National Energy Retail Law (South Australia) Act 2011 (SA)

South Australia National Energy Retail Law (South Australia) Act 2011 An Act to establish a national energy customer framework for the regulation of the retail supply of energy to customers; to make provision for the relationship between the distributors of energy and the consumers of energy; and for other purposes.

Contents Part 1—Preliminary 1 Short title 2 Commencement 3 Interpretation Part 2—Application of National Energy Retail Law 4 Application of National Energy Retail Law 5 Application of regulations under National Energy Retail Law 6 Interpretation of certain expressions 7 Exclusion of legislation of this jurisdiction Part 3—Related matters 8 Conferral of functions and powers on Commonwealth bodies to act in this jurisdiction 9 Extension of reading‑down provision 10 Regulation‑making power for purposes of National Retail Energy Law (South Australia) Part 4—Provisions applying in South Australia as host jurisdiction 11 Interpretation 12 Regulations 13 Minister authorised to exercise powers under the national scheme 14 Exclusion of legislation of this jurisdiction Part 5—Implementation of national law in South Australia Division 1—Preliminary 15 Preliminary Division 2—Application of law—electricity 16 Application of law—electricity Division 3—South Australian arrangements 17 Consumption thresholds 18 Standing offer prices 19 Small market offer customers 21 Retailer of last resort scheme 22 Small compensation claims regime 23 Minimum standards of service for customers 24 Late payment fees 25 Immunity in relation to failure to supply electricity Division 4—Miscellaneous 26 Application of Essential Services Commission Act 2002 27 Delegation by Minister 28 Extension of AER functions and powers 29 Regulations 30 Review Part 6—Validation of instruments and decisions of AER—energy retail laws 31 Validation of instruments and decisions made by AER 32 AER—authorisation of preparatory steps Part 7—Transitional provisions 33 Interpretation 34 Conditions—exempt entities 35 Customer contracts—electricity 36 Customer connection contracts—electricity 37 Customer contracts—gas 38 Customer connection contracts—gas 39 Complaints and dispute resolution 40 Provision of information and assistance by Commission 41 Transitional regulation‑making power Schedule—National Energy Retail Law Part 1—Preliminary Division 1—Citation and interpretation 1 Citation 2 Interpretation 2A Natural gas equivalent 3 Application of Law, National Regulations and Rules in this jurisdiction 3A Application to prescribed covered gas 4 Meaning of civil penalty provision and conduct provision 4A Civil penalty amounts for breaches of civil penalty provisions 5 Meaning of customer and associated terms 6 Provisions relating to consumption thresholds for business customers 7 Classification and reclassification of customers 7A Related bodies corporate 8 Interpretation generally 8A Savings and transitionals Division 2—Matters relating to participating jurisdictions 9 Participating jurisdictions 10 Ministers of participating jurisdictions 11 Local area retailers 12 Nominated distributors Division 3—National energy retail objective and policy principles 13 National energy retail objective 13AA National Regulations may prescribe matters for national energy retail objective 13A Innovative trial principles 14 MCE statements of policy principles Division 4—Operation and effect of National Energy Retail Rules 15 Rules to have force of law Division 5—Application of this Law and the Rules to forms of energy 16 Application of Law and Rules to energy Division 6—Miscellaneous 17 Extraterritorial operation of Law 18 Law binds the State Part 2—Relationship between retailers and small customers Division 1—Preliminary 19 Application of this Part Division 2—Customer retail contracts generally 20 Kinds of customer retail contracts Division 3—Standing offers and standard retail contracts for small customers 21 Model terms and conditions 22 Obligation to make offer to small customers 23 Standing offer prices 24 Presentation of standing offer prices 25 Adoption of form of standard retail contract 26 Formation of standard retail contract 27 Obligation to comply with standard retail contract 28 Variation of standard retail contract 29 Standard retail contract to be consistent with model terms and conditions 30 Duration of standard retail contract 31 Satisfaction of designated retailer's obligation to make standing offer by making market offer to certain small customers 32 Rules Division 4—Market retail contracts for small customers 33 Formation of market retail contracts 34 Minimum requirements for market retail contracts 35 Variation of market retail contract 36 Market retail contract to be consistent with minimum requirements of the Rules 37 Presentation of market offer prices Division 5—Explicit informed consent 38 Requirement for explicit informed consent for certain transactions 39 Nature of explicit informed consent 40 Record of explicit informed consent 41 No or defective explicit informed consent 42 Rules Division 6—Customer hardship 43 Customer hardship policies 44 Minimum requirements for customer hardship policy 45 Approval of customer hardship policy or variation 46 Obligation of retailer to communicate customer hardship policy 47 General principle regarding de‑energisation (or disconnection) of premises of hardship customers 48 Consistency of market retail contract with hardship policy 49 Rules Division 7—Payment plans 50 Payment plans 51 Debt recovery 52 Rules Division 8—Energy marketing 53 Energy Marketing Rules Division 9—Deemed customer retail arrangements 54 Deemed customer retail arrangement for new or continuing customer without customer retail contract 55 Terms and conditions of deemed customer retail arrangements Division 10—Prepayment meter systems 56 Use of prepayment meter systems only in jurisdictions where permitted 57 Contractual arrangements for use of prepayment meter systems 58 Use of prepayment meter systems to comply with energy laws 59 Persons on life support equipment 60 Rules Division 11—AER Retail Pricing Information Guidelines and price comparator 61 AER Retail Pricing Information Guidelines for presentation of standing and market offer prices 62 Price comparator 63 AER information gathering powers for pricing guidelines and comparator Division 12—Large customers—responsibility for energy consumed 64 Large customer consuming energy at premises Part 3—Relationship between distributors and customers Division 1—Preliminary 65 Application of this Part Division 2—Obligation to provide customer connection services 66 Obligation to provide customer connection services Division 3—Customer connection contracts generally 67 Kinds of customer connection contracts Division 4—Deemed standard connection contracts 68 Model terms and conditions 69 Adoption of form of deemed standard connection contract 70 Formation of deemed standard connection contract 71 Obligations to comply with deemed standard connection contract and to bill retailer 72 Variation of deemed standard connection contract 73 Deemed standard connection contract to be consistent with model terms and conditions 74 Duration of deemed standard connection contract Division 5—Deemed AER approved standard connection contracts 75 Submission and approval of form of standard connection contracts for large customers 76 Formation of deemed AER approved standard connection contract 77 Amendment and replacement of form of deemed AER approved standard connection contract Division 6—Negotiated connection contracts 78 Negotiated connection contracts Part 4—Small customer complaints and dispute resolution 79 Definitions 80 Role of energy ombudsman 81 Standard complaints and dispute resolution procedures 82 Complaints made to retailer or distributor for internal resolution 83 Complaints made or disputes referred to energy ombudsman 84 Functions and powers of energy ombudsman 85 Information and assistance requirements 86 Retailers and distributors to be members of scheme 87 Rules Part 5—Authorisation of retailers and exempt seller regime Division 1—Prohibition on unauthorised selling of energy 88 Requirement for authorisation or exemption Division 2—Application for and issue of retailer authorisation 89 Applications 90 Entry criteria 91 Public notice and submissions 92 Deciding application 93 Conditions 94 Notice of decision to grant application 95 Deemed refusal 96 Issue and public notice of retailer authorisation 96A Retailer authorisation may be held jointly 97 Notice of refusal 98 Duration of retailer authorisation 99 Variation of retailer authorisation 100 Form of energy authorised to be sold Division 3—Transfer of retailer authorisation 101 Transfer only by application 102 Applying for transfer 103 Deciding transfer application 104 Application of application process to transfers 104A Change in legal structures Division 4—Surrender of retailer authorisation 105 Surrender of retailer authorisation 106 Transfer of customers following surrender Division 5—Revocation of retailer authorisation 107 Power to revoke retailer authorisation 108 Transfer of customers following revocation Division 6—Exemptions 109 Definitions 110 Power to exempt 111 Power to revoke exemption 112 Conditions 113 Rules 114 Manner in which AER performs AER exempt selling regulatory functions or powers 115 Exempt seller related factors 116 Customer related factors Division 7—Miscellaneous 117 AER Retailer Authorisation Guidelines 118 AER Exempt Selling Guidelines 119 Public Register of Authorised Retailers and Exempt Sellers 120 Revocation process—retailer authorisations and exemptions Part 5A—AER trial waiver functions 121A Definitions 121B Interpretative matters 121C Trial waiver 121D Conditions of trial waiver 121E Consultation on trial waiver 121F Publication etc of trial waiver 121G Duration of trial waiver 121H Extension of trial waiver 121I Compliance with trial waiver 121J Revocation of trial waiver 121K Other matters Part 6—Retailer of last resort scheme Division 1—Preliminary 121 Purpose of this Part 122 Definitions Division 2—Registration of RoLRs 123 RoLR criteria 124 Expressions of interest for registration as a RoLR 125 Appointment and registration as a default RoLR 126 Registration of additional RoLRs 127 Register of RoLRs 128 Termination of registration as a RoLR 129 New basis for registration as a RoLR Division 3—Contingency events 130 AER's powers 131 Confidentiality provisions Division 4—Appointment of designated RoLRs 132 Designation of registered RoLR for RoLR event 133 Criteria for RoLR designation 134 Appointment of more than one designated RoLR for RoLR event 135 AER RoLR Guidelines Division 5—Declaration of RoLR event 136 Issue of RoLR notice 137 RoLR notice—direction for gas 138 Service and publication of RoLR notice 139 Publication requirements for RoLR events 140 Transfer of responsibility 141 Termination of customer retail contracts 142 Revocation of retailer authorisation 143 Compliance requirements following service of RoLR notice 144 RoLR Procedures Division 6—Arrangements for sale of energy to transferred customers 145 Contractual arrangements for sale of energy to transferred small customers 146 Contractual arrangements for sale of energy to transferred large customers 147 Duration of arrangements for small customers 148 Duration of arrangements for large customers Division 7—Information requirements Subdivision 1—Preliminary 149 Operation of this Division Subdivision 2—General obligation to notify AER 150 Information to be provided to AER by AEMO and retailers Subdivision 3—Serving and making of RoLR regulatory information notices 151 Meaning of RoLR regulatory information notice 152 Service of RoLR regulatory information notice Subdivision 4—Form and content of RoLR regulatory information notices 153 Form and content of RoLR regulatory information notice 154 Further provision about the information that may be described in a RoLR regulatory information notice 155 Further provision about manner in which information must be provided Subdivision 5—Compliance with RoLR regulatory information notices 156 Compliance with RoLR regulatory information notices 157 Provision of information obtained from RoLR regulatory information notice Subdivision 6—General 158 Providing false or misleading information 159 Person cannot rely on duty of confidence to avoid compliance with RoLR regulatory information notice 160 Legal professional privilege not affected 161 Protection against self-incrimination Division 8—RoLR plans 162 RoLR plans 163 Contents of RoLR plans Division 9—RoLR cost recovery schemes 164 Operation of this Division, schemes and determinations 165 RoLR cost recovery 166 RoLR cost recovery schemes 167 RoLR cost recovery scheme distributor payment determination 168 Amendment of schemes and determinations Division 10—Miscellaneous 169 Information to be included in customer retail contracts 170 Application for retailer authorisation by failed retailer or associate 171 Reimbursement of insolvency official 172 AER report on RoLR event 173 Immunity 174 Authorised disclosure of information 175 Corporations Act displacement Part 7—Small compensation claims regime Division 1—Preliminary 176 Small compensation claims regime 177 Definitions 178 Claimable incidents—meaning 179 Compensable matters—meaning 180 Maximum amount—meaning 181 Minimum amount—meaning 182 Median amount—meaning 183 Repeat claimant—meaning 184 AER determinations of minimum amount, median amount and repeated claims maximum number Division 2—Compensation generally 185 When compensation is payable 186 Duty of distributor to provide information and advice Division 3—Claims process 187 Making of claims 188 Claims for less than the minimum amount 189 Claims for more than the maximum amount 190 Confirmation of claims involving property damage 191 Claims for amounts within the mandatory range 192 Claims for amounts in the discretionary range 193 Claims by repeat claimants 194 Distributor to reimburse customer for reasonable costs of claim 195 Rejection of claims 196 Distributor to advise customer of reasons for reducing or rejecting claim and of review rights 197 Small customer complaint or dispute resolution Division 4—Payment of compensation 198 Method of payment 199 Finality of payment of compensation Division 5—Miscellaneous 200 Other remedies 201 Payment of compensation not to be admission of fault, negligence or bad faith 202 Requirement to keep records on regime activities 203 Rules Part 8—Functions and powers of the Australian Energy Regulator Division 1—General 204 Functions and powers of AER (including delegations) 205 Manner in which AER performs AER regulatory functions or powers Division 2—General information gathering powers 206 Power to obtain information and documents Division 3—Disclosure of confidential information held by AER 207 Confidentiality 208 Authorised disclosure of information given to AER in confidence 209 Disclosure with prior written consent is authorised 210 Disclosure for purposes of court and tribunal proceedings and to accord natural justice 210A Disclosure of information to Energy Security Board 211 Disclosure of information given to AER with confidential information omitted 212 Disclosure of information given in confidence does not identify anyone 213 Disclosure of information that has entered the public domain 214 Disclosure of protected information authorised if detriment does not outweigh public benefit Division 4—Miscellaneous matters 215 Consideration by the AER of submissions or comments made to it under this Law or the Rules 216 Use of information provided under a notice under Division 2 217 AER to inform certain persons of decisions not to investigate breaches, institute proceedings or serve infringement notices 218 AER Guidelines 219 Single documentation 220 Use of information Part 9—Functions and powers of the Australian Energy Market Commission Division 1—General 221 Functions and powers of the AEMC 222 Delegations 223 Confidentiality 224 AEMC must have regard to national energy retail objective 224A Targets statement for greenhouse gas emissions targets 225 AEMC must have regard to MCE statements of policy principles in relation to Rule making and reviews Division 2—Rule making functions and powers of the AEMC 226 Rule making powers Division 3—Committees, panels and working groups of the AEMC 227 Establishment of committees and panels and working groups Division 4—MCE directed reviews 228 MCE directions 229 Terms of reference 230 Notice of MCE directed review 231 Conduct of MCE directed review Division 5—Other reviews 232 Reviews by AEMC Division 6—Miscellaneous 233 Fees 234 Confidentiality of information Part 10—National Energy Retail Rules Division 1—General Subdivision 1—Interpretation 235 Definitions Subdivision 2—Rule making test 236 Application of national energy retail objective 236A AEMC must take into account innovative trial principles in certain cases Division 2—National Energy Retail Rules generally 237 Subject matters of Rules Division 3—Minister initiated National Energy Retail Rules Subdivision 1—Initial Rules made by Minister 238 South Australian Minister to make initial National Energy Retail Rules 238AA South Australian Minister to make initial Rules relating to regulatory sandboxing 238A South Australian Minister may make initial Rules related to consumer protections and smart meters 238AB South Australian Minister may make initial Rules relating to stand‑alone power systems 238AC South Australian Minister may make initial Rules relating to national energy retail objective 238AD South Australian Minister to make initial Rules relating to other gases Subdivision 2—Rules made by Minister from time to time 238B South Australian Minister may make Rules on recommendation of MCE and Energy Security Board Division 4—Subsequent Rules and rule amendment procedure 239 Subsequent rule making by AEMC 240 Rules relating to MCE or Ministers of participating jurisdictions require MCE consent 241 AEMC must not make Rules that create criminal offences or impose civil penalties for breaches 242 Documents etc applied, adopted and incorporated by Rules to be publicly available 243 Initiation of making of a Rule 244 AEMC may make more preferable Rule in certain cases 245 AEMC may make Rules that are consequential to a Rule request 246 Content of requests for Rules 247 Waiver of fee for Rule requests 248 Consolidation of 2 or more Rule requests 249 Initial consideration of request for Rule 250 AEMC may request further information from Rule proponent in certain cases 251 Notice of proposed Rule 252 Publication of non-controversial or urgent final Rule determination 252A Publication of final Rule determination for trial Rule 253 "Fast track" Rules where previous public consultation by energy regulatory body or an AEMC review 254 Right to make written submissions and comments 255 AEMC may hold public hearings before draft Rule determination 256 Draft Rule determinations 257 Right to make written submissions and comments in relation to draft Rule determination 258 Pre-final Rule determination hearings 259 Final Rule determination 260 Proposal to make more preferable Rule 261 Making of Rule 262 Operation and commencement of Rule 262A Extension of trial Rule 262B AEMC may impose requirements on proponent of trial project on making trial Rule 262C AEMC may revoke trial Rule on recommendation of AER 262D Special provision for revocation of trial Rule 263 Rule that is made to be published on website and made available to the public 264 AEMC must publish and make available up to date versions of Rules 265 Evidence of the National Energy Retail Rules Division 5—Miscellaneous provisions relating to Rule making by the AEMC 266 Extensions of periods of time in Rule making procedure 267 AEMC may extend period of time for making of final Rule determination for further consultation 268 AEMC may publish written submissions and comments unless confidential 269 AEMC must publicly report on Rules not made within 12 months of public notification of requests Part 11—National Energy Retail Regulations 270 General regulation-making power for this Law 271 Specific regulation‑making power Part 12—Compliance and performance Division 1—AER compliance regime 272 Obligation of AER to monitor compliance 273 Obligation of regulated entities to establish arrangements to monitor compliance 274 Obligation of regulated entities to provide information and data about compliance 275 Compliance audits by AER 276 Compliance audits by regulated entities 277 Carrying out of compliance audits 278 Cost of compliance audits 279 Compliance reports 280 Contents of compliance reports 281 AER Compliance Procedures and Guidelines Division 2—AER performance regime 282 Obligation of regulated entities to provide information and data about performance 283 Performance audits—hardship 284 Retail market performance reports 285 Contents of retail market performance reports 286 AER Performance Reporting Procedures and Guidelines 287 Hardship program indicators Part 13—Enforcement Division 1—Enforceable undertakings 288 Enforceable undertakings Division 2—Proceedings generally 289 Instituting civil proceedings under this Law 290 Time limit within which proceedings may be instituted Division 3—Proceedings for breaches of this Law, the National Regulations or the Rules 291 AER proceedings for breaches of this Law, the National Regulations or the Rules that are not offences 292 Proceedings for declaration that a person has breached a conduct provision 293 Actions for damages by persons for breach of conduct provision Division 4—Matters relating to breaches of this Law, the National Regulations or the Rules 294 Matters for which there must be regard in determining amount of civil penalty 295 Breach of a civil penalty provision is not an offence 296 Breaches of civil penalty provisions involving continuing failure 297 Conduct in breach of more than one civil penalty provision 298 Persons involved in breach of civil penalty provision or conduct provision 299 Attempt to breach a civil penalty provision 300 Civil penalties payable to the Commonwealth 300A Indexation of civil penalty amounts 300B Indexation of criminal penalties Division 5—Judicial review of decisions under this Law, the National Regulations and the Rules 301 Definition 302 Applications for judicial review of decisions of the AEMC Division 6—Further provision for corporate liability for breaches of this Law 303 Definition 304 Offences and breaches by corporations 305 Corporations also in breach if officers and employees are in breach Division 7—Application of provisions of NGL 306 Tribunal review of information disclosure decision 307 Costs in a review 308 Infringement notices 309 Search warrants Part 14—Evidentiary matters Division 1—Publication on websites 310 Definitions 311 Publication of decisions on websites Division 2—Evidentiary certificates 312 Definitions 313 Evidentiary certificates—AER 314 Evidentiary certificates—AEMC Division 3—Time of commencement of a Rule 315 Time of commencement of a Rule Part 15—General 316 Immunity in relation to failure to supply energy 317 Distributor—retailer mutual indemnity 318 Immunity in relation to personal liability of AEMC officials 319 Giving of notices and other documents under Law or Rules 320 Law and the Rules to be construed not to exceed legislative power of Legislature 321 Penalty privilege 322 Court may grant relief from liability Schedule 1—Savings and transitionals Part 1—Transitional provision related to AEMC rule making powers 1 AEMC rule making powers Part 2—Transitional provision related to stand‑alone power systems 2 Transitional provision related to stand‑alone power systems Part 3—Savings and transitional provisions related to Ministerial Council on Energy amendments 2A Definitions 3 References to Ministerial Council on Energy 4 Rights under certain change of law provisions in agreements or deeds not to be triggered 5 Rights under contracts etc 6 Saving of decisions etc Part 4—Transitional provisions related to national energy retail objective amendments 7 Definitions 8 When amended objective takes effect for particular matters 9 Application of national energy retail objective to particular matters in progress on start day 10 Administrative guidance for decisions under clause 9(3) 11 Administrative guidance about value of greenhouse gas emissions 12 Validation of things done in relation to Rules before commencement Part 5—Transitional provisions related to other gas amendments 13 Definition 14 Retailer authorisations 15 Exempt sellers 16 RoLR arrangements Legislative history