Electricity Supply Industry (Contestable Customer) Regulations 2005

Electricity Supply Industry (Contestable Customer) Regulations 2005

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 .

W. J. E. COX

Governor

By His Excellency's Command,

P. A. LENNON

Treasurer

PART 1 - Preliminary

1.   Short title

These regulations may be cited as the Electricity Supply Industry (Contestable Customer) Regulations 2005 .

2.   Commencement

These regulations take effect on the day on which section 34 of the Electricity Supply Industry Amendment Act 2003 commences.

3.   Interpretation

In these regulations –

Act means the Electricity Supply Industry Act 1995 ;

Aurora Energy means Aurora Energy Pty Ltd (ABN 85 082 464 622);

Aurora Retail means Aurora Energy in its capacity as the holder of a licence under the Act authorising operations in respect of the retailing of electricity;

connection point has the same meaning as in the National Electricity Rules;

consumption level means the electricity consumed at a single site as assessed under regulation 9 ;

National Electricity Rules means the National Electricity Rules made in accordance with the National Electricity Law;

qualifying period means a qualifying period set out in Column 2 of the Table in regulation 8(1) ;

regional reference node has the same meaning as in the National Electricity Rules;

single site has the meaning given by regulation 6 ;

spot price has the same meaning as in the National Electricity Rules;

wholesale pool price means the spot price at the regional reference node for the Tasmanian region of the National Electricity Market determined under the National Electricity Rules.

4.   Application of regulations

These regulations apply to customers in respect of single sites that are connected –

(a) directly to the transmission network operated by Transend Networks Pty Ltd (ABN 57 082 586 892); or

(b) indirectly to that network by means of a distribution network.

5.   Customer retail services

For the purpose of paragraph (b) of the definition of customer retail services in section 3 of the Act, the following are prescribed services:

(a) the connection of premises to a distribution network or transmission network for the purposes of the supply of electricity;

(b) the supply of electricity from a distribution network or transmission network to premises.

6.   Single site

(1)  In this regulation –

title means –

(a) an area of land recorded on a folio in the Register under the Land Titles Act 1980 ; or

(b) if the area of land is not registered under the Land Titles Act 1980 , that area of land as described as a separate parcel in a deed registered under the Registration of Deeds Act 1935 ; or

(c) an area of land that is Crown land in respect of which a lease, or a licence which includes a right of occupancy, is granted under any Act.

(2)  Regardless of the number of buildings or other structures on or at an area of land, that area is a single site if it –

(a) consists of one or more titles, or part of a title, to which electricity is supplied by a single connection point; or

(b) consists of one or more areas of land determined by the Regulator to be a single site under subregulation (5) .

(3)  If a customer owns or occupies one or more areas of land to which electricity is supplied by more than one connection point, the customer may apply to the Regulator for a determination that the area or areas is or are a single site if –

(a) the area or areas consist of one title; or

(b) the area or areas consist of more than one title and each title –

(i) shares a boundary with at least one of the other titles; or

(ii) would share a boundary with at least one of the other titles if the titles were not separated by a road or watercourse.

(4)  An application under subregulation (3) is to be –

(a) in writing; and

(b) provided to the Regulator.

(5)  On receipt of an application under subregulation (3) , the Regulator is to determine that the area or areas of land are a single site if he or she is satisfied that –

(a) the area or areas consist of one title; or

(b) the area or areas consist of more than one title and each title –

(i) shares a boundary with at least one of the other titles; or

(ii) would share a boundary with at least one of the other titles if the titles were not separated by a road or watercourse.

(6)  A determination by the Regulator under subregulation (5)  –

(a) is to be given to the customer and Aurora Retail, in writing, as soon as practicable after the determination is made; and

(b) is not a reviewable decision.

PART 2 - Contestable customers

7.   Contestable customer

For the purposes of the definition of customer retail services in section 3 of the Act, a customer is a contestable customer in respect of a single site if the customer –

(a) has become a contestable customer in respect of that site under regulation 8 ; or

(b) has become a contestable customer under regulation 11(6) .

8.   Becoming a contestable customer

(1)  A customer becomes a contestable customer in respect of a single site on the date specified in Column 1 of the following Table if the customer's consumption level of electricity for that site for the adjacent qualifying period set out in Column 2 of that Table is equal to or greater than the adjacent consumption level set out in Column 3 of that Table:

	Column 1 (Date)	Column 2 (Qualifying period)	Column 3 (Consumption level)
1.	1 July 2006	12 months ending on 30 June 2005	20 gigawatt hours
2.	1 July 2007	12 months ending on 30 June 2006	4 gigawatt hours
3.	1 July 2008	12 months ending on 30 June 2007	0.75 gigawatt hours
4.	Each subsequent 1 July	12 months ending on 30 June in the immediately preceding calendar year	0.15 gigawatt hours

(2)  A contestable customer remains a contestable customer in respect of a single site regardless of any fluctuation in the consumption level for that site.

9.   Assessment of consumption level

Aurora Retail is to assess the consumption level for a single site based on the electricity accounts issued to a customer in respect of that single site for the relevant qualifying period.

10.   Advising customers of contestability

(1)  Aurora Retail must notify a customer if Aurora Retail considers that the customer is to become a contestable customer in respect of a particular qualifying period.

(2)  A notice under subregulation (1) is to be –

(a) in a form approved by the Regulator; and

(b) forwarded to the customer no later than 9 months before the day on which the customer is to become a contestable customer.

11.   Determining contestable customer in certain circumstances

(1)  A customer may apply to the Regulator for a determination of whether or not he or she is, or will become, a contestable customer on a date specified in the application in respect of a single site if –

(a) the electricity accounts for that customer at that site for the relevant qualifying period do not cover the entire qualifying period; or

(b) there are no electricity accounts for that customer at that site for the relevant qualifying period; or

(c) the customer reasonably believes that there is likely to be a significant increase in the consumption of electricity at that site within 12 months after the end of the relevant qualifying period.

(2)  An application is to include any information that the Regulator considers necessary for the determination of an application.

(3)  The Regulator may request information from any person if the Regulator believes that the information is necessary for the determination of an application.

(4)  In determining an application, the Regulator –

(a) may take into account –

(i) any previous electricity accounts for the single site; and

(ii) any other information or matter the Regulator considers appropriate; and

(b) is to estimate the likely consumption of electricity, for which no account has been issued, in respect of the relevant single site for the period specified in the application.

(5)  Having regard to all matters the Regulator considers relevant, including future and past consumption, the Regulator is to determine whether or not a customer is a contestable customer in respect of the relevant single site on a day specified in the determination.

(6)  If a customer is determined to be a contestable customer on a day specified in a determination under subregulation (5) , the customer becomes a contestable customer on that day.

(7)  A determination by the Regulator under subregulation (5)  –

(a) is to be given to the customer and Aurora Retail, in writing, as soon as practicable after the determination is made; and

(b) is not a reviewable decision.

12.   Existing contract

The classification of a customer as a contestable customer –

(a) does not affect the terms and conditions, or the operation, of any negotiated contract for the provision of customer retail services between the customer and Aurora Energy that was in force immediately before the customer became a contestable customer; and

(b) is not in itself a ground for –

(i) the termination of any existing contract; or

(ii) the payment of, or the refusal to pay, a penalty or amount required under any existing contract; and

(c) does not in itself constitute a breach of an existing contract.

PART 3 - Fallback arrangements

13.   Interpretation of Part

In this Part –

fallback contract means a contract that is the result of a contractual relationship established under regulation 14 ;

pro-forma fallback contract means a contract approved by the Regulator, and published in the Gazette, under regulation 15 , as amended or substituted from time to time under this Part.

14.   Establishment of fallback contract

(1)  [Regulation 14 Subregulation (1) amended by S.R. 2006, No. 137, Applied:19 Dec 2006] A contractual relationship is established between a contestable customer and a retailer in respect of a single site if –

(a) electricity is being supplied at that single site by means of a distribution network; and

(b) the retailer is financially responsible, within the meaning of the National Electricity Rules, for the connection point in respect of the site; and

(c) [Regulation 14 Subregulation (1) amended by S.R. 2006, No. 137, Applied:19 Dec 2006] no other contract, including a contractual relationship under these or any other regulations, or tariff covers the retailing of electricity to that site.

(2)  A contract under subregulation (1) is to –

(a) only relate to one single site; and

(b) be in the same terms and conditions as the relevant pro-forma fallback contract.

(3)  As soon as practicable after a fallback contract takes effect, the retailer is to –

(a) give written notice to the customer that the fallback contract has taken effect; and

(b) give a copy of that fallback contract to the customer.

15.   Pro-forma fallback contract

(1)  [Regulation 15 Subregulation (1) amended by S.R. 2006, No. 137, Applied:19 Dec 2006] Subject to this regulation, the terms and conditions of a draft pro-forma fallback contract, including the price of the customer retail services specified in the draft pro-forma fallback contract, are to be determined by the retailer.

(2)  [Regulation 15 Subregulation (2) amended by S.R. 2006, No. 137, Applied:19 Dec 2006] A draft pro-forma fallback contract in respect of a customer who consumed more than 0.75 gigawatt hours of electricity at one single site in the 12 months immediately preceding the establishment of the fallback contract must not specify a price, or a method of determining a price, that would result in the amount paid by a customer under the contract exceeding the cost to the retailer of supplying the customer retail services specified in the contract to the customer, taking into consideration the following amounts:

(a) the wholesale pool price;

(b) applicable distribution and transmission charges;

(c) the reasonable retail margin proposed by the retailer and approved by the Regulator;

(d) any other costs which, in the opinion of the Regulator, are incurred in connection with the provision of the customer retail service to the customer.

(3)  A draft pro-forma fallback contract in respect of a customer who consumed not more than 0.75 gigawatt hours of electricity at one single site in the 12 months immediately preceding the establishment of the fallback contract must specify a price, or a method of determining a price, that the Regulator considers reasonable.

(4)  The retailer must submit to the Regulator, within a period determined by the Regulator by notice provided to the retailer –

(a) a draft pro-forma fallback contract that specifies a price, or a method of determining a price, in accordance with subregulation (2) ; and

(b) another draft pro-forma fallback contract that specifies a price, or a method of determining a price, in accordance with subregulation (3) .

(5)  The Regulator may –

(a) approve a draft pro-forma fallback contract if the draft contract –

(i) complies with the terms of the retailer's licence; and

(ii) complies with the Act and these regulations; or

(b) refuse to approve a draft pro-forma fallback contract and require a substitute draft pro-forma fallback contract to be submitted to him or her.

(6)  The Regulator is to notify the retailer as soon as practicable of an approval, or refusal to approve, a draft pro-forma fallback contract under subregulation (5) .

(7)  If the Regulator approves a draft pro-forma fallback contract under subregulation (5) , the Regulator is to publish a copy of the draft pro-forma fallback contract in the Gazette.

(8)  A pro-forma fallback contract may be amended or substituted by the retailer –

(a) obtaining the approval of the Regulator for the amendment or substitution of the pro-forma fallback contract; and

(b) after so obtaining that approval, publishing, by notice in the Gazette, the amendment or the substituted pro-forma fallback contract.

15A.   Amendment of fallback contract

[Regulation 15A Inserted by S.R. 2006, No. 137, Applied:19 Dec 2006]

(1)  In this regulation –

prescribed services means the services prescribed under regulation 5 .

(2)  If –

(a) a fallback contract in respect of a single site contains terms and conditions relating to prescribed services; and

(b) the contestable customer is supplied with the prescribed services under a new or existing contract in respect of the single site covered by the fallback contract; and

(c) the fallback contract is still required to provide for the retailing of electricity to the single site covered by the fallback contract –

the fallback contract remains in force in respect of the retailing of electricity but is taken not to include the terms and conditions relating to the prescribed services.

16.   Cessation of fallback contract

(1)  A fallback contract is terminated when the first of the following events occurs:

(a) [Regulation 16 Subregulation (1) amended by S.R. 2006, No. 137, Applied:19 Dec 2006] a retailer, under a contract in respect of the single site covered by the fallback contract, retails electricity to the customer;

(b) the electricity supply to the single site covered by the fallback contract is disconnected;

(c) the period of 3 months, commencing on the day on which the fallback contract is established, expires.

(2)  The termination of a fallback contract does not affect any obligations, rights or liabilities arising out of or accrued under that contract.

17.   Fallback contract not to prevent prosecution

The existence of a fallback contract does not prevent legal proceedings being taken against the customer with the fallback contract, if the customer's actions constitute an offence –

(a) under section 111(1) of the Act; or

(b) of stealing under Chapter XXIV of the Criminal Code .

PART 4 - Retailer of Last Resort

18.   Interpretation of Part

In this Part –

pro-forma retailer of last resort contract means a contract approved by the Regulator, and published in the Gazette under regulation 21 , as amended or substituted from time to time under this Part;

retailer of last resort contract means a contract that is the result of a contractual relationship established under regulation 20(1) .

19.   Retailer of last resort

Aurora Energy in its capacity as the holder of a licence under the Act authorising the distribution of electricity is appointed as the retailer of last resort.

20.   Establishment of retailer of last resort contract

(1)  If any circumstances specified in section  49AA(2)(a) of the Act occur in respect of a retailer, a contractual relationship is established between a customer of that retailer affected by the circumstances and the retailer of last resort in respect of each single site for which the customer was supplied with any customer retail services by that retailer.

(2)  A contract under subregulation (1) is to be in the form of a contract in the same terms as the pro-forma retailer of last resort contract.

(3)  A retailer of last resort contract is for the supply of customer retail services by the retailer of last resort to the single site of the customer.

(4)  As soon as practicable after a retailer of last resort contract is established, the retailer of last resort is to –

(a) give written notice to the customer that the retailer of last resort contract has taken effect; and

(b) give a copy of that retailer of last resort contract to the customer.

(5)  On the establishment of a retailer of last resort contract –

(a) the customer becomes a customer of the retailer of last resort in accordance with the relevant NEMMCO market management systems; and

(b) NEMMCO must take any steps necessary under the National Electricity Rules, or under the relevant NEMMCO market management systems, for the purposes of paragraph (a) ; and

(c) any contract for the provision of any customer retail services, by the retailer in respect of which the circumstances specified in section  49AA(2)(a) of the Act occurred, to the customer in respect of the single site is terminated without affecting any obligations, rights or liabilities arising out of or accrued under that contract.

(6)  The transfer of a customer, from a retailer in respect of which a circumstance under section  49AA(2)(a) of the Act occurs to a retailer of last resort under a retailer of last resort contract, is taken to have complied with all requirements in the National Electricity Rules, and any documents made under or for the purposes of those Rules, relating to the transfer of customers.

21.   Pro-forma retailer of last resort contract

(1)  Subject to this regulation, the terms and conditions of a draft pro-forma retailer of last resort contract, including the price of the customer retail services, are to be determined by the retailer of last resort.

(2)  A draft pro-forma retailer of last resort contract must not specify a price, or a method of determining a price, that would result in the amount paid by a customer under the contract exceeding the cost to the retailer of last resort of supplying customer retail services to the customer, taking into consideration the following amounts:

(a) the wholesale pool price;

(b) applicable distribution and transmission charges;

(c) the reasonable retail margin proposed by the retailer of last resort and approved by the Regulator;

(d) any other costs which, in the opinion of the Regulator, are incurred in connection with the provision of the customer retail services to the customer.

(3)  The retailer of last resort must submit the draft pro-forma retailer of last resort contract to the Regulator.

(4)  The Regulator may –

(a) approve the draft pro-forma retailer of last resort contract if the draft contract complies with the terms of the retailer of last resort's licence, the Act and these regulations; or

(b) refuse to approve the draft pro-forma retailer of last resort contract and require a substitute draft pro-forma retailer of last resort contract to be submitted to him or her.

(5)  The Regulator is to notify the retailer of last resort as soon as practicable of an approval, or refusal to approve, a draft pro-forma retailer of last resort contract under subregulation (4) .

(6)  If the Regulator approves a draft pro-forma retailer of last resort contract under subregulation (4) , the Regulator is to publish a copy of the draft pro-forma retailer of last resort contract in the Gazette.

(7)  A pro-forma retailer of last resort contract may be amended or substituted by the retailer of last resort –

(a) obtaining the approval of the Regulator for the amendment or substitution of the pro-forma retailer of last resort contract; and

(b) after so obtaining that approval, publishing, by notice in the Gazette, the amendment or the substituted pro-forma retailer of last resort contract

22.   Guidelines for information

(1)  The Regulator is to issue guidelines in respect of information relating to a retailer of last resort contract, or the provision of customer retail services to a single site that is the subject of a retailer of last resort contract, including guidelines on the distribution of that information.

(2)  Guidelines are not statutory rules within the meaning of the Rules Publication Act 1953 .

23.   Cessation of retailer of last resort contract

(1)  A retailer of last resort contract terminates when the first of the following events occurs:

(a) the affected customer is supplied with electricity under a contract with a retailer in respect of the single site covered by the retailer of last resort contract;

(b) the electricity supply to the single site covered by the retailer of last resort contract is disconnected;

(c) the period of 3 months, commencing on the day on which the retailer of last resort contract is established, expires.

(2)  The termination of a retailer of last resort contract does not affect any obligations, rights or liabilities arising out of or accrued under that contract.

Displayed and numbered in accordance with the Rules Publication Act 1953.

Notified in the Gazette on 3 August 2005

These regulations are administered in the Department of Treasury and Finance.