in relation to failure to supply energy

(1)A retailer or distributor, or an officer or employee of a retailer or distributor, does not incur any civil monetary liability for any partial or total failure to supply energy unless the failure is due to an act or omission done or made by the retailer or distributor or the officer or employee of the retailer or distributor, in bad faith or through negligence.

(2)A retailer or distributor may enter into an agreement with a person (other than a small customer) varying or excluding the operation of subsection (1) and, to the extent of that agreement, that subsection does not apply.

(3)This section does not apply—

(a)to a distributor that is an electricity distribution network service provider or an officer or employee of such a distributor in relation to an act or omission in the performance or exercise, or purported performance or exercise, of a system operations function or power; or

(b)to any liability of an officer or employee of a body corporate to the body corporate.

(4)In this section—

electricity distribution network service provider means a regulated distribution network service provider within the meaning of the NEL;

partial or total failure to supply energy includes a defective supply of energy;

system operations function or power has the same meaning as in section 119 of the NEL.

317   Distributor—retailer mutual indemnity

(1)Subject to section 316 and any applicable laws, if a shared customer seeks to recover any loss or damage by action against a retailer in a court of competent jurisdiction, the distributor—

(a)indemnifies the retailer to the extent that the damage suffered by the customer arises from the act or omission of the distributor; but

(b)does so only to the extent that the act or omission arises from the negligence or breach of statutory duty of the distributor, its servants or agents or involves bad faith on the part of the distributor or its servants or agents.

(2)Subject to section 316 and any applicable laws, if a shared customer seeks to recover any loss or damage by action against a distributor in a court of competent jurisdiction, the retailer—

(a)indemnifies the distributor to the extent that the damage suffered by the customer arises from the act or omission of the retailer; but

(b)does so only to the extent that the act or omission arises from the negligence or breach of statutory duty of the retailer, its servants or agents or involves bad faith on the part of the retailer or its servants or agents.

318   Immunity in relation to personal liability of AEMC officials

(1)No personal liability attaches to an AEMC official for an act or omission in good faith in the performance or exercise, or purported performance or exercise of a function or power under this Law, the National Regulations or the Rules.

(2)A liability that would, but for subsection (1), lie against an AEMC official lies instead against the AEMC.

(3)In this section—

AEMC official means—

(a)a member of the AEMC;

(b)the chief executive of the AEMC;

(c)a member of staff appointed by the AEMC.

319   Giving of notices and other documents under Law or Rules

(1)If this Law or the Rules require or permit a notice or other document to be served on a person (whether the expression “deliver”, “give”, “notify” or “send” or another expression is used), the notice or other document may be served—

(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.

320   Law 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.

321   Penalty 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.

322   Court 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.

Schedule 1 Savings and transitionals

Part 1    Transitional provision related to AEMC rule making powers

1   AEMC 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 2    Transitional provision related to stand-alone power systems

2   Transitional 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 3    Savings and transitional provisions related to Ministerial Council on Energy amendments

2A   Definitions

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.

3   References 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.

4   Rights 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.

5   Rights 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.

6   Saving 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 4    Transitional provisions related to national energy retail objective amendments

7   Definitions

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).

8   When 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.

9   Application 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.

10   Administrative 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).

11   Administrative guidance about value of greenhouse gas emissions

(1)This clause applies—

(a)administrative if 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.

12   Validation 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 5    Transitional provisions related to other gas amendments

13   Definition

In this Part—

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

14   Retailer 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.

15   Exempt 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.

16   RoLR 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.