Electricity Supply Industry (Price Control and Related Matters) Regulations 2012
I, the Governor in and over the State of Tasmania and its Dependencies in the Commonwealth of Australia, acting with the advice of the Executive Council, make the following regulations under the Electricity Supply Industry Act 1995 .
27 June 2012PETER G. UNDERWOOD
Governor
By His Excellency's Command,
LARA GIDDINGS
Treasurer
PART 1 - Preliminary
These regulations may be cited as the Electricity Supply Industry (Price Control and Related Matters) Regulations 2012 .
These regulations take effect on the day on which section 23 of the National Energy Retail Law (Tasmania) (Consequential Amendments) Act 2012 commences.
In these regulations –Act means the Electricity Supply Industry Act 1995 ;amend means –(a) omit any matter; or(b) insert or add any matter; or(c) omit any matter and substitute any other matter;Cabinet record means a record which –(a) is referred to in section 26(1) of the Right to Information Act 2009 ; and(b) contains exempt information, within the meaning of that Act, to which that section applies;contract includes agreement and arrangement;declaration of a declared electrical service means a declaration made under regulation 4 , as amended, if at all, under regulation 5 ;declared electrical service means goods or a service declared under regulation 4 to be a declared electrical service;declared electrical service price determination means a determination made under regulation 15 , as amended, if at all, under regulation 21 ;declared electrical service pricing investigation means an investigation conducted under regulation 7(1) or (7) ;distribution determination means a determination, made in accordance with the National Electricity Rules, that is in force;electricity provider means –(a) an electricity entity; and(b) an authorised retailer;function includes duty;ministerial charter has the same meaning as in the Government Business Enterprises Act 1995 ;notice of declared electrical service pricing investigation means a notice given under regulation 8(1) , as amended, if at all, under regulation 8(4) ;price includes a tariff and a charge;pricing policies, in relation to a declared electrical service pricing investigation in respect of a declared electrical service and any declared electrical service price determination made in respect of the declared electrical service, includes –(a) policies relating to the level or structure of prices for the declared electrical service; and(b) if the declared electrical service relates to the Bass Strait Islands, policies relating to the conditions that may be included in a contract, in relation to the declared electrical service, entered into by –(i) an electricity provider; and(ii) a customer at premises in the Bass Strait Islands;provide includes, where appropriate, the supply of electricity;regional reference node has the same meaning as in the National Electricity Rules;relevant tax means a tax, charge, levy, duty, or imposition, that –(a) is directly attributable to the provision of goods or a service specified in a transmission determination, a distribution determination or a declaration of a declared electrical service; and(b) in the opinion of the Regulator, is not normally absorbed by businesses in a fully competitive market –but does not include –(c) an income tax, income tax equivalent, fringe benefits tax or capital gains tax; or(d) a tax, charge, levy, duty, or imposition, that replaces a tax referred to in paragraph (c) ; or(e) a fee or charge payable under the Act, the regulations, the Code, the National Electricity Rules or section 233 of the National Energy Retail Law (Tasmania); or(f) a renewable energy shortfall charge under section 36 of the Renewable Energy (Electricity) Act 2000 of the Commonwealth; or(g) an amount payable under a contract; or(h) a fine or other penalty;renewable energy certificate means a renewable energy certificate within the meaning of the Renewable Energy (Electricity) Act 2000 of the Commonwealth;Tasmanian newspaper means a newspaper published and circulating generally in Tasmania;tax event, in relation to a transmission determination, a distribution determination or a declared electrical service price determination, means –(a) the imposition on an electricity provider of an obligation to pay an amount which –(i) it was not obliged to pay at the time the determination was made; and(ii) arises from the imposition of a relevant tax; or(b) a change in the manner in which, or the rate at which, a relevant tax is calculated, which results in a change, in an amount an electricity provider is required to pay, whether –in respect of relevant taxes, from the amount the electricity provider was required to pay in respect of such taxes at the time the determination was made; or(i) directly; or(ii) by reason of an adjustment under a contract of an amount payable under that contract –(c) the removal of a relevant tax which results in a change, in an amount an electricity provider is required to pay, whether –in respect of relevant taxes, from the amount the electricity provider was required to pay in respect of such taxes at the time the determination was made;(i) directly; or(ii) by reason of an adjustment under a contract of an amount payable under that contract –transmission determination means a transmission determination, made in accordance with the National Electricity Rules, that is in force.
PART 2 - Declared Electrical Service Price Determinations and Investigations
Division 1 - Declared electrical services
4. Declaration of a declared electrical service
(1) In this regulation –goods or a service includes the sale or supply of electricity but does not include a service specified in a transmission determinationor a distribution determination.(2) The Regulator, by notice published in the Gazette (a declaration of a declared electrical service), may declare goods or a service, specified in the notice, that are provided by an electricity provider specified in the notice, to be a declared electrical service.(3) The Regulator may only declare goods or a service that are provided by an electricity provider to be a declared electrical service if the Regulator is of the opinion that –(a) the electricity provider has substantial market power in respect of the goods or service; and(b) the promotion of competition, efficiency or the public interest requires the making of the declaration.(4) Before making a declaration of a declared electrical service, the Regulator must –(a) give written notice of the Regulator's intention to make the declaration, and the reasons for making the declaration, to the electricity provider that the Regulator intends to specify in the declaration; and(b) publish that notice in the daily Tasmanian newspapers that the Regulator considers appropriate; and(c) allow the electricity provider and any other person to make written submissions to the Regulator in respect of the matter within the period, being a reasonable period, that is specified in that notice.(5) A declaration of a declared electrical service takes effect on the day the declaration is published in the Gazette under subregulation (2) or, if a later day is specified in the declaration, that later day.
5. Amendment of declaration of a declared electrical service
(1) The Regulator, by notice published in the Gazette, may amend a declaration of a declared electrical service.(2) Regulation 4(4) and (5) apply in respect of an amendment to a declaration of a declared electrical service as if the amendment were such a declaration.(3) If a declaration of a declared electrical service is amended, the amendment does not invalidate a declared electrical service pricing investigation, in respect of the goods or service to which the declaration relates, that is being conducted at the time of the amendment.
6. Revocation of declaration of a declared electrical service
(1) The Regulator, by notice published in the Gazette, may revoke a declaration of a declared electrical service.(2) The Regulator may only revoke a declaration of a declared electrical service under subregulation (1) if the Regulator is of the opinion –(a) that the electricity provider providing the declared electrical service does not have substantial market power in respect of the declared electrical service; or(b) that the declaration is no longer required for the promotion of competition, efficiency or the public interest.(3) Regulation 4(4) applies in respect of a revocation of a declaration of a declared electrical service as if the revocation were such a declaration.(4) A revocation of a declaration of a declared electrical service takes effect on the day the revocation is published in the Gazette under subregulation (1) or, if a later day is specified in the revocation, that later day.
Division 2 - Investigations of pricing policies
(1) If the Regulator makes a declaration of a declared electrical service, the Regulator is to conduct, in accordance with this Division, an investigation into the pricing policies of the electricity provider that provides the declared electrical service.(2) Not later than 6 months before the expiry of a declared electrical service price determination in respect of a declared electrical service, the Regulator is to invite submissions in respect of whether the declaration of a declared electrical service in relation to the declared electrical service should be retained or revoked.(3) The invitation referred to in subregulation (2) is to –(a) be in writing; and(b) specify a reasonable period within which the submissions may be made.(4) The Regulator is to –(a) provide a copy of the invitation to –(i) the Minister; and(ii) the electricity provider providing the declared electrical service to which the invitation relates; and(b) publish a copy of the invitation in the daily Tasmanian newspapers that the Regulator considers appropriate.(5) After the expiry of the period within which submissions may, under the invitation referred to in subregulation (2) , be made in relation to a declaration of a declared electrical service, and after considering any such submissions received, the Regulator is to determine whether to revoke or retain the declaration.(6) If the Regulator determines under subregulation (5) to revoke the declaration of a declared electrical service –(a) the Regulator is to revoke the declaration under regulation 6 ; and(b) regulation 6(3) does not apply in respect of the revocation.(7) If the Regulator determines under subregulation (5) to retain the declaration of a declared electrical service, the Regulator is to conduct, within a reasonable time, a declared electrical service pricing investigation into the pricing policies of the electricity provider providing the declared electrical service.
8. Notice of declared electrical service pricing investigation
(1) Before conducting a declared electrical service pricing investigation, the Regulator –(a) is to give to the Minister notice in writing of the investigation (a notice of declared electrical service pricing investigation); and(b) is to give a copy of the notice to the electricity provider providing the declared electrical service to which the investigation is to relate; and(c) is to publish a copy of the notice in the daily Tasmanian newspapers that the Regulator considers appropriate.(2) A notice of declared electrical service pricing investigation that relates to a declaration of a declared electrical service is to specify –(a) the purpose of the investigation; and(b) the period within which, and the form in which, submissions may be made to the Regulator; and(c) the matters that the Regulator would like submissions to address; and(d) the day by which the Regulator is to complete the declared electrical service pricing investigation by providing a final report under regulation 14(1)(b) .(3) Before conducting a declared electrical service pricing investigation, the Regulator is to publish on a website of the Regulator, for a period of not less than 6 months, a copy of the notice of declared electrical service pricing investigation in relation to the investigation.(4) The Regulator may amend a notice of declared electrical service pricing investigation by notice in writing, setting out the amendment, given to the Minister and the electricity provider providing the declared electrical service to which the investigation relates.(5) The Regulator may not amend under subregulation (4) the purpose specified, in accordance with subregulation (2)(a) , in a notice of declared electrical service pricing investigation.(6) If the Regulator amends under subregulation (4) a notice of declared electrical service pricing investigation, the Regulator is to –(a) give notice of the amendment in the daily Tasmanian newspapers that the Regulator considers appropriate; and(b) ensure that a copy of the notice given under subregulation (4) is available, for viewing and downloading by a member of the public, at a website of the Regulator, for a period of not less than 6 months.
9. Conduct of declared electrical service pricing investigation
(1) For the purposes of conducting a declared electrical service pricing investigation, but subject to these regulations, the Regulator may do anything the Regulator considers necessary or convenient.(2) In conducting a declared electrical service pricing investigation, the Regulator is only to receive submissions if they are in the form specified in the notice of declared electrical service pricing investigation in relation to the investigation.(3) Subject to these regulations, the Regulator may conduct a declared electrical service pricing investigation in the manner the Regulator considers appropriate and, in particular, may –(a) consult with any person; or(b) hold seminars; or(c) hold hearings; or(d) determine whether any person wishing to appear before the Regulator may be represented by another person.(4) In conducting a declared electrical service pricing investigation, the Regulator is not bound by rules of evidence but may inform itself in any matter in any manner the Regulator considers appropriate.
(1) If, in conducting a declared electrical service pricing investigation, the Regulator decides to hold a hearing, the Regulator is to give reasonable notice of the hearing in the daily Tasmanian newspapers that the Regulator considers appropriate.(2) The notice of a hearing is to specify –(a) the purpose of the hearing; and(b) the time and place at which the hearing is to be held.(3) A hearing is to be held in public.(4) Despite subregulation (3) , if the Regulator is satisfied that it would be in the public interest to do so or that evidence to be presented is, or is likely to be, of a confidential or commercially sensitive nature, the Regulator is to –(a) direct that a hearing or part of a hearing is to take place in private and give directions as to the persons who may be present; and(b) give directions prohibiting or restricting the publication of evidence given or documents produced at the hearing.(5) A person must not contravene a direction given under subregulation (4) .Penalty: Fine not exceeding 100 penalty units.(6) The following information is taken to be classified by the Regulator as confidential and is not liable to disclosure under the Right to Information Act 2009 :(a) evidence and documents in respect of which a direction under subregulation (4)(b) has been made;(b) records of the giving or production of such evidence and documents.
11. Requiring person to give evidence or provide document
(1) For the purposes of a declared electrical service pricing investigation, the Regulator, by written notice provided to a person, may require the person to do any one or more of the following:(a) attend before the Regulator and answer questions which, in the opinion of the Regulator, are relevant to the investigation;(b) provide to the Regulator, in the manner specified in the notice, any document specified in the notice which is in the person's possession or control and which, in the opinion of the Regulator, is relevant to the investigation;(c) provide to the Regulator, in the manner specified in the notice, a document prepared as specified in the notice that contains information which is specified in the notice and which, in the opinion of the Regulator, is relevant to the investigation;(d) provide to the Regulator, in the manner specified in the notice, any other information specified in the notice which, in the opinion of the Regulator, is relevant to the investigation.(2) A person must not fail to comply with a requirement imposed on the person under subregulation (1) .Penalty: Fine not exceeding 100 penalty units.(3) Despite subregulation (2) , a natural person is not required to comply with a requirement imposed on the person under subregulation (1) if to do so would tend to incriminate him or her.(4) A person who attends before the Regulator in accordance with a requirement, referred to in subregulation (1)(a) , that is imposed on the person may, at the Regulator's discretion, be paid by the Regulator reasonable allowances and expenses as determined by the Regulator.(5) If a requirement referred to in subregulation (1)(a) is imposed on a person under subregulation (1) , the Regulator may determine whether the person may be represented by another person.(6) Despite subregulation (1) , the Regulator may not require a person –(a) to answer a question, or provide a document or information, if to do so would require the person to divulge information contained in or relating to a Cabinet record; or(b) to provide to the Regulator a Cabinet record.
12. Use of documents and other information
(1) The Regulator –(a) may examine, take possession of, make copies of and take extracts from any document provided under a requirement referred to in regulation 11(1)(b) or (c) ; and(b) may retain that document for so long as is necessary for the purposes of the declared electrical service pricing investigation in relation to which the requirement was imposed; and(c) is to allow a person who would be entitled to inspect the document, if it were not in the possession of the Regulator, to inspect it, make a copy of it or take an extract from it at any reasonable time.(2) The Regulator may give directions prohibiting or restricting the publication of –(a) any answer, document or other information provided to the Regulator under a requirement referred to in regulation 11(1) ; and(b) a part of any such answer, document or other information; and(c) a copy of, or extract from, any such answer, document, other information or part.(3) A person must not contravene a direction given under subregulation (2) .Penalty: Fine not exceeding 150 penalty units.(4) The following information is taken to be classified by the Regulator as confidential and is not liable to disclosure under the Right to Information Act 2009 :(a) any answer, document, other information or part of any answer, document or other information in respect of which a direction under subregulation (2) has been given;(b) records relating to the production of any such answer, document, other information or part.(5) The Regulator may publish to any person as the Regulator considers appropriate any answer, document or other information provided under a requirement referred to in regulation 11(1) , or part of any such answer, document or other information, except if –(a) a direction in respect of the answer, document, other information or part has been given under subregulation (2) and its publication to that person would contravene the direction; or(b) the answer, document, other information or part contains information which is exempt information under the Right to Information Act 2009 ; or(c) the answer, document, other information or part is or contains information which, in the opinion of the Regulator, could cause damage to the commercial interests of a person and the Regulator determines that such damage or the possibility of such damage outweighs the public benefit that would arise from its publication.
(1) At an appropriate time during a declared electrical service pricing investigation, the Regulator is to prepare a draft report in respect of the investigation.(2) As soon as practicable after preparing the draft report, the Regulator is to –(a) provide a copy of the draft report, together with the relevant notice, to –(i) the Minister; and(ii) each electricity provider providing the declared electrical service which is the subject of the investigation; and(b) ensure that a copy of the draft report, together with the relevant notice, may –(i) be obtained, in an electronic form contained in a disk or other portable object, by a member of the public, on payment of the relevant fee, if any, for such a copy; and(ii) be obtained, in a paper form, by a member of the public, on payment of the relevant fee, if any, for such a copy; and(c) make available for viewing and downloading by members of the public, on a website of the Regulator, for a period of not less than 6 months, a copy of the draft report together with the relevant notice.(3) The relevant notice is a notice inviting the making of submissions to the Regulator in respect of the draft report before the date specified in the notice as the date before which submissions may be made.(4) The relevant fee in respect of a copy of a draft report is a fee determined by the Regulator under subregulation (5) in respect of such a copy.(5) The Regulator may determine an amount to be a relevant fee in respect of a copy of a draft report, but only if the amount is not more than the cost to the Regulator of making the copy.(6) A person may make a submission to the Regulator in respect of the draft report by the date specified in the relevant notice in relation to the draft report as the date before which submissions in relation to the draft report may be made.
(1) After considering any submission made under regulation 13(6) in relation to a declared electrical service pricing investigation, the Regulator is to –(a) prepare a final report in respect of the declared electrical service pricing investigation; and(b) provide a copy of the final report to –(i) the Minister; and(ii) the electricity provider providing the declared electrical service to which the declared electrical service pricing investigation relates; and(c) publish, in the daily Tasmanian newspapers that the Regulator considers appropriate, notice that a copy of the report –(i) may, on payment of the relevant fee in respect of such a copy, be obtained at a place specified in the notice; and(ii) may be viewed and downloadedat a website specified in the notice.(2) The final report is to –(a) be provided under subregulation (1)(b) before the day specified in the notice under regulation 8(2)(d) ; and(b) be consistent with the Act and any regulations under the Act; and(c) report in relation to –an electricity provider that provides the declared electrical service to which the declared electrical service pricing investigation relates.(i) the appropriate prices that, during the period specified in the report, may be charged by; or(ii) the appropriate price control mechanisms to be imposed, during the period specified in the report, on –(3) As soon as practicable after the final report is completed, the Regulator is to ensure that –(a) a copy of the final report –(i) may be obtained, in an electronic form contained in a disk or other portable object, by a member of the public, on payment of the relevant fee, if any, for such a copy; and(ii) may be obtained, in a paper form, by a member of the public, on payment of the relevant fee, if any, for such a copy; and(b) a copy of the final report is available, for viewing and downloading by a member of the public, at a website of the Regulator, until the end of the period for which thedeclared electrical service price determination, made in respect of the declared electrical service to which the report relates, remains in force.(4) The relevant fee in respect of a copy is a fee determined by the Regulator under subregulation (5) in respect of such a copy.(5) The Regulator may determine an amount to be a relevant fee in respect of a copy of a final report, but only if the amount is not more than the cost to the Regulator of making the copy.
15. Declared electrical service price determination
(1) After completing the final report, the Regulator is to make a determination (a declared electrical service price determination) that –an electricity provider, during the period specified in the determination, in respect of the declared electrical service to which the report relates.(a) regulates the prices that may be charged by; and(b) specifies the price control mechanisms imposed on –(2) The regulation of prices that may be charged and price control mechanisms may be expressed in one or more of the following terms or manners:(a) maximum prices or the maximum rate of increase or the minimum rate of decrease in maximum prices;(b) average prices or average rates of increase or decrease in average prices;(c) pricing policies or principles;(d) by reference to a general price index, the cost of production, revenue, a rate of return on assets or any other factor;(e) by reference to quantity, location or period of provision of the declared electrical service;(f) by reference to a maximum revenue;(g) any other terms the Regulator considers appropriate.(3) A declared electrical service price determination that relates to a declared electrical service in relation to the Bass Strait Islands may consist of, or include, provisions regulating the conditions that may be included in a contract entered into, during the period specified in the determination in respect of the declared electrical service, by –(a) an electricity provider; and(b) a customer at premises in the Bass Strait Islands.(4) A declared electrical service price determination is to specify the day on which the determination expires.(5) A declared electrical service price determination –(a) is to allow for an adjustment to the prices that may be charged by, and to the price control mechanisms imposed on, an electricity provider under the determination as a result of a tax event; and(b) is to specify the method of calculating that adjustment or the principles and general manner to be applied in making the adjustment or doing the calculation of the adjustment.(6) A declared electrical service price determination in respect of a declared electrical service that is or includes the sale of electricity by Aurora Energy to small customers –(a) is to allow for an adjustment to –Aurora Energy under the determination as a result of a change in the costs to Aurora Energy in relation to the purchasing of renewable energy certificates in connection with the provision of that service; and(i) the prices that may be charged by; and(ii) the price control mechanisms imposed on –(b) is to specify –(i) the method of calculating that adjustment; or(ii) the principles and general manner to be applied in making the adjustment or doing the calculation of the adjustment.(7) A declared electrical service price determination may establish a performance incentive scheme for an electricity provider to which the determination relates.(8) If a declared electrical service price determination establishes a performance incentive scheme for an electricity provider, the determination is to specify –(a) the method of calculating the adjustment to the prices that may be charged by, and to the price control mechanisms imposed on, the electricity provider under the determination as a result of that scheme; or(b) the principles and general manner to be applied in making the adjustment or doing the calculation of the adjustment.(9) In specifying in a declared electrical service price determination –the Regulator is to ensure that the adjustment reflects the full financial effect to the electricity provider of the tax event or change.(a) the method of calculating an adjustment referred to in subregulation (5) or (6) ; or(b) the principles and general manner to be applied in making the adjustment or doing the calculation of the adjustment –(10) A declared electrical service price determination may have a differential application that varies according to factors stated in the determination.
16. Principles to be given effect
(1) In this regulation –ancillary services means ancillary services as defined in the National Electricity Rules;notional electricity generator means a notional new electricity generating plant, located on mainland Tasmania, intended to generate electricity using a source of energy available on mainland Tasmania;regulated service means a service to which a transmission determination or distribution determination applies.(2) In making a declared electrical service price determination, the Regulator is to give effect to the principle that the cost of an electricity provider obtaining a regulated service that is necessary to enable the provision of the declared electrical service that is the subject of the determination is to be calculated in the relevant manner.(3) For the purposes of subregulation (2) , the relevant manner of calculating the cost of obtaining a regulated service is by taking into account the price for providing that service that is determined, by the electricity provider from whom the regulated service is obtained, in accordance with the National Electricity Rules and any relevant transmission determination or distribution determination.(4) In making a declared electrical service price determination, relating to a declared electrical service that is or includes a retail service provided by Aurora Energy to small customers on mainland Tasmania, the Regulator is to make an estimate of electricity supply costs.(5) The Regulator is to make an estimate of electricity supply costs under subregulation (4) by calculating the average of –(a) the price Aurora Energy would pay to purchase electricity in Victoria and transport the electricity to mainland Tasmania for supply to small customers on mainland Tasmania; and(b) the long-run marginal cost of electricity generation by a notional electricity generator to supply electricity to small customers on mainland Tasmania.(6) When calculating, for the purpose of subregulation (5)(b) , the long-run marginal cost of electricity generation by a notional electricity generator, the Regulator must –(a) assume the notional electricity generator would generate electricity in an efficient and cost-effective manner; and(b) take into consideration the costs that would be incurred by the notional electricity generator for the procurement of ancillary services; and(c) take into consideration any Commonwealth legislation, relating to the emission of carbon in the generation of electricity, that would impose costs on the generation of electricity by the notional electricity generator.(7) The Regulator may amend an estimate of electricity supply costs made in accordance with this regulation, if the Regulator –(a) considers the determination made under subregulation (6) no longer satisfies or takes into consideration the matters referred to in that subregulation; or(b) considers it otherwise necessary to do so.(8) The Regulator is to notify Aurora Energy of any amendment of an estimate of electricity supply costs under subregulation (7) .
In making a declared electrical service price determination in relation to a declared electrical service, the Regulator is to consider the following matters:(a) the cost of providing the declared electrical service;(b) any interstate or international benchmarks for prices, costs, revenues and return on assets in bodies providing a service similar to the declared electrical service;(c) the principle that consumers of the declared electrical service should be protected from the adverse effects of the exercise of substantial market power by an electricity provider in relation to prices, pricing policies and standards of service in respect of the provision of the declared electrical service;(d) the degree of competition in the electricity supply industry that is relevant to the provision of the declared electrical service;(e) the principle that there is a need for a reasonable return (including the payment of dividends) on the assets of an electricity provider;(f) the principle that there is a need for efficiency in the provision of the declared electrical service for the purpose of benefiting the public interest through a reduction in the cost of providing the declared electrical service;(g) the effects of inflation;(h) the principle that there is a need for the electricity provider to be financially viable;(i) the impact on pricing policies of any borrowing, capital, dividend and taxation or tax-equivalent obligations of the electricity provider, including obligations to renew or increase assets;(j) the quality of the provision of the declared electrical service;(k) any ministerial charter, licence or obligation under the Act, any regulations made under the Act, the National Energy Retail Law (Tasmania), the National Energy Retail Regulations (Tasmania), the National Energy Retail Law (Tasmania) Act 2012 and any regulations made under that Act, that apply, or are likely to apply, to the electricity provider;(l) the Code;(m) the National Electricity Rules;(n) any costs (including capital expenditure) incurred by the electricity provider at the direction of the Regulator;(o) the public interest;(p) any other matter the Regulator considers relevant.
18. Notice to be given of making of declared electrical service price determination
(1) As soon as practicable after making a declared electrical service price determination, the Regulator must –(a) provide a copy of the determination to –(i) the Minister; and(ii) the electricity provider to which the determination relates; and(b) publish, in the daily Tasmanian newspapers that the Regulator considers appropriate, notice that a copy of the determination –(i) may, on payment of the relevant fee in respect of such a copy, be obtained at a place specified in the notice; and(ii) may be viewed and downloadedat a website specified in the notice.(2) As soon as practicable after making a declared electrical service price determination, the Regulator is to ensure that –(a) a copy of the determination –(i) may be obtained, in an electronic form contained in a disk or other portable object, by a member of the public, on payment of the relevant fee, if any, for such a copy; and(ii) may be obtained, in a paper form, by a member of the public, on payment of the relevant fee, if any, for such a copy; and(b) a copy of the determination is available, for viewing and downloading by a member of the public, at a website of the Regulator, until the end of the period for which thedetermination remains in force.(3) The relevant fee in respect of a copy is a fee determined by the Regulator under subregulation (4) in respect of such a copy.(4) The Regulator may determine an amount to be a relevant fee in respect of a copy of a declared electrical service price determination, but only if the amount is not more than the cost to the Regulator of making the copy.
19. When declared electrical service price determination takes effect and ends
(1) A declared electrical service price determination (the new determination) relating to a declared electrical service takes effect –(a) if at the time the new determination is made there is in force no other such determination in relation to the declared electrical service – on the day specified in the new determination as the day on which the determination is to take effect; or(b) if at the time the new determination is made there is in force another such determination, in relation to the declared electrical service, that has not yet reached its expiry date – on the expiry or revocation of the other determination; or(c) if at the time the new determination is made there is in force, by reason of subregulation (4) , another such determination in relation to the declared electrical service – on the day specified in the new determination as the day on which the determination is to take effect.(2) A declared electrical service price determination ceases to have effect –(a) if each declaration of a declared electrical service in respect of all declared electrical services to which the determination applies has been revoked – on the day on which the last of those revocations takes effect; or(b) if the determination is revoked – on the day that revocation takes effect; or(c) if the determination, by reason of subregulation (4) , is continued after the day it would normally expire – on the day on which another declared electrical service price determination in respect of the declared electrical service to which the determination applies takes effect; or(d) in any other case – on the day specified in the determination as the day on which it expires.(3) If –the declared electrical service price determination ceases to have effect in relation to the goods or the service in respect of which that declaration of a declared electrical service was made.(a) a declared electrical service price determination relates to more than one declared electrical service; and(b) a declaration of a declared electrical service in respect of any of those electrical services is revoked –(4) If, on the day on which a declared electrical service price determination is due to expire, a declared electrical service pricing investigation is being conducted in respect of a declared electrical service to which that determination relates, that determination –(a) continues to have effect in respect of that declared electrical service; but(b) ceases to have effect in respect of any other declared electrical service to which it relates.
(1) In this regulation –adjustment means an adjustment to the prices that an electricity provider may charge, or to the price control mechanisms imposed on an electricity provider, (or both), under a declared electrical service price determination –(a) as a result of the occurrence of a tax event; or(b) as a result of the change in the costs to the electricity provider from the purchase of renewable energy certificates; or(c) under a performance incentive scheme.(2) The Regulator, by notice to an electricity provider, may specify that an adjustment, specified in the notice, is approved and takes effect on the date specified in the notice as the date on which the adjustment is to take effect.(3) An adjustment takes effect on the date specified in a notice under subregulation (2) as the date on which the adjustment is to take effect.(4) The Regulator is to notify an electricity provider if, when considering whether to approve an adjustment, the Regulator determines that –(a) a tax event or a change in the costs to the electricity provider from the purchase of renewable energy certificates has not occurred; or(b) a standard of performance required for an adjustment has not been reached.(5) The Regulator is not to approve an adjustment unless the Regulator is satisfied that the adjustment has been calculated in accordance with –specified in the declared electrical service price determination to which the adjustment relates.(a) the method of calculating that adjustment; or(b) the principles and general manner to be applied in making the adjustment or doing the calculation of the adjustment –(6) On approving or refusing to approve an adjustment, the Regulator is to notify the electricity provider to which the adjustment relates.
21. Revocation or amendment of declared electrical service price determination
(1) The Regulator may revoke or amend a declared electrical service price determination if permitted to do so under subregulation (2) or (3) .(2) The Regulator may revoke or amend a declared electrical service price determination under subregulation (1) if, in the opinion of the Regulator, an electricity provider to which the determination applies is materially adversely affected as a result of the making, amendment or revocation of a transmission determination or a distribution determination.(3) The Regulator may revoke or amend a declared electrical service price determination under subregulation (1) if the Regulator determines –(a) that the determination was made on the basis of information that was false or misleading in a material particular; or(b) that there is a material error in the determination; or(c) that the determination included an estimate of electricity supply costs, made under regulation 16(4) , which has subsequently been amended under regulation 16(7) ; or(d) that –(i) an electricity provider to which the determination applies is materially adversely affected by the determination as a result of an event which is beyond the electricity provider's control and was not taken into account in the terms of the determination; and(ii) the benefits of revoking or amending the determination would outweigh any detriment to the Tasmanian electricity supply industry that might result from the revocation or amendment of the determination.(4) Before revoking or amending a declared electrical service price determination, the Regulator is to invite submissions in respect of whether the determination ought to be revoked or amended.(5) The invitation referred to in subregulation (4) is to –(a) be in writing; and(b) specify a reasonable period within which the submissions may be made.(6) The Regulator is to –(a) provide a copy of the invitation to –(i) the Minister; and(ii) the electricity provider providing the declared electrical service to which the declared electrical service price determination relates; and(b) publish a copy of the invitation in the daily Tasmanian newspapers that the Regulator considers appropriate.(7) The Regulator is only to revoke or amend a declared electrical service price determination under subregulation (1) –(a) after the expiry of the period within which submissions may, under the invitation referred to in subregulation (4) , be made in relation to the determination; and(b) after considering any such submissions received.(8) Subject to these regulations, the Regulator may do anything the Regulator considers necessary or convenient for the purpose of determining whether or not to revoke or amend a declared electrical service price determination.(9) In relation to determining under subregulation (8) whether or not to revoke or amend a declared electrical service price determination, regulation 9(3) and (4) and regulations 10 , 11 and 12 apply as if the Regulator were conducting a declared electrical service pricing investigation.(10) A revocation or amendment of a declared electrical service price determination takes effect on the day specified in the revocation or amendment.(11) Regulation 18 applies in relation to an amendment of a declared electrical service price determination as if the amendment were a declared electrical service price determination.(12) Regulation 18(1) applies in relation to a revocation of a declared electrical service price determination as if the revocation were a declared electrical service price determination.
Division 3 - Costs
22. Costs of declaration, investigations and determinations
(1) In this regulation, each of the following is a relevant activity of the Regulator in respect of a declared electrical service provided by an electricity provider:(a) the making or amending of a declaration of a declared electrical service that is provided by the electricity provider;(b) the conduct and reporting of a declared electrical service pricing investigation in relation to a declared electrical service provided by the electricity provider, and the giving, or publication, of any notice required under these regulations to be given in relation to such an investigation or report;(c) the making or amending of a declared electrical service price determination in relation to a declared electrical service that is provided by the electricity provider and the publishing of a copy of the determination or amendment under regulation 18 .(2) The Regulator may send a notice of expenses to an electricity provider in relation to a relevant activity of the Regulator.(3) A notice of expenses to an electricity provider in relation to a relevant activity of the Regulator is a notice specifying –(a) the amount of the expenses determined by the Regulator to be payable by the electricity provider in respect of all or part of the expenses, reasonably incurred by the Regulator, arising from a relevant activity of the Regulator in respect of a declared electrical service provided by the electricity provider; and(b) the date on or before which the expenses are to be paid by the electricity provider.(4) In determining an amount to be specified in a notice of expenses in relation to a relevant activity of the Regulator, the Regulator is to fairly apportion the total of the expenses, reasonably incurred by the Regulator, arising from the activity, between all electricity providers that provide the declared electrical service to which the activity relates.(5) A date specified in a notice to an electricity provider in accordance with subregulation (3)(b) is not to be earlier than 30 days after the notice is sent to the electricity provider.(6) An electricity provider to which an expenses notice is sent is liable to pay, to the Regulator, on or before the date specified in the notice as the date by which the amount is to be paid, the amount of the expenses specified in the notice.(7) The Regulator may recover in a court of competent jurisdiction, as a debt due and owing, an amount an electricity provider is liable to pay under subregulation (6) .
PART 3 - Contractual Relationship between Hydro-Electric Corporation and Aurora Energy
(1) In this Part –relevant period, in relation to a contractual relationship or alternative contractual arrangement referred to in this Part, means the period that –(a) begins on the date on which the relationship or arrangement comes into effect; and(b) ends on the date on which the relationship or arrangement terminates;relevant price determination, in relation to a relevant period, means one or more declared electrical service price determinations that –(a) relate to the provision of retail services to small customers; and(b) are in force during all or part of the relevant period.(2) For the purposes of this Part, the Treasurer may only be satisfied that the terms and conditions of –are adequate, if the Treasurer holds the relevant opinion.(a) a contractual relationship established, or to be established, under regulation 24 ; or(b) an alternative contractual arrangement referred to in this Part –(3) The Treasurer holds the relevant opinion if he or she is of the opinion that the effect of the terms and conditions of the relationship or arrangement is that Aurora Energy may expect that it will not cost Aurora Energy more, during the relevant period, to provide the declared electrical services to small customers as a whole, than Aurora Energy is permitted, under a relevant price determination in relation to the relevant period, to charge those customers as a whole for those services.
24. Establishment of contractual relationship
(1) A contractual relationship is established between Aurora Energy and the Hydro-Electric Corporation on the date on which the terms and conditions of the relationship come into effect under regulation 25(6) .(2) The contractual relationship established under subregulation (1) terminates –(a) on the date specified, in accordance with regulation 25(3)(b) in a term of the relationship approved under regulation 25(1) , as the date on which the terms and conditions of the contractual relationship terminate; or(b) if the date referred to in paragraph (a) is amended or substituted under regulation 26 , on the date as so amended or substituted.
25. Terms and conditions of contractual relationship
(1) The Treasurer may approve the terms and conditions of a contractual relationship, which relationship is to be established under regulation 24 , by publishing in the Gazette a notice setting out those terms and conditions.(2) The Treasurer may only approve under subregulation (1) the terms and conditions of a contractual relationship if –(a) the Treasurer is satisfied that the terms and conditions of the contractual relationship are adequate; and(b) Aurora Energy has not notified the Treasurer in writing that there is in place, between Aurora Energy and the Hydro-Electric Corporation, an alternative contractual arrangement which will be in force at the time the terms and conditions of the contractual relationship would come into effect; and(c) the Treasurer is satisfied that there is no alternative contractual arrangement, the terms and conditions of which are adequate, which will be in place between Aurora Energy and the Hydro-Electric Corporation at the time the terms and conditions of the contractual relationship would come into effect.(3) The Treasurer may not approve terms and conditions under subregulation (1) unless they include –(a) a term specifying the date on which the terms and conditions come into effect; and(b) a term specifying the date on which the terms and conditions terminate.(4) The Treasurer may not specify, in accordance with subregulation (3)(a) , in the terms and conditions of a contractual relationship that are approved under subregulation (1) , a date, unless it is a date on or after the date on which the terms and conditions are so approved.(5) The Treasurer may not specify, in accordance with subregulation (3)(b) , in the terms and conditions of a contractual relationship that are approved under subregulation (1) , a date, unless it is a date before a day on which there will be no relevant price determination in force.(6) The terms and conditions of a contractual relationship that are approved under subregulation (1) come into effect on the date, specified in the terms and conditions, in accordance with subregulation (3)(a) , as the date on which the terms and conditions come into effect.
26. Amendment of terms and conditions
(1) The Treasurer, by notice published in the Gazette, may –(a) amend or substitute a term or condition approved under regulation 25(1) or a term or condition amended, substituted or added under this regulation; or(b) revoke a term or condition approved under regulation 25(1) or a term or condition amended, substituted or added under this regulation; or(c) add a new term or condition to a contractual relationship established under regulation 24 .(2) The Treasurer may only amend, substitute, revoke or add a term or condition under subregulation (1) if the prescribed requirements are satisfied.(3) The prescribed requirements are that –(a) the Treasurer has consulted with Aurora Energy and the Hydro-Electric Corporation about the notice proposed to be published under subregulation (1) ; and(b) the Treasurer is satisfied that the terms or conditions, of the contractual relationship established under regulation 24 , as in force after the notice is published under subregulation (1) , will be adequate.(4) Without otherwise limiting the generality of subregulation (1) –(a) the terms that may be amended or substituted under that subregulation include a term specifying the date on which the terms and conditions terminate; and(b) a term specifying the date on which the terms and conditions terminate may not be revoked.(5) The Treasurer may not amend or substitute under subregulation (1) a term, of a contractual relationship established under regulation 24 , specifying the date on which the terms and conditions of the contractual relationship terminate, unless the date specified in the term, as so amended or substituted, is a date before a day on which there will be no retail price determination in force.(6) The Treasurer must, under subregulation (1) , amend or substitute a term specifying the date on which the terms and conditions of a contractual relationship terminate, if –(a) the Treasurer is satisfied that on the date as so amended or substituted there will be in place between Aurora Energy and the Hydro-Electric Corporation an alternative contractual arrangement, the terms and conditions of which are adequate; and(b) the date will be in accordance with subregulation (5) .(7) Subregulation (2) does not apply to an amendment or substitution under subregulation (1) of a term specifying the date on which the terms and conditions of a contractual relationship will terminate.
27. Aurora Energy to notify Treasurer if adequate alternative contractual arrangement in place
Aurora Energy must notify the Treasurer in writing as soon as practicable after entering into an alternative contractual arrangement with the Hydro-Electric Corporation that contains terms and conditions that the Treasurer may be satisfied are adequate.
28. Enforcement of contractual relationship
A contractual relationship that is established under regulation 24 is enforceable in a court of competent jurisdiction in the same manner as a contract may be enforced.
PART 4 - Miscellaneous
A person must not take, or threaten to take, any action that detrimentally affects the employment of another person because that other person has assisted, is assisting or intends to assist the Regulator in respect of any matter under these regulations, including but not limited to a declared electrical service pricing investigation under these regulations.Penalty: Fine not exceeding 100 penalty units.
30. Determination of AER not reviewable
For the purposes of the definition of reviewable decision in section 3 of the Act, a direction, decision, or determination, made by the AER when performing or exercising functions or powers under the Act, these regulations or the Code that are conferred on it by section 16C of the Act is declared not to be reviewable.
A document is effectively provided, served or given to a person under these regulations, if –(a) in the case of a natural person, it is –(i) given to the person; or(ii) left at, or sent by post to, the person's postal or residential address or place or address of business employment last known to the server of the document; or(iii) faxed to the person's fax number; or(iv) emailed to the person's email address; or(b) in the case of any other person, it is –(i) left at, or sent by post to, the person's principal or registered office or principal place of business; or(ii) faxed to the person's fax number; or(iii) emailed to the person's email address.
32. Notices are not statutory rules
An instrument, notice or report under these Regulations is not a statutory rule for the purposes of the Rules Publication Act 1953 .
33. Saving of declarations and price determinations
(1) In this regulation –commencement day means the day on which these regulations take effect;former retail declaration means the amendment, dated 24 March 2010, of the declaration of a declared electrical service, within the meaning of the rescinded regulations, relating to retail services for non-contestable customers on mainland Tasmania provided by Aurora Energy Pty Ltd;rescinded regulations means the Electricity Supply Industry (Price Control) Regulations 2003 as in force immediately before the commencement day.(2) Despite the rescission of the Electricity Supply Industry (Price Control) Regulations 2003 by these regulations –continue in force as if they were each a declaration of a declared electrical service made under these regulations and may, accordingly, be revoked or amended under these regulations.(a) any declaration of a declared electrical service, within the meaning of the rescinded regulations, that was in force immediately before the commencement day; and(b) the former retail declaration –(3) A reference in the former retail declaration to a non-contestable customer is to be taken, after the commencement day, to be a reference to a small customer.(4) A declared electrical service price determination, within the meaning of the rescinded regulations, that had not been revoked or expired under the former regulations is, as amended, if at all, to be taken to be a declared electrical service price determination, within the meaning of these regulations and may, accordingly, be revoked or amended under these regulations.(5) In the declared electrical service price determination dated 29 October 2010 –(a) a reference to a non-contestable tariff customer is to be taken to be a reference to a small customer who is eligible to take supply under tariffs described in Schedule 2(a) of the determination; and(b) a reference to the Tariff Customers Regulations is to be taken to be a reference to the Act; and(c) in the definition of Taxy in clause 7 of the determination, the words after "approved by the Regulator" are taken to be omitted; and(d) a reference to the Electricity Supply Industry (Price Control) Regulations 2003 or the Price Control Regulations (other than the reference in the definition of Investigation in clause 2 of the determination) is to be taken to be a reference to these regulations.
The legislation specified in Schedule 1 is rescinded.
SCHEDULE 1 - Legislation rescinded
Electricity Supply Industry (Price Control) Regulations 2003 (No. 54 of 2003) | Electricity Supply Industry (Price Control) Amendment Regulations 2007 (No. 87 of 2007) | Electricity Supply Industry (Price Control) Amendment Regulations 2012 (No. 23 of 2012) |
Displayed and numbered in accordance with the Rules Publication Act 1953.
Notified in the Gazette on 29 June 2012
These regulations are administered in the Department of Treasury and Finance.
EXPLANATORY NOTE
(This note is not part of the regulation)
These regulations, made under the Electricity Supply Industry Act 1995 –(a) enable the making of price determinations, investigations in relation to the making of such determinations, and the charging of certain fees in relation to such determinations and investigations; and(b) establish, in certain circumstances, certain contractual relationships between electricity entities; and(c) rescind the Electricity Supply Industry (Price Control) Regulations 2003 and regulations amending those regulations; and(d) continue in force, with certain amendments, certain declarations and determinations in force under the Electricity Supply Industry (Price Control) Regulations 2003 .