Australian Energy Market Act 2004

This Act may be cited as the Australian Energy Market Act 2004.

Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.

Note: This table relates only to the provisions of this Act as originally passed by the Parliament and assented to. It will not be expanded to deal with provisions inserted in this Act after assent.

Column 3 of the table contains additional information that is not part of this Act. Information in this column may be added to or edited in any published version of this Act.

In this Act, unless the contrary intention appears:

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

Australian Energy Regulator means the body established by section 44AE of the Competition and Consumer Act 2010.

coastal waters means so much of the scheduled area (within the meaning of the Offshore Petroleum and Greenhouse Gas Storage Act 2006) for Western Australia as consists of: the territorial sea; and the sea that is: on the landward side of the territorial sea; and not within the limits of Western Australia. For this purpose, assume that the breadth of the territorial sea of Australia had never been determined or declared to be greater than 3 nautical miles, but had continued to be 3 nautical miles.

the territorial sea; and

the sea that is:

on the landward side of the territorial sea; and

not within the limits of Western Australia.

For this purpose, assume that the breadth of the territorial sea of Australia had never been determined or declared to be greater than 3 nautical miles, but had continued to be 3 nautical miles.

Commonwealth Minister means the Minister administering this Act.

Economic Regulation Authority means the body established by section 4 of the Economic Regulation Authority Act 2003 of Western Australia.

federal tax-exempt matter has the meaning given by subsection 13D(2).

National Electricity (Commonwealth) Law means the provisions applying under section 6.

National Electricity (Commonwealth) Law and Regulations means:

the National Electricity (Commonwealth) Law; and

the National Electricity (Commonwealth) Regulations.

National Electricity (Commonwealth) Regulations means the provisions applying under section 7.

National Energy Retail Law and Regulations (Commonwealth) means:

the National Energy Retail Law (Commonwealth); and

the National Energy Retail Regulations (Commonwealth).

National Energy Retail Law (Commonwealth) means the provisions applying under section 11T.

National Energy Retail Regulations (Commonwealth) means the provisions applying under section 11U.

National Gas (Commonwealth) Law means the provisions applying under section 11A.

National Gas (Commonwealth) Law and Regulations means:

the National Gas (Commonwealth) Law; and

the National Gas (Commonwealth) Regulations.

National Gas (Commonwealth) Regulations means the provisions applying under section 11B.

natural gas has the same meaning as in the National Gas (Commonwealth) Law.

offshore area, in relation to a State or Territory, has the same meaning as in the Offshore Petroleum and Greenhouse Gas Storage Act 2006.

offshore Western Australian pipeline means a pipeline (within the meaning of the National Gas (Commonwealth) Law) for transporting natural gas from one or more points of origination in the offshore area of Western Australia to one or more points of termination in: Western Australia; or the coastal waters of Western Australia; but does not include a pipeline any part of which is situated in another State or in a Territory.

Western Australia; or

the coastal waters of Western Australia;

but does not include a pipeline any part of which is situated in another State or in a Territory.

Offshore Western Australian Pipelines (Commonwealth) Law means the provisions applying under section 11J.

Offshore Western Australian Pipelines (Commonwealth) Law and Regulations means:

the Offshore Western Australian Pipelines (Commonwealth) Law; and

the Offshore Western Australian Pipelines (Commonwealth) Regulations.

Offshore Western Australian Pipelines (Commonwealth) Regulations means the provisions applying under section 11K.

prescribed uniform energy law means a uniform energy law covered by paragraph (b) of the definition of uniform energy law.

South Australian Electricity Legislation means:

(a) the National Electricity Law set out in the Schedule to the National Electricity (South Australia) Act 1996 of South Australia as in force from time to time; and

any regulations, as in force from time to time, made under Part 4 of that Act.

The reference in paragraph (a) to the National Electricity Law set out in the Schedule to the National Electricity (South Australia) Act 1996 of South Australia as in force from time to time includes a reference to any Rules or other instruments, as in force from time to time, made or having effect under that Law.

South Australian Energy Retail Legislation means:

(a) the National Energy Retail Law set out in the Schedule to the National Energy Retail Law (South Australia) Act 2011 of South Australia, as amended from time to time; and

any regulations, as amended from time to time, made under Part 11 of the National Energy Retail Law.

The reference in paragraph (a) to the National Energy Retail Law set out in the Schedule to the National Energy Retail Law (South Australia) Act 2011 of South Australia, as amended from time to time, includes a reference to any Rules or other instruments, as amended from time to time, made or having effect under that Law.

South Australian Gas Legislation means:

(a) the National Gas Law set out in the Schedule to the National Gas (South Australia) Act 2008 of South Australia as in force from time to time; and

any regulations, as in force from time to time, made under Part 3 of that Act.

The reference in paragraph (a) to the National Gas Law set out in the Schedule to the National Gas (South Australia) Act 2008 of South Australia as in force from time to time includes a reference to any Rules or other instruments, as in force from time to time, made or having effect under that Law.

State/Territory electricity law means:

the South Australian Electricity Legislation as it applies as a law of South Australia; or

the South Australian Electricity Legislation as it applies as a law of another State; or

the South Australian Electricity Legislation as it applies as a law of the Australian Capital Territory or the Northern Territory.

State/Territory energy law means:

a State/Territory electricity law; or

a State/Territory gas law; or

a State/Territory energy retail law.

State/Territory energy retail law means:

the South Australian Energy Retail Legislation as it applies as a law of South Australia; or

the South Australian Energy Retail Legislation as it applies as a law of another State; or

the South Australian Energy Retail Legislation as it applies as a law of the Australian Capital Territory or the Northern Territory.

State/Territory gas law means:

the South Australian Gas Legislation as it applies as a law of South Australia; or

the South Australian Gas Legislation as it applies as a law of another State; or

the South Australian Gas Legislation as it applies as a law of the Australian Capital Territory or the Northern Territory; or

the Western Australian Gas Legislation as it applies as a law of Western Australia.

State/Territory tax-exempt matter has the meaning given by subsection 13E(2).

uniform energy law means:

the South Australian Electricity Legislation; or

the South Australian Gas Legislation; or

the Western Australian Gas Legislation; or

the South Australian Energy Retail Legislation; or

provisions of a law of a State or Territory that:

relate to energy; and

are prescribed by the regulations for the purposes of this subparagraph;

being those provisions as in force from time to time.

Western Australian Gas Legislation means:

(a) the National Gas Access (Western Australia) Law (within the meaning of the National Gas Access (WA) Act 2009 of Western Australia) as in force from time to time; and

any regulations, as in force from time to time, made under Part 3 of that Act.

The reference in paragraph (a) to the National Gas Access (Western Australia) Law (within the meaning of the National Gas Access (WA) Act 2009 of Western Australia) as in force from time to time includes a reference to any Rules or other instruments, as in force from time to time, made or having effect under that Law.

Each of the following:

this Act;

the National Electricity (Commonwealth) Law and Regulations;

the National Gas (Commonwealth) Law and Regulations;

the Offshore Western Australian Pipelines (Commonwealth) Law and Regulations;

the National Energy Retail Law and Regulations (Commonwealth);

a prescribed uniform energy law applied as a law of the Commonwealth;

binds the Crown in each of its capacities.

It is the intention of the Parliament that the operation of:

this Act; and

the National Electricity (Commonwealth) Law and Regulations; and

the National Gas (Commonwealth) Law and Regulations; and

the Offshore Western Australian Pipelines (Commonwealth) Law and Regulations; and

a prescribed uniform energy law applied as a law of the Commonwealth;

should, as far as possible, include operation in relation to the following:

(f) things situated in or outside Australia;

acts, transactions and matters done, entered into or occurring in or outside Australia;

things, acts, transactions and matters (wherever situated, done, entered into or occurring) that would, apart from this Act, be governed or otherwise affected by the law of a State, a Territory or a foreign country.

Note: Section 17 of the National Energy Retail Law (Commonwealth) provides for the extra-territorial operation of the National Energy Retail Law (Commonwealth).

This section applies in respect of any decision under:

the National Electricity (Commonwealth) Law; or

the National Electricity (Commonwealth) Regulations; or

the National Gas (Commonwealth) Law; or

the National Gas (Commonwealth) Regulations; or

the Offshore Western Australian Pipelines (Commonwealth) Law; or

the Offshore Western Australian Pipelines (Commonwealth) Regulations; or

the National Energy Retail Law (Commonwealth); or

the National Energy Retail Regulations (Commonwealth); or

(d) a prescribed uniform energy law applied as a law of the Commonwealth.

(2) For the purposes of applying the Administrative Decisions (Judicial Review) Act 1977 to such a decision, that decision is taken to be a decision made under an enactment within the meaning of the Administrative Decisions (Judicial Review) Act 1977.

A State/Territory energy law may confer functions or powers, or impose duties, on the Commonwealth Minister for the purposes of that law.

Note 1: Section 13C sets out when such a law imposes a duty on the Commonwealth Minister.

Note 2: Functions and powers conferred, and duties imposed, on the National Competition Council by a State/Territory energy law are dealt with under Competition and Consumer Act 2010.section 29BA of the

Note 3: Functions and powers conferred, and duties imposed, on the Australian Energy Regulator by a State/Territory energy law are dealt with under Competition and Consumer Act 2010.section 44AI of the

Note 4: Functions and powers conferred, and duties imposed, on the Australian Competition Tribunal by a State/Territory energy law are dealt with under Competition and Consumer Act 2010.section 44ZZM of the

Subsection (1) does not authorise the conferral of a function or power, or the imposition of a duty, by a State/Territory energy law to the extent to which:

the conferral or imposition, or the authorisation, would contravene any constitutional doctrines restricting the duties that may be imposed on the Commonwealth Minister; or

the authorisation would otherwise exceed the legislative power of the Commonwealth.

The Commonwealth Minister cannot perform a duty or function, or exercise a power, under a State/Territory energy law unless the conferral of the function or power, or the imposition of the duty, is in accordance with an agreement between the Commonwealth and the State or Territory concerned.

Application

This section applies if a State/Territory energy law purports to impose a duty on the Commonwealth Minister.

Note 1: Section 13C sets out when such a law imposes a duty on the Commonwealth Minister.

Note 2: Section 320 of a State/Territory energy retail law deals with the case where a duty purportedly imposed on the Commonwealth Minister under that law cannot be imposed by the State or Territory or the Commonwealth due to constitutional doctrines restricting such duties.

State or Territory legislative power sufficient to support duty

The duty is taken not to be imposed by this Act (or any other law of the Commonwealth) to the extent to which:

imposing the duty is within the legislative powers of the State or Territory concerned; and

imposing the duty by the law of the State or Territory is consistent with the constitutional doctrines restricting the duties that may be imposed on the Commonwealth Minister.

Note: If this subsection applies, the duty will be taken to be imposed by force of the law of the State or Territory (the Commonwealth having consented under section 13A to the imposition of the duty by that law).

Commonwealth legislative power sufficient to support duty but State or Territory legislative powers are not

If, to ensure the validity of the purported imposition of the duty, it is necessary that the duty be imposed by a law of the Commonwealth (rather than by the law of the State or Territory), the duty is taken to be imposed by this Act to the extent necessary to ensure that validity.

If, because of subsection (3), this Act is taken to impose the duty, it is the intention of the Parliament to rely on all powers available to it under the Constitution to support the imposition of the duty by this Act.

The duty is taken to be imposed by this Act in accordance with subsection (3) only to the extent to which imposing the duty:

is within the legislative powers of the Commonwealth; and

is consistent with the constitutional doctrines restricting the duties that may be imposed on the Commonwealth Minister.

Subsections (1) to (5) do not limit section 13A.

For the purposes of sections 13A and 13B, a State/Territory energy law imposes a duty on the Commonwealth Minister if:

the law confers a function or power on the Commonwealth Minister; and

the circumstances in which the function or power is conferred give rise to an obligation on the Commonwealth Minister to perform the function or to exercise the power.

No consequences arise, for the purposes of a prescribed law of the Commonwealth relating to taxation, in respect of:

a federal tax-exempt matter; or

anything done (including, for example, a transaction entered into or an instrument or document made, executed, lodged or given) because of, or arising out of, a federal tax-exempt matter.

In this Act:

federal tax-exempt matter means a transfer of assets or liabilities that the Commonwealth Minister and the Treasurer are satisfied is made:

for the purpose of ensuring that a person does not carry on a business of producing, purchasing or selling natural gas in breach of:

a State/Territory gas law; or

the National Gas (Commonwealth) Law; or

the National Gas (Commonwealth) Regulations; or

the Offshore Western Australian Pipelines (Commonwealth) Law; or

the Offshore Western Australian Pipelines (Commonwealth) Regulations; or

for the purpose of the separation of certain activities from other activities of a person as required by:

a State/Territory gas law; or

the National Gas (Commonwealth) Law; or

the National Gas (Commonwealth) Regulations; or

the Offshore Western Australian Pipelines (Commonwealth) Law; or

the Offshore Western Australian Pipelines (Commonwealth) Regulations;

and for no other purpose.

(3) In paragraph (a) of the definition of federal tax-exempt matter in subsection (2), natural gas has the same meaning as in the National Gas Law set out in the Schedule to the National Gas (South Australia) Act 2008 of South Australia.

Any stamp duty or other tax imposed by or under a law of a State or Territory is not payable in relation to:

a State/Territory tax-exempt matter; or

anything done (including, for example, a transaction entered into or an instrument or document made, executed, lodged or given) because of, or arising out of, a State/Territory tax-exempt matter.

In this Act:

State/Territory tax-exempt matter means a transfer of assets or liabilities that the Commonwealth Minister is satisfied is made:

for the purpose of ensuring that a person does not carry on a business of producing, purchasing or selling natural gas in breach of:

the National Gas (Commonwealth) Law; or

the National Gas (Commonwealth) Regulations; or

the Offshore Western Australian Pipelines (Commonwealth) Law; or

the Offshore Western Australian Pipelines (Commonwealth) Regulations; or

for the purpose of the separation of certain activities from other activities of a person as required by:

the National Gas (Commonwealth) Law; or

the National Gas (Commonwealth) Regulations; or

the Offshore Western Australian Pipelines (Commonwealth) Law; or

the Offshore Western Australian Pipelines (Commonwealth) Regulations;

and for no other purpose.

(3) In paragraph (a) of the definition of State/Territory tax-exempt matter in subsection (2), natural gas has the same meaning as in the National Gas Law set out in the Schedule to the National Gas (South Australia) Act 2008 of South Australia.

To avoid doubt, an instrument made or having effect under:

the National Electricity (Commonwealth) Law; or

the National Electricity (Commonwealth) Regulations; or

a prescribed uniform energy law applied as a law of the Commonwealth;

is taken not to be, and never to have been, a legislative instrument.

To avoid doubt, an instrument made or having effect under:

the National Gas (Commonwealth) Law; or

the National Gas (Commonwealth) Regulations; or

the Offshore Western Australian Pipelines (Commonwealth) Law; or

the Offshore Western Australian Pipelines (Commonwealth) Regulations;

is taken not to be a legislative instrument.

To avoid doubt, an instrument made or having effect under:

the National Energy Retail Law (Commonwealth); or

the National Energy Retail Regulations (Commonwealth);

is taken not to be a legislative instrument.

The Federal Court is invested with jurisdiction with respect to civil and criminal matters arising under:

the National Electricity (Commonwealth) Law and Regulations; or

the National Gas (Commonwealth) Law and Regulations; or

the National Energy Retail Law and Regulations (Commonwealth).

If a provision of:

the National Electricity (Commonwealth) Law; or

the National Gas (Commonwealth) Law; or

the National Energy Retail Law (Commonwealth);

whether expressly or by implication, authorises a civil or criminal proceeding to be instituted in the Federal Court in relation to a matter, that provision is taken to vest the Court with jurisdiction in that matter.

The Supreme Court of Western Australia is invested with jurisdiction with respect to civil and criminal matters arising under the Offshore Western Australian Pipelines (Commonwealth) Law and Regulations.

If a provision of the Offshore Western Australian Pipelines (Commonwealth) Law, whether expressly or by implication, authorises a civil or criminal proceeding to be instituted in the Supreme Court of Western Australia in relation to a matter:

that provision is taken to vest the Court with jurisdiction in that matter; and

the jurisdiction so vested is not limited by any limits to which any other jurisdiction of the Court may be subject.

The courts of a State or Territory are invested with jurisdiction with respect to civil and criminal matters arising under a prescribed uniform energy law of the State or Territory applied as a law of the Commonwealth.

If a provision of a prescribed uniform energy law of a State or Territory applied as a law of the Commonwealth, whether expressly or by implication, authorises a civil or criminal proceeding to be instituted in a court of the State or Territory in relation to a matter:

that provision is taken to vest the court with jurisdiction in that matter; and

the jurisdiction so vested is not limited by any limits to which any other jurisdiction of the court may be subject.

This section applies to an instrument or a decision made by the Australian Energy Regulator if:

the instrument or decision was made:

(i) on or after the time that the National Energy Retail Law (South Australia) Act 2011 of South Australia was enacted; but

(ii) before the time (the application time) that the South Australian Energy Retail Legislation first started to apply under this Act as a law of the Commonwealth; and

(b) the making of the instrument or decision would have been authorised by the National Energy Retail Law and Regulations (Commonwealth) (the authorising law) if the South Australian Energy Retail Legislation had started so to apply; and

in a case in which the making of the instrument or decision would be so authorised subject to the satisfaction of any conditions or other requirements (for example, consultation or publication requirements)—the Australian Energy Regulator has done anything that would, if the South Australian Energy Retail Legislation had started so to apply, be required under the authorising law for the instrument or decision to be so authorised.

(2) For the purposes of the authorising law:

the instrument or decision is taken to be valid; and

the instrument or decision has effect from the application time:

as varied, and unless revoked, by any other instrument or decision to which this section applies; and

subject to that law as so applying.

For the purposes of this section:

guidelines are an example of an instrument; and

the following are examples of decisions:

appointments;

determinations;

approvals.

This section applies if:

(a) the Australian Energy Regulator is required to do something (a preparatory step) before making a decision or making an instrument under the National Energy Retail Law and Regulations (Commonwealth) (the authorising law); and

the Australian Energy Regulator takes the preparatory step:

(i) on or after the time that the National Energy Retail Law (South Australia) Act 2011 of South Australia was enacted; but

(ii) before the time that the South Australian Energy Retail Legislation first started to apply under this Act as a law of the Commonwealth.

For the purposes of the authorising law, the Australian Energy Regulator is taken to have complied with the requirement to take the preparatory step.

This section applies to an instrument or a decision made by the Australian Energy Regulator if:

the instrument or decision was made:

(i) on or after the time that the amendments of the South Australian Electricity Legislation or the South Australian Gas Legislation by the Statutes Amendment (National Energy Retail Law) Act 2011 of South Australia were enacted; but

(ii) before the time (the application time) that the amendments started to apply under this Act as a law of the Commonwealth; and

(b) the making of the instrument or decision would have been authorised by the National Electricity (Commonwealth) Law and Regulations or the National Gas (Commonwealth) Law and Regulations (the authorising law) if the amendments had started so to apply; and

in a case in which the making of the instrument or decision would be so authorised subject to the satisfaction of any conditions or other requirements (for example, consultation or publication requirements)—the Australian Energy Regulator has done anything that would, if the amendments had started so to apply, be required under the authorising law for the instrument or decision to be so authorised.

For the purposes of the authorising law:

the instrument or decision is taken to be valid; and

the instrument or decision has effect from the application time:

as varied, and unless revoked, by any other instrument or decision to which this section applies; and

subject to that law as so applying.

For the purposes of this section:

guidelines are an example of an instrument; and

the following are examples of decisions:

appointments;

determinations;

approvals.

This section applies if:

(a) the Australian Energy Regulator is required to do something (a preparatory step) before making a decision or making an instrument under the National Electricity (Commonwealth) Law and Regulations or the National Gas (Commonwealth) Law and Regulations (the authorising law); and

(b) the preparatory step would have been required under the authorising law if the amendments of South Australian Electricity Legislation or the South Australian Gas Legislation made by the Statutes Amendment (National Energy Retail Law) Act 2011 of South Australia had started to apply under this Act as a law of the Commonwealth; and

the Australian Energy Regulator takes the preparatory step:

on or after the time that the amendments were enacted; but

before the time that the amendments started to apply under this Act as a law of the Commonwealth.

For the purposes of the authorising law, the Australian Energy Regulator is taken to have complied with the requirement to take the preparatory step.

The Governor-General may make regulations prescribing matters:

required or permitted by this Act to be prescribed; or

necessary or convenient to be prescribed for carrying out or giving effect to this Act.

Regulations may be made providing for the interpretation of a uniform energy law applied as a law of the Commonwealth. In particular, the regulations may provide that the following do not apply to the uniform energy law applied as a law of the Commonwealth:

any law, or any provision of a law, of the Commonwealth, a State or Territory, being a law relating to the interpretation of laws;

any other law, or any other provision of a law, of the Commonwealth, a State or Territory.

The regulations may modify or adapt any provision of:

the National Electricity (Commonwealth) Law; or

the National Electricity (Commonwealth) Regulations; or

the National Gas (Commonwealth) Law; or

the National Gas (Commonwealth) Regulations; or

the Offshore Western Australian Pipelines (Commonwealth) Law; or

the Offshore Western Australian Pipelines (Commonwealth) Regulations; or

the National Energy Retail Law (Commonwealth); or

the National Energy Retail Regulations (Commonwealth); or

(d) a prescribed uniform energy law applied as a law of the Commonwealth;

as it applies as a provision of a law of the Commonwealth.

Endnotes

Endnote 1—About the endnotes

The endnotes provide information about this compilation and the compiled law.

The following endnotes are included in every compilation:

Endnote 1—About the endnotes

Endnote 2—Abbreviation key

Endnote 3—Legislation history

Endnote 4—Amendment history

Abbreviation key—Endnote 2

The abbreviation key sets out abbreviations that may be used in the endnotes.

Legislation history and amendment history—Endnotes 3 and 4

Amending laws are annotated in the legislation history and amendment history.

The legislation history in endnote 3 provides information about each law that has amended (or will amend) the compiled law. The information includes commencement details for amending laws and details of any application, saving or transitional provisions that are not included in this compilation.

The amendment history in endnote 4 provides information about amendments at the provision (generally section or equivalent) level. It also includes information about any provision of the compiled law that has been repealed in accordance with a provision of the law.

Editorial changes

The Legislation Act 2003 authorises First Parliamentary Counsel to make editorial and presentational changes to a compiled law in preparing a compilation of the law for registration. The changes must not change the effect of the law. Editorial changes take effect from the compilation registration date.

If the compilation includes editorial changes, the endnotes include a brief outline of the changes in general terms. Full details of any changes can be obtained from the Office of Parliamentary Counsel.

Misdescribed amendments

A misdescribed amendment is an amendment that does not accurately describe the amendment to be made. If, despite the misdescription, the amendment can be given effect as intended, the amendment is incorporated into the compiled law and the abbreviation “(md)” added to the details of the amendment included in the amendment history.

If a misdescribed amendment cannot be given effect as intended, the abbreviation “(md not incorp)” is added to the details of the amendment included in the amendment history.

Endnote 2—Abbreviation key

Endnote 3—Legislation history

(a) Subsection 2(1) (item 4) of the Energy Legislation Amendment Act 2006 provides as follows:

Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.

(b) Subsection 2(1) (items 3 and 4) of the Australian Energy Market Amendment (Gas Legislation) Act 2007 provides as follows:

Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.

(c) Subsection 2(1) (item 2) of the Australian Energy Market Amendment (Minor Amendments) Act 2008 provides as follows:

Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.

Endnote 4—Amendment history