Northern Territory Numbered Acts Northern Territory Numbered ActsSection 3 and Parts 2 and 3
repeal, insert
(1) In this Act:
"access agreement", see clause 3 of the Network Access Code.
"access applicant", see clause 3 of the Network Access Code.
"access dispute", see clause 35 of the Network Access Code.
"AER "means the Australian Energy Regulator established by section 44AE of the Competition and Consumer Act 2010 (Cth).
"associate", in relation to a person, has the same meaning it would have under Part 1.2, Division 2 of the Corporations Act 2001, if sections 13, 16(2) and 17 did not form part of that Act.
"authorised person" means a person authorised under section 8A.
"award", see clause 3 of the Network Access Code.
"business day "means a day other than a Saturday, Sunday or a public holiday.
"civil penalty", see section 28.
"civil penalty provision" means a provision of this Act that is expressly stated to be a civil penalty provision.
"contributing service", for Part 3A, Division 3, see section 10B(1).
"customer", see section 4(1) of the Electricity Reform Act .
"economic regulatory determination" means a determination mentioned in section 6A.
"economic regulatory decision" means a decision (however described) of the regulator in the performance of a function mentioned in section 5A(b).
"electricity entity", see section 4(1) of the Electricity Reform Act .
"electricity network", see section 4(1) of the Electricity Reform Act .
"general regulatory information order", see section 10C.
"infringement notice" means a notice served under section 36.
"Infringement penalty", see section 38.
"NAC electricity network", see section 4A.
"National Electricity Law" means the National Electricity Law set out in the Schedule to the National Electricity (South Australia) Act 1996 (SA) as in force for the time being.
"National Electricity Regulations" means the regulations in force for the time being under Part 4 the National Electricity (South Australia) Act 1996 (SA).
"National Electricity Rules", see section 2(1) of the National Electricity Law.
"Network Access Code" means the Electricity Networks (Third Party Access) Code set out in the Schedule as amended by the Regulations as mentioned in section 4B.
"network participant" means a network provider, network user or system controller.
"network pricing determination" means a determination made by the regulator under Chapter 6 of the Network Access Code.
"network provider", see section 4(1) of the Electricity Reform Act .
"network services", see section 4(1) of the Electricity Reform Act .
"network user", see section 4(1) of the Electricity Reform Act .
"offence provision" means a provision of this Act the breach or contravention of which by a person exposes that person to a finding of guilt by a court.
"officer", in relation to a body corporate, has the same meaning as officer has in relation to a corporation under section 9 of the Corporations Act 2001.
"performance report" means a report prepared by the regulator under section 13A.
publish on the regulator's website, see section 52.
"regulator" means the AER.
"regulatory information instrument" means a general regulatory information order or a regulatory information notice.
"regulatory information notice", see section 10D.
"related provider", for Part 3A, Division 3, see section 10A.
"service standard" means a standard imposed under this Act or the Electricity Reform Act relating to the standard of services to be provided by a network provider.
"system controller", see section 4(1) of the Electricity Reform Act .
(2) To avoid doubt, in this Act this Act includes the Network Access Code.
(1) This Act binds the Crown in right of the Territory and, to the extent the legislative power of the Legislative Assembly permits, the Crown in all its other capacities.
(2) However, nothing in this Act makes the Crown:
(a) liable to be prosecuted for an offence; or
(b) liable to a civil penalty that may be imposed for breach of a civil penalty provision.
(3) Subsection (2) does not apply to an authority of the Territory that is an electricity entity.
(1) A network participant in relation to an NAC electricity network must comply with all of the following:
(a) the Network Access Code;
(b) a network pricing determination;
(c) any other economic regulatory determination made under the Network Access Code;
(d) an order or direction (however described) made or given by the regulator under the Network Access Code.
(2) This section is a civil penalty provision.
(1) A network participant to whom a determination made under section 6B applies must comply with the determination.
(2) This section is a civil penalty provision.
The Network Access Code applies in relation to an electricity network that is prescribed by the Minister, by Gazette notice, to be an electricity network to which the Network Access Code applies (an NAC electricity network ).
Regulations may amend the Network Access Code.
The Minister may, by Gazette notice, prescribe matters:
(a) required or permitted by the Network Access Code to be prescribed; or
(b) necessary or convenient to be prescribed for carrying out or giving effect to the Network Access Code.
The regulator has the following functions:
(a) the monitoring and enforcement of compliance with this Act, including by:
(i) investigating breaches or possible breaches of this Act (including offence provisions); and
(ii) instituting and conducting proceedings:
(A) in relation to breaches of this Act (including offences and civil penalty provisions); or
(B) otherwise contemplated by this Act; or
(C) under section 44AAG of the Competition and Consumer Act 2010 (Cth);
(iii) instituting and conducting appeals from decisions in proceedings mentioned in subparagraph (ii);
(b) the economic regulation of the electricity network industry through the use of:
(i) network pricing determinations under Chapter 6 of the Network Access Code; and
(ii) price regulation determinations under section 6B; and
(iii) other determinations under the Network Access Code; and
(iv) performance reports;
(c) any other functions conferred on the regulator by this Act.
In performing its functions under this Act, the regulator must have regard to the need:
(a) to promote competitive and fair market conduct; and
(b) to prevent misuse of monopoly or market power; and
(c) to facilitate entry into relevant markets; and
(d) to promote economic efficiency; and
(e) to ensure consumers benefit from competition and efficiency; and
(f) to protect the interests of consumers with respect to reliability and quality of services and supply; and
(g) to promote the financial viability of the electricity networks industry; and
(h) to ensure an appropriate rate of return on the assets forming part of an electricity network.
In the performance of its functions under this Act the regulator is not subject to the direction or control of the Minister.
The regulator has power to do all things necessary or convenient to be done for, or in connection with, the performance of its functions.
(1) Without limiting section 59 of the Interpretation Act , this Act is not to be construed as imposing a duty on the regulator to perform a function or exercise a power if the imposition of the duty would exceed the legislative power of the Legislative Assembly.
(2) In particular, if a provision of this Act appears to impose a duty on the regulator to perform a function or exercise a power in matters or circumstances in which the assumption of the duty cannot be validly authorised under the law of the Commonwealth, or is otherwise ineffective, the provision is to be construed as if its operation were expressly confined to:
(a) acts or omissions of corporations to which section 51(xx) of the Constitution of the Commonwealth applies; or
(b) acts or omissions taking place in the course of, or in relation to, trade or commerce between the Territory and places outside the Territory (whether within or outside Australia); or
(c) acts or omissions taking place outside Australia, or in relation to things outside Australia.
(3) This section does not limit the effect that a provision of this Act would validly have apart from this section.
(1) The regulator may delegate any of its powers and functions under this Act to a person.
(2) Any delegation by the AER under section 44AAH of the Competition and Consumer Act 2010 (Cth) that is relevant to the regulator's powers and functions under this Act extends to, and has effect for the purposes of, this Act.
(1) The regulator may make guidelines:
(a) that are required or permitted to be made by this Act; or
(b) otherwise in relation to the performance of its functions under this Act.
(2) If:
(a) the AER has prepared guidelines under the National Electricity Law ( NEL guidelines ) in relation to the exercise of a power or performance of a function under that Law; and
(b) the regulator has a comparable power or function under this Act;
the NEL guidelines apply (with any necessary modifications) in relation to the regulator's exercise of the power or performance of the function under this Act.
(3) If there is an inconsistency between NEL guidelines applying under subsection (2) and any guidelines under subsection (1), the NEL guidelines prevail to the extent of the inconsistency.
(4) The regulator must publish guidelines made under this section on its website.
The regulator may publish statements and reports in relation to the performance of its functions.
(1) The regulator may make network pricing determinations in accordance with Chapter 6 of the Network Access Code.
(2) The regulator may make any of the following:
(a) price regulation determinations under section 6B;
(b) determinations (other than network pricing determinations) mentioned in the Network Access Code.
(1) The regulator may make a determination regulating prices and conditions for network services.
(2) This section applies subject to the provisions of the Network Access Code.
(3) The determination may regulate prices in any manner the regulator considers appropriate including any of the following:
(a) fixing a price or the rate of increase or decrease in a price;
(b) fixing a maximum price or maximum rate of increase or minimum rate of decrease in a maximum price;
(c) fixing an average price for specified goods or services or an average rate of increase or decrease in an average price;
(d) specifying pricing policies or principles;
(e) specifying an amount determined by reference to a general price index, the cost of production, a rate of return on assets employed or any other specified factor;
(f) specifying an amount determined by reference to quantity, location, period or other specified factor relevant to the supply of goods or services;
(g) fixing a maximum revenue, or maximum rate of increase or minimum rate of decrease in maximum revenue, in relation to specified goods or services.
(4) In making the determination, the regulator must have regard to the following:
(a) the costs of making, producing or supplying the goods or services;
(b) the costs of complying with laws or regulatory requirements;
(c) the return on assets in the electricity networks industry;
(d) any relevant interstate and international benchmarks for prices, costs and return on assets in comparable industries;
(e) the financial implications of the determination;
(f) any factors to which the regulator is required to have regard under the Network Access Code or Regulations under which the regulator is authorised to make the determination;
(g) any other factors the regulator considers relevant.
(5) In this section:
"price" includes a price range.
An economic regulatory determination must include a summary of the information on which it is based and a statement of the regulator's reasons for making the determination.
The regulator must:
(a) publish an economic regulatory determination on its website; and
(b) make copies of the determination available for public inspection at the regulator's public offices.
An economic regulatory determination:
(a) takes effect on the date on which it is published on the regulator's website or a later date specified in it; and
(b) has effect until it is revoked or until an expiry date specified in it.
If, under this Act, the regulator publishes a notice inviting submissions in relation to the making of an economic regulatory decision, the regulator, in making the decision:
(a) must consider every submission it receives within the period specified in the notice; and
(b) may, but need not, consider a submission it receives after the period specified in the notice expires.
(1) If the regulator is given information by any person in relation to a breach or a possible breach of this Act by a person but:
(a) decides not to investigate that breach or possible breach; or
(b) following an investigation, decides not to:
(i) institute any proceedings in respect of that breach or possible breach under Part 6; or
(ii) serve an infringement notice in accordance with Part 6, Division 5 in respect of that breach or possible breach;
the regulator must notify that person of that decision in writing.
(2) This section does not apply if the person gave the information to the regulator anonymously.
(1) A decision (however described) made under this Act by the regulator after the expiry of the period of time specified by this Act for making the decision is not to be taken to be an invalid decision only because the decision is not made within the specified period.
(2) A decision to which subsection (1) applies takes effect on the day it is made or any later day specified in it.
The Minister must table a copy of a report from the regulator under section 44AAJ of the Competition and Consumer Act 2010 (Cth) in the Legislative Assembly within 6 sitting days after the Minister receives the report.
(1) The regulator may, in writing, authorise a person that the regulator considers is suitably qualified or trained to be an authorised person for the purposes of this Division.
(2) An authorised person must comply with any direction of the regulator in exercising powers or functions as an authorised person.
(1) The regulator must issue an identity card to an authorised person.
(2) The identity card must contain the name, a recent photograph and the signature of the authorised person.
(3) An authorised person must carry the identity card at all times when exercising powers or performing functions as an authorised person.
(4) An authorised person must produce his or her identity card for inspection:
(a) before exercising a power as an authorised person; or
(b) at any time during the exercise of a power as an authorised person, if asked to do so.
If a person to whom an identity card has been issued ceases to be an authorised person, the person must return the identity card to the regulator as soon as practicable.
Maximum penalty: 10 penalty units.
(1) An authorised person may apply to a magistrate for the issue of a search warrant in relation to a particular place if the person:
(a) believes on reasonable grounds that:
(i) there is or has been or will be a breach of a provision of this Act; and
(ii) there is or may be a thing or things of a particular kind connected with that breach on or in that place; or
(b) reasonably suspects that:
(i) there may have been a breach of a provision of this Act; and
(ii) there is or may be a thing or things of a particular kind connected with that breach on or in that place.
(2) If a magistrate is satisfied by the evidence, on oath or by affidavit, of an authorised person that there are reasonable grounds for suspecting that there is, or may be within the next 7 days, a thing or things of a particular kind connected with a breach or possible breach of a provision of this Act on or in a place, the magistrate may issue a search warrant authorising an authorised person named in the warrant to do the following:
(a) enter the place specified in the warrant, with such assistance and by the use of such force as is necessary and reasonable;
(b) search the place or any part of the place;
(c) search for and seize a thing named or described in the warrant and which the person believes on reasonable grounds to be connected with the breach or possible breach of the provision;
(d) inspect, examine or record an image of anything in the place;
(e) take extracts from, and make copies of, any documents in the place;
(f) take into the place such equipment and materials as the person requires for exercising the powers.
(3) A search warrant issued under this section must state:
(a) the purpose for which the search is required and the nature of the suspected breach of the provision of this Act; and
(b) any conditions to which the warrant is subject; and
(c) whether entry is authorised to be made at any time of the day or night or during stated hours of the day or night; and
(d) a day, not later than 7 days after the issue of the warrant, on which the warrant ceases to have effect.
(4) Except as provided by this Act, the rules to be observed with respect to search warrants mentioned in any relevant laws of the Territory extend and apply to warrants under this section.
(1) This section applies if the occupier or another person who apparently represents the occupier is present at premises when a search warrant is being executed.
(2) The authorised person executing the warrant must:
(a) identify himself or herself to that person; and
(b) announce that he or she is authorised by the warrant to enter the place; and
(c) before using force to enter, give the person an opportunity to allow entry; and
(d) give the person a copy of the warrant.
(3) The authorised person executing the warrant is not entitled to exercise any powers under the warrant in relation to premises if the authorised person does not comply with subsection (2).
An authorised person executing a warrant need not comply with section 8E if he or she believes on reasonable grounds that immediate entry to premises is required to ensure:
(a) the safety of any person; or
(b) that the effective execution of the search warrant is not frustrated.
(1) If an authorised person executing a warrant retains possession of a document seized from a person in accordance with the warrant, the authorised person must give that other person, within 21 days of the seizure, a copy of the document certified as correct by the authorised person executing the warrant.
(2) A copy of a document certified under subsection (1) shall be received in all courts and tribunals as evidence of equal validity to the original.
(1) If an authorised person executing a warrant seizes a document or other thing in accordance with the warrant, the authorised person must if he or she is not a person employed by the regulator, give the document or other thing seized to the regulator.
(2) The regulator must take reasonable steps to return the document or thing to the person from whom it was seized if the reason for its seizure no longer exists.
(3) If the document or thing seized has not been returned within 3 months after it was seized, the regulator must take reasonable steps to return it unless:
(a) proceedings for the purpose for which the document or thing was retained have commenced within that 3 month period and those proceedings (including any appeal) have not been completed; or
(b) a magistrate makes an order under section 8J extending the period during which the document or thing may be retained.
(1) The regulator may apply to a magistrate:
(a) within 3 months after a document or other thing was seized in accordance with a warrant; or
(b) if an extension has been granted under this section, before the end of the period of the extension;
for an extension of the period for which the regulator may retain the document or thing but so that the total period of retention does not exceed 12 months.
(2) An application must be made before proceedings for the purpose for which the document or thing was retained have been commenced.
(3) A magistrate may order such an extension if he or she is satisfied that:
(a) it is in the interests of justice; and
(b) the total period of retention does not exceed 12 months; and
(c) retention of the document or other thing is necessary:
(i) for the purposes of an investigation into whether a breach of a provision of this Act has occurred; or
(ii) to enable evidence of a breach of a provision of this Act to be obtained for the purposes of a proceeding under this Act.
(4) If proceedings are commenced for the purpose for which the document or thing was retained at any time before the expiry of the period specified in an order under this section, the document or thing may be retained until those proceedings (including any appeal) have been completed despite those proceedings being completed after the period specified in the order.
(5) At least 7 days prior to the hearing of an application under this section by a magistrate, notice of the application must be given to the owner of the document or thing described in the application.
A person must not, without reasonable excuse, obstruct or hinder an authorised person in the exercise of a power under a search warrant under this Division.
Maximum penalty: 50 penalty units or imprisonment for 6 months.
(1) If the regulator has reason to believe that a person is capable of providing information or producing a document that the regulator requires for the exercise of a power or performance of a function under this Act, the regulator may, by notice in writing, serve on that person a notice (a relevant notice ).
(2) A relevant notice may require the person to:
(a) provide to the regulator, by writing signed by that person or, in the case of a body corporate, by a competent officer of the body corporate, within the time and in the manner specified in the notice, any information of the kind referred to in subsection (1); or
(b) produce to the regulator, or to a person specified in the notice acting on its behalf, in accordance with the notice, any documents of the kind referred to in subsection (1).
(3) A person who has been served with a relevant notice must comply with the notice unless the person has a reasonable excuse for not doing so.
(4) Subsection (3) is a civil penalty provision.
(5) Without limiting subsection (3), it is a reasonable excuse for failing to comply with the notice if the person is not capable of doing so.
(6) Without limiting subsection (3), it is a reasonable excuse for an individual to:
(a) fail to provide information of the kind referred to in subsection (1) to the regulator; or
(b) fail to produce a document of the kind referred to in subsection (1) to the regulator, or to a person specified in a relevant notice acting on behalf of the regulator;
if to do so might tend to incriminate the person, or make the person liable to a criminal penalty, under a law of the Territory or another jurisdiction in Australia.
(7) It is not a reasonable excuse for a person to:
(a) fail to provide information of the kind referred to in subsection (1) to the regulator; or
(b) fail to produce a document of the kind referred to in subsection (1) to the regulator, or to a person specified in a relevant notice acting on behalf of the regulator;
on the ground of any duty of confidence.
(8) This section does not require a person to:
(a) provide information that is the subject of legal professional privilege; or
(b) produce a document the production of which would disclose information that is the subject of legal professional privilege.
(9) This section does not require a person to:
(a) provide information that would disclose the contents of a document prepared for the purposes of a meeting of the Cabinet or a committee of the Cabinet of the Commonwealth or of a State or a Territory; or
(b) produce a document prepared for the purposes of a meeting of the Cabinet or a committee of the Cabinet of the Commonwealth or of a State or a Territory; or
(c) provide information, or produce a document, that would disclose the deliberations of the Cabinet or a committee of the Cabinet of the Commonwealth or of a State or a Territory.
(10) A person incurs, by complying with a relevant notice, no liability for breach of contract, breach of confidence or any other civil wrong.
In this Division:
"contributing service", see section 10B(1).
"related provider" means a person who supplies a contributing service to a network provider.
(1) A contributing service is a service that the regulator, in accordance with this section, decides is a service that contributes in a material way to the provision of a network service by a network provider.
(2) In deciding whether a service is a service that contributes in a material way to the provision of a network service by a network provider, the regulator must have regard to:
(a) the nature and kind of the service; and
(b) when the service was first supplied; and
(c) the nature and extent of the contribution of the service relative to:
(i) the network service; and
(ii) all other services supplied by the network provider; and
(d) whether the service was previously supplied:
(i) by the network provider; or
(ii) directly or indirectly by an associate of the network provider; and
(e) whether the service, together with other services, contributes in a material way to the provision of network services; and
(f) any other matter prescribed by the Regulations.
A general regulatory information order is an order made by the regulator in accordance with this Division that requires each network provider of a specified class, or each related provider of a specified class, to do either or both of the following:
(a) provide to the regulator the information specified in the order;
(b) prepare, maintain or keep information specified in the notice in a manner and form specified in the order.
A regulatory information notice is a notice prepared and served by the regulator in accordance with this Division that requires the network provider, or a related provider, named in the notice to do either or both of the following:
(a) provide to the regulator the information specified in the notice;
(b) prepare, maintain or keep information specified in the notice in a manner and form specified in the notice.
This Division does not limit the operation of Division 2.
(1) Subject to this Division, the regulator, if it considers it reasonably necessary for the exercise of a power or performance of a function under this Act, may:
(a) serve a regulatory information notice on a network provider or a related provider; or
(b) make a general regulatory information order.
(2) In considering whether it is reasonably necessary to serve a regulatory information notice, or make a general regulatory information order, the regulator must have regard to:
(a) the matter to be addressed by:
(i) the service of the regulatory information notice; or
(ii) the making of the general regulatory information order; and
(b) the likely costs that may be incurred by an efficient network provider or efficient related provider in complying with the notice or order.
(3) A regulatory information notice must not be served, or a general regulatory information order must not be made, solely for the purpose of:
(a) investigating breaches or possible breaches of provisions of this Act, including offences against this Act; or
(b) instituting and conducting proceedings in relation to breaches of provisions of this Act, including offences against this Act; or
(c) instituting and conducting appeals from decisions in proceedings referred to in paragraph (b); or
(d) collecting information for the preparation of a performance report.
(1) This section applies if the regulator is intending to:
(a) serve a regulatory information notice on a related provider; or
(b) make a general regulatory information order that will apply to a class of related providers.
(2) In addition to the matters set out in section 10F(2), the regulator, in considering whether it is reasonably necessary to serve the regulatory information notice, or make the general regulatory information order, must have regard to:
(a) whether the network provider being supplied a contributing service by the related provider or related providers to which the intended regulatory information instrument will apply can:
(i) provide the information to be specified in that instrument; or
(ii) prepare, maintain or keep the information to be specified in the particular manner and form to be specified in that instrument; and
(b) the extent to which the related provider or related providers to which the intended regulatory information instrument will apply is, or are, supplying a contributing service on a genuinely competitive basis; and
(c) the nature of any ownership or control between:
(i) the network provider being supplied a contributing service by a related provider to which the intended regulatory information instrument will apply; and
(ii) that related provider; and
(d) the nature of any ownership or control as between different related providers supplying the contributing service to the network provider; and
(e) any other matter the regulator considers relevant.
(3) For the purposes of subsection (2)(b), in considering whether a contributing service is being supplied on a genuinely competitive basis, the regulator may take into account:
(a) whether there is effective competition in the market for the supply of the contributing service; and
(b) whether the related provider supplies the contributing service to a network provider under a contract, arrangement or understanding entered into with that network provider following a competitive process for the awarding of the right to enter into that contract, arrangement or understanding involving persons who were not associates of the network provider.
The regulator must, in accordance with the Regulations, consult with the public in relation to the general regulatory information order it proposes to make before it makes that order.
(1) A general regulatory information order made under section 10F(1)(b) must be published on the regulator's website as soon as practicable after it is made.
(2) Notice of the making of a general regulatory information order must be published in a newspaper circulating generally throughout Australia as soon as practicable after the general regulatory information order is made.
(1) The regulator, before serving a regulatory information notice, must:
(a) notify, in writing, the network provider, or the related provider, on whom the regulator intends to serve the regulatory information notice of its intention to do so; and
(b) give the network provider or the related provider a draft of the regulatory information notice it intends to serve.
(2) If the regulatory information notice to be served is an urgent notice, the regulator must, in a notice under subsection (1):
(a) identify the regulatory information notice to be served as an urgent notice; and
(b) give its reasons, in writing, why the regulatory information notice to be served is an urgent notice.
(3) A regulatory information notice is an urgent notice if:
(a) under the notice the regulator will require the network provider or related provider to provide information to the regulator; and
(b) that requirement has arisen because the regulator considers it must deal with or address a particular matter or thing in order for it to make an economic regulatory decision; and
(c) the regulator considers that, having regard to the time within which it must make that economic regulatory decision, the time within which the regulator requires the information is of the essence.
(4) A notice under subsection (1) must:
(a) invite the network provider, or the related provider, to make written representations to the regulator as to whether the regulator should serve the regulatory information notice on them; and
(b) specify the period within which the network provider, or the related provider, may make the representations.
(5) The period that must be specified in accordance with subsection (4) must be:
(a) in the case of an urgent notice to be served – a period of not less than 5 business days and not more than 10 business days calculated from the date of the notice under subsection (1); and
(b) in all other cases – a period of at least 20 business days calculated from the date of the notice under subsection (1).
(6) The regulator must consider the written representations made in accordance with a notice under subsection (1) before making its decision in accordance with this Division to serve the regulatory information notice.
(1) A regulatory information instrument:
(a) must specify the information required to be:
(i) provided to the regulator; or
(ii) prepared, maintained or kept in the particular manner and form specified in the instrument; and
(b) may specify the manner and form in which the information described in the instrument is required to be:
(i) provided to the regulator; or
(ii) prepared, maintained or kept; and
(c) must state the reasons of the regulator for requiring the information described in the instrument to be:
(i) provided to the regulator; or
(ii) prepared, maintained or kept in the particular manner and form specified in the instrument; and
(d) in the case of an instrument requiring information to be provided to the regulator, must specify when the information must be provided.
(2) In the case of a regulatory information notice, the notice must name the network provider or the related provider to whom it applies.
(3) In the case of a general regulatory information order, the order must specify the class of network providers, or related providers, to whom the order applies.
Without limiting section 10L(1)(a), the information that may be required to be provided to the regulator, or to be prepared, maintained or kept, may include:
(a) historic, current and forecast information (including financial information);
(b) information that is or may be derived from other information in the possession or control of the network provider or the related provider to whom the instrument applies;
(c) information to enable the regulator to verify whether the network provider to whom the instrument applies is or has been complying with a requirement under this Act relating to:
(i) the operational and structural separation of the network provider's business; or
(ii) arrangements between the network provider and an associate that provides network services;
(d) information to enable the regulator to verify compliance with any requirements under this Act for the allocation of costs between services that are necessary or incidental to the supply of electricity to consumers, including network services and the generation and sale of electricity.
Without limiting section 10L(1)(b), a regulatory information instrument may require that the information specified in the instrument:
(a) be provided to the regulator, or prepared, maintained or kept, on an annual basis or some other basis, including on the occurrence of a specified event or a state of affairs;
(b) be provided to the regulator, or prepared, maintained or kept, in accordance with the Regulations;
(c) be provided to the regulator, or prepared, maintained or kept, in accordance with any document, code, standard, rule, specification or method formulated, issued, prescribed or published by the regulator or any person, authority or body whether:
(i) wholly or partially or as amended by the instrument; or
(ii) as formulated, issued, prescribed or published at the time the instrument is served or published or at any time before the instrument is served or published; or
(iii) as amended from time to time;
(d) be verified by way of statutory declaration by an officer of the network provider, or of a related provider, to whom the instrument applies;
(e) be audited:
(i) by a class of person specified in the instrument before it is provided to the regulator; and
(ii) at the expense of the network provider or related provider to whom the instrument applies.
Example for section 10N(c)
The regulator may require a network provider to provide information in a form and manner that complies with relevant accounting standards .
(1) On being served a regulatory information notice, a person named in the notice must comply with the notice.
(2) This section is a civil penalty provision.
(1) On publication of a general regulatory information order in accordance with section 10J(1), a person who is a member of the class of person to which a general regulatory information order applies must comply with the order.
(2) Subsection (1) does not apply to a person who has been given an exemption under section 10R.
(3) This section is a civil penalty provision.
(1) The regulator may exempt a person, or a class of person, from complying with section 10Q:
(a) unconditionally or on specified conditions; or
(b) wholly or to the extent as is specified in the exemption.
(2) An exemption under this section must be in writing.
(1) This section applies if:
(a) under a regulatory information instrument the regulator:
(i) requires a network provider to provide information to the regulator for the purpose of enabling the regulator to make an economic regulatory decision relating to the network provider; or
(ii) requires a related provider to provide information to the regulator that is relevant to the making of an economic regulatory decision relating to a network provider; and
(b) the network provider or related provider:
(i) does not provide the information to the regulator in accordance with the applicable regulatory information instrument; or
(ii) provides information that is insufficient (when compared to what was requested under the applicable regulatory information instrument).
(2) Without limiting sections 10P and 10Q and despite anything to the contrary in this Act, the regulator:
(a) may make the economic regulatory decision on the basis of the information the regulator has at the time it makes that decision; and
(b) in making that decision, may make reasonable assumptions (including assumptions adverse to the interests of the network provider) in respect of the matters the information required under the regulatory information instrument would have addressed had that information been provided as required.
(1) A person must not refuse to comply with a regulatory information instrument on the ground of any duty of confidence.
(2) A person incurs, by complying with a regulatory information instrument, no liability for breach of contract, breach of confidence or any other civil wrong.
A regulatory information instrument, and sections 10P and 10Q, are not to be taken as requiring a person to:
(a) provide to the regulator information that is the subject of legal professional privilege; or
(b) produce a document to the regulator the production of which would disclose information that is the subject of legal professional privilege.
(1) It is a reasonable excuse for an individual to whom section 10P applies not to comply with a regulatory information notice served on the person requiring the person to provide information to the regulator if to do so might tend to incriminate the person, or make the person liable to a criminal penalty, under a law of the Territory or another jurisdiction in Australia.
(2) It is a reasonable excuse for an individual to whom section 10Q applies not to comply with a general regulatory information order made requiring the person to provide information to the regulator if to do so might tend to incriminate the person, or make the person liable to a criminal penalty, under a law of the Territory or another jurisdiction in Australia.
A person must not give information that is misleading in a material particular to the regulator under this Act.
Maximum penalty: 200 penalty units or imprisonment for 2 years.
(1) A person ( person A ) must not cause, or threaten to cause, harm to another person ( person B ):
(a) with intent to discourage person B from cooperating with the regulator; or
(b) in retribution for person B's having cooperated with the regulator.
Maximum penalty: 400 penalty units or imprisonment for 2 years.
(2) For subsection (1)(b), it is immaterial whether person B intended to cooperate, or had cooperated, with the regulator.
(3) In this section:
cooperate with the regulator includes:
(a) complying with a requirement under this Part to give information to the regulator; and
(b) voluntarily providing information to the regulator.
The regulator may use information obtained by it:
(a) in the exercise of its powers or performance of its functions under Part 3A; or
(b) otherwise in connection with the administration of this Act;
for any purposes connected with the exercise of its powers or performance of its functions under this Act or the National Electricity (Northern Territory) (National Uniform Legislation) Act .
(1) Subject to this section, the regulator may prepare a report on the financial performance or operational performance of one or more network providers in providing network services.
(2) A report prepared under this section may:
(a) deal with the financial or operational performance of the network provider in relation to:
(i) complying with service standards; and
(ii) standards relating to the provision of network services to network users; and
(iii) the profitability of network providers in providing network services; and
(b) if the regulator considers it appropriate, deal with the performance of the network provider in relation to other matters or things if that performance is directly related to the performance by the regulator of a function mentioned in section 5A(b).
(3) A report prepared under this section may include:
(a) information provided to the regulator by a person in compliance with a regulatory information instrument; and
(b) in the case of a report dealing with the financial performance of one or more network providers, a comparison of the profitability of the network providers to which the report relates from the provision of network services by them.
(4) Before preparing a report under this section, the regulator must, in accordance with the Regulations, consult with the persons or bodies specified by the Regulations.
(5) The regulator may publish a report prepared under this section on its website.
Section 44AAF of the Competition and Consumer Act 2010 (Cth) has effect for the purposes of this Act as if it formed part of this Act.
Note for section 14A
Section 44AAF requires the AER to take all reasonable measures to protect from unauthorised use or disclosure information given to it in confidence or obtained by compulsion . Disclosure of information as required or permitted by a law of the Commonwealth, a State or Territory, is taken to be authorised use and disclosure of the information .
The regulator is authorised to disclose information given to it in confidence in, or in connection with, the exercise of its powers or performance of its functions under this Act subject to and in accordance with this Part.
The regulator is authorised to disclose information given to it in confidence if the regulator has the written consent to do so of:
(a) the person who gave the information; or
(b) the person from whom the person referred to in paragraph (a) received that information.
The regulator is authorised to disclose information given to it in confidence:
(a) for the purposes of civil or criminal proceedings; or
(b) for the purposes of according natural justice to a person affected by a decision (however described) of the regulator under this Act.
(1) This section applies if:
(a) in compliance with this Act or voluntarily, a person gives the regulator information in confidence; and
(b) that information is contained in a document with other information.
(2) The regulator may disclose the document with the information given in confidence omitted.
(3) The regulator must include a note at the place in the document from which the information given in confidence is omitted to the effect that that information has been omitted from the document.
The regulator is authorised to disclose the information given to it in confidence, in compliance with this Act or voluntarily, if:
(a) it does not disclose any elements of the information that could lead to the identification of the person to whom that information relates; or
(b) the manner in which it discloses the information does not identify the person to whom that information relates.
The regulator is authorised to disclose information given to it in confidence, in compliance with this Act or voluntarily, if the information is already in the public domain.
(1) Despite section 14E, 14F or 14G but subject to this section, the regulator is authorised to disclose information given to it in confidence after the restricted period if the regulator is of the opinion:
(a) that the disclosure of the information would not cause detriment to the person who has given it or to the person from whom that person received it; or
(b) that, although the disclosure of the information would cause detriment to such a person, the public benefit in disclosing it outweighs that detriment.
(2) Before disclosing the information, the regulator must give the person who gave the information:
(a) a written notice (an initial disclosure notice ) stating:
(i) that the regulator wishes to disclose the information, specifying the nature of the intended disclosure; and
(ii) that the regulator is of the opinion required by subsection (1); and
(iii) that the person, within the period specified in the notice, may make representations to the regulator not to disclose the information; and
(b) the regulator's decision, in writing, setting out the reasons why the regulator:
(i) wishes to make the disclosure; and
(ii) is of the opinion required by subsection (1).
(3) If the regulator is aware that the person who gave the information in turn received the information from another person and is aware of that other person's identity and address, the regulator must, before disclosing the information give that other person:
(a) a written notice (an initial disclosure notice ) stating:
(i) that the regulator wishes to disclose the information, specifying the nature of the intended disclosure; and
(ii) that the regulator is of the opinion required by subsection (1); and
(iii) that the person, within the period specified in the notice, may make representations to the regulator not to disclose the information; and
(b) the regulator's decision, in writing, setting out the reasons why the regulator:
(i) wishes to make the disclosure; and
(ii) is of the opinion required by subsection (1).
(4) The regulator must consider every representation made to it by a person given an initial disclosure notice within the time specified in the notice.
(5) The period of time specified in an initial disclosure notice must not be less than 5 business days after the date the initial disclosure notice is given to the person.
(6) If after considering the representations, the regulator wishes to disclose the information, the regulator must give the person given the initial disclosure notice:
(a) a written notice (a further disclosure notice ) stating:
(i) that the regulator wishes to disclose the information, specifying the nature of the intended disclosure; and
(ii) that the regulator is of the opinion required by subsection (1); and
(b) the regulator's decision, in writing, setting out the reasons why the regulator:
(i) wishes to make the disclosure; and
(ii) is of the opinion required by subsection (1).
(7) For the purposes of this section, the disclosure of anything that is already in the public domain at the time the regulator wishes to disclose it cannot cause detriment to any person referred to in subsection (2) or (3).
(8) In this section:
"restricted period" means a period of 5 business days after:
(a) an initial disclosure notice has been given under this section; or
(b) a further disclosure notice has been given under this section;
whichever is the later.
(1) A Territory authority is authorised to disclose to the regulator information in the possession of the Territory authority that is reasonably required by the regulator for the administration of this Act.
(2) The regulator may use the information for any purpose connected with the administration of this Act.
(3) The Territory authority may impose conditions to be complied with in relation to the information.
(4) If a person discloses information under this section in good faith:
(a) the person is not civilly or criminally liable for doing so; and
(b) the disclosure does not constitute a breach of any obligation of confidentiality.
(5) In this section:
"electricity Act" means one of the following:
(a) this Act;
(b) the Electricity Reform Act ;
(c) the Utilities Commission Act .
"Territory authority" means one of the following:
(a) the Utilities Commission;
(b) the electricity safety regulator (as defined in section 4(1) of the Electricity Reform Act );
(c) a Minister;
(d) the CEO of the Agency administering an electricity Act.
Note for section 14J
Under section 44AAF of the Competition and Consumer Act 2010 (Cth), the AER is authorised to disclose information to persons or bodies listed in that section or prescribed by regulations under that Act.