Electricity Supply Industry (Price Control) Regulations 2003
I, the Lieutenant-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 .
16 June 2003W. J. E. COX
Lieutenant-Governor
By His Excellency's Command,
DAVID CREAN
Treasurer
PART 1 - Preliminary
These regulations may be cited as the Electricity Supply Industry (Price Control) Regulations 2003 .
(1) Regulation 44 takes effect on 1 January 2004.(2) The remaining provisions of these regulations take effect on the day on which the making of these regulations is notified in the Gazette.
In these regulations –Act means the Electricity Supply Industry Act 1995 ;[Regulation 3 Amended by S.R. 2010, No. 66, Applied:01 Jul 2010]amend means –[Regulation 3 Amended by S.R. 2010, No. 66, Applied:01 Jul 2010](a) omit any matter; or(b) insert or add any matter; or(c) omit any matter and substitute any other matter;Aurora Energy means Aurora Energy Pty Ltd (ABN 85 082 464 622);[Regulation 3 Amended by S.R. 2010, No. 66, Applied:01 Jul 2010][Regulation 3 Amended by S.R. 2010, No. 66, Applied:01 Jul 2010] Cabinet record means a record which –[Regulation 3 Amended by S.R. 2010, No. 66, Applied:01 Jul 2010](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 declared electrical service means a declaration made under regulation 19 ;declared electrical service means a good or service declared under regulation 19 to be a declared electrical service;declared electrical service price determination means a determination made under regulation 31 ;declared electrical service pricing investigation means an investigation conducted under regulation 23(1) or (6) ;distribution service means the distribution of electricity or another service related to the distribution of electricity;dividend includes a dividend within the meaning of the Government Business Enterprises Act 1995 ;[Regulation 3 Amended by S.R. 2010, No. 66, Applied:01 Jul 2010]function includes duty;[Regulation 3 Amended by No. 78 of 2005, s. 38, Applied:15 Dec 2005] [Regulation 3 Amended by S.R. 2010, No. 66, Applied:01 Jul 2010][Regulation 3 Amended by S.R. 2010, No. 66, Applied:01 Jul 2010] Hydro-Electric Corporation means the corporation continued by the Hydro-Electric Corporation Act 1995 ;ministerial charter has the same meaning as in the Government Business Enterprises Act 1995 ;notice of declared electrical service pricing investigation means the notice given under regulation 24 ;[Regulation 3 Amended by S.R. 2010, No. 66, Applied:01 Jul 2010]price includes charge and tariff;[Regulation 3 Amended by S.R. 2010, No. 66, Applied:01 Jul 2010]pricing policies includes policies relating to the level or structure of prices for goods or services;provide includes the supply of electricity, where appropriate;[Regulation 3 Amended by S.R. 2007, No. 87, Applied:26 Sep 2007] regional reference node has the same meaning as in the National Electricity Rules;[Regulation 3 Amended by S.R. 2010, No. 66, Applied:01 Jul 2010] relevant tax means a tax, charge, levy, duty or imposition that is directly attributable to the provision of a service specified in a transmission determination or a declared electrical service and, in the opinion of the Regulator, is not normally absorbed by businesses in a fully competitive market, but does not include –[Regulation 3 Amended by S.R. 2010, No. 66, Applied:01 Jul 2010](a) an income tax, income tax equivalent, fringe benefits tax or capital gains tax; or(b) a tax, charge, levy, duty or imposition that replaces a tax referred to in paragraph (a) ; or(c) [Regulation 3 Amended by No. 78 of 2005, s. 38, Applied:15 Dec 2005] a fee or charge payable under the Act, the regulations, the Code or the National Electricity Rules; or(d) a renewable energy shortfall charge under section 36 of the Renewable Energy (Electricity) Act 2000 of the Commonwealth; or(e) an amount payable under a contract; or(f) a fine or other penalty;tariff customer means a customer who is supplied with electricity on the basis of a tariff under a contract in force by reason of section 39A of the Act;Tasmanian newspaper means a newspaper published and circulating generally in Tasmania;[Regulation 3 Amended by S.R. 2010, No. 66, Applied:01 Jul 2010] tax event, in relation to a transmission determination or a declared electrical service price determination, means –(a) the imposition on an electricity entity 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 entity is required to pay, whether directly or by reason of an adjustment under a contract of an amount payable under that contract, in respect of relevant taxes from the amount it was so required to pay at the time the determination was made; or(c) the removal of a relevant tax which results in a change in an amount an electricity entity is required to pay, whether directly or by reason of an adjustment under a contract of an amount payable under that contract, in respect of relevant taxes from the amount it was so required to pay at the time the determination was made;[Regulation 3 Amended by S.R. 2010, No. 66, Applied:01 Jul 2010] transmission determination means a transmission determination made in accordance with the National Electricity Rules.[Regulation 3 Amended by S.R. 2010, No. 66, Applied:01 Jul 2010]
These regulations bind the Crown in right of Tasmania and, so far as the legislative power of Parliament permits, in all its other capacities.
PART 2 - . . . . . . . .[Part 2 Rescinded by S.R. 2010, No. 66, Applied:01 Jul 2010]
Division 1 - . . . . . . . .[Division 1 of Part 2 Rescinded by S.R. 2010, No. 66, Applied:01 Jul 2010] [Regulation 5 Rescinded by S.R. 2010, No. 66, Applied:01 Jul 2010] . . . . . . . .
Division 2 - . . . . . . . .[Division 2 of Part 2 Rescinded by S.R. 2010, No. 66, Applied:01 Jul 2010] [Regulation 6 Rescinded by S.R. 2010, No. 66, Applied:01 Jul 2010] . . . . . . . . [Regulation 7 Rescinded by S.R. 2010, No. 66, Applied:01 Jul 2010] . . . . . . . . [Regulation 8 Rescinded by S.R. 2010, No. 66, Applied:01 Jul 2010] . . . . . . . . [Regulation 9 Rescinded by S.R. 2010, No. 66, Applied:01 Jul 2010] . . . . . . . . [Regulation 10 Rescinded by S.R. 2010, No. 66, Applied:01 Jul 2010] . . . . . . . . [Regulation 11 Rescinded by S.R. 2010, No. 66, Applied:01 Jul 2010] . . . . . . . . [Regulation 12 Rescinded by S.R. 2010, No. 66, Applied:01 Jul 2010] . . . . . . . .
Division 3 - . . . . . . . .[Division 3 of Part 2 Rescinded by S.R. 2010, No. 66, Applied:01 Jul 2010] [Regulation 13 Rescinded by S.R. 2010, No. 66, Applied:01 Jul 2010] . . . . . . . . [Regulation 14 Rescinded by S.R. 2010, No. 66, Applied:01 Jul 2010] . . . . . . . . [Regulation 15 Rescinded by S.R. 2010, No. 66, Applied:01 Jul 2010] . . . . . . . . [Regulation 16 Subregulation (1) amended by No. 78 of 2005, s. 46, Applied:01 Jan 2008] [Regulation 16 Subregulation (1) amended by No. 78 of 2005, s. 46, Applied:01 Jan 2008] [Regulation 16 Subregulation (1) amended by No. 78 of 2005, s. 39, Applied:15 Dec 2005] [Regulation 16 Rescinded by S.R. 2010, No. 66, Applied:01 Jul 2010] . . . . . . . .
Division 4 - . . . . . . . .[Division 4 of Part 2 Rescinded by S.R. 2010, No. 66, Applied:01 Jul 2010] [Regulation 17 Subregulation (3) amended by No. 78 of 2005, s. 40, Applied:15 Dec 2005] [Regulation 17 Rescinded by S.R. 2010, No. 66, Applied:01 Jul 2010] . . . . . . . .
PART 3 - Declared Electrical Service Price Determinations and Investigations
Division 1 - Preliminary
18. How prices and price control mechanisms may be expressed
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.
19. Declaration of declared electrical service
(1) In this regulation,[Regulation 19 Subregulation (1) amended by S.R. 2010, No. 66, Applied:01 Jul 2010] good or service provided by an electricity entity includes the sale and supply of electricity but does not include a service specified in a transmission determination which is in force.(2) The Regulator, by notice published in the Gazette, may declare a good or service provided by an electricity entity to be a declared electrical service if the Regulator is of the opinion that –(a) the electricity entity has substantial market power in respect of that good or service; and(b) the promotion of competition, efficiency or the public interest requires the making of the declaration.(3) Before making a declaration under subregulation (2) , the Regulator must –(a) give written notice of his or her intention to make the declaration, and the reasons for making the declaration, to each electricity entity providing the good or service; and(b) publish that notice in such daily Tasmanian newspapers as the Regulator considers appropriate; and(c) allow the electricity entity and any other person to make written submissions to the Regulator with respect to the matter within such reasonable time as is specified in that notice.(4) A declaration of declared electrical service takes effect on the day the notice making the declaration is published in the Gazette or on a later day specified in the notice.
20. Amendment of declaration of declared electrical service
(1) The Regulator, by notice published in the Gazette, may amend a declaration of declared electrical service.(2) Regulation 19(3) and (4) applies in respect of an amendment to a declaration of declared electrical service as if the amendment were such a declaration.(3) If a declaration of declared electrical service is amended, the amendment does not invalidate an investigation in respect of the good or service to which the declaration relates that is being conducted at the time of the amendment.
21. Revocation of declaration of declared electrical service
[Regulation 22 Amended by No. 78 of 2005, s. 42, Applied:15 Dec 2005] [Regulation 22 Rescinded by S.R. 2010, No. 66, Applied:01 Jul 2010] . . . . . . . .(1) [Regulation 21 Subregulation (1) amended by No. 78 of 2005, s. 41, Applied:15 Dec 2005] The Regulator, by notice published in the Gazette, may revoke a declaration of declared electrical service in respect of a declared electrical service that is a distribution service if the Regulator is of the opinion that the revocation is appropriate as a consequence of the application in Tasmania of Chapter 6 of the National Electricity Rules to the regulation of network pricing for distribution systems.(2) The Regulator, by notice published in the Gazette, may revoke a declaration of declared electrical service in respect of a declared electrical service that is not a distribution service if the Regulator is of the opinion –(a) that no electricity entity providing the declared electrical service has 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 19(3) applies in respect of a revocation of a declaration of declared electrical service as if the revocation were such a declaration.(4) The revocation of a declaration of declared electrical service takes effect on the day specified in the notice revoking that declaration.
Division 2 - Investigations
23. Requirement to investigate
(1) The Regulator is to conduct in accordance with this Division an investigation into the pricing policies of an electricity entity in respect of a declared electrical service.(2) Not later than 6 months before a declared electrical service price determination relating to a declared electrical service expires, the Regulator is to invite submissions on whether the declaration of declared electrical service should be 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; and(c) be provided to –(i) the Minister; and(ii) each electricity entity providing the declared electrical service; and(d) be published in such daily Tasmanian newspapers as the Regulator considers appropriate.(4) On the expiry of the period within which submissions may be made under the invitation referred to in subregulation (2) , the Regulator is to determine whether to revoke or retain the declaration of declared electrical service.(5) If the Regulator determines to revoke the declaration of declared electrical service –(a) he or she is to do so; and(b) regulation 21(3) does not apply in respect of the revocation.(6) If the Regulator determines to retain the declaration of declared electrical service, he or she is to conduct, within a reasonable time, an investigation into the pricing policies of the electricity entity providing the declared electrical service.
24. Notice of declared electrical service pricing investigation
(1) Before conducting a declared electrical service pricing investigation, the Regulator is to give notice of the investigation –(a) in writing to the Minister and each electricity entity providing the declared electrical service which is the subject of the investigation; and(b) in such daily Tasmanian newspapers as the Regulator considers appropriate.(2) A notice of declared electrical service pricing investigation is to specify –(a) the purpose of the declared electrical service pricing investigation and the declared electrical service to be investigated; and(b) the day by which the Regulator is to complete the declared electrical service pricing investigation; and(c) the period within which, and the form in which, submissions may be made to the Regulator; and(d) the matters that the Regulator would like submissions to address.(3) If the Regulator changes any of the matters referred to in subregulation (2) , the Regulator is to give notice of that change –(a) in writing to the Minister and each electricity entity providing the declared electrical service; and(b) in such daily Tasmanian newspapers as the Regulator considers appropriate.
25. Conduct of declared electrical service pricing investigation
(1) The Regulator is to conduct a declared electrical service pricing investigation in accordance with a notice of declared electrical service pricing investigation.(2) For the purposes of conducting a declared electrical service pricing investigation but subject to these regulations, the Regulator may do anything he or she considers necessary or convenient.(3) In conducting a declared electrical service pricing investigation, the Regulator is to –(a) [Regulation 25 Subregulation (3) amended by S.R. 2010, No. 66, Applied:01 Jul 2010] . . . . . . . .(b) receive submissions in the form specified in the notice of declared electrical service pricing investigation.(4) Subject to these regulations, the Regulator may conduct a declared electrical service pricing investigation in the manner he or she considers appropriate and, in particular, may –(a) [Regulation 25 Subregulation (4) amended by S.R. 2010, No. 66, Applied:01 Jul 2010] consult with any person; or(b) [Regulation 25 Subregulation (4) amended by S.R. 2010, No. 66, Applied:01 Jul 2010] hold seminars; or(ba) [Regulation 25 Subregulation (4) amended by S.R. 2010, No. 66, Applied:01 Jul 2010] hold hearings; or(c) [Regulation 25 Subregulation (4) amended by S.R. 2010, No. 66, Applied:01 Jul 2010] conduct workshops; or(d) determine whether any person wishing to appear before the Regulator may be represented by another person.(5) In conducting a declared electrical service pricing investigation, the Regulator is not bound by rules of evidence but may inform himself or herself of any matter in any manner he or she considers appropriate.
(1) [Regulation 26 Subregulation (1) amended by S.R. 2010, No. 66, Applied:01 Jul 2010] 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 such daily Tasmanian newspapers as 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) [Regulation 26 Subregulation (6) substituted by S.R. 2010, No. 66, Applied:01 Jul 2010] 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.
27. Requiring person to give evidence or provide document
(1) For the purposes of a declared electrical service pricing investigation, the Regulator may require a person, by written notice provided to 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 who attends before the Regulator under a requirement referred to in subregulation (1)(a) may, at the Regulator's discretion, be paid by the Regulator reasonable allowances and expenses as determined by the Regulator.(3) If a person is required under subregulation (1)(a) to attend before the Regulator and answer questions, the Regulator may determine whether the person may be represented by another person.(4) 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.
28. 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 27(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; 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 27(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 100 penalty units.(4) [Regulation 28 Subregulation (4) substituted by S.R. 2010, No. 66, Applied:01 Jul 2010] 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 27(1) , or part of any such answer, document or other information, except where –(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) [Regulation 28 Subregulation (5) amended by S.R. 2010, No. 66, Applied:01 Jul 2010] 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 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 and is to –(a) provide a copy of the draft report to –(i) the Minister; and(ii) each electricity entity providing the declared electrical service which is the subject of the investigation; and(b) make copies of the draft report, in both electronic and printed form, available to members of the public on payment of the reasonable fee, if any, determined by the Regulator.(2) The Regulator is to allow persons to make submissions to him or her in respect of the draft report.
Division 3 - Action following declared electrical service pricing investigation
(1) In accordance with the notice of declared electrical service pricing investigation and after considering any submission made under regulation 29(2) , 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) each electricity entity providing the declared electrical service which is the subject of the declared electrical service pricing investigation; and(c) publish in such daily Tasmanian newspapers as the Regulator considers appropriate notice that the report is available for purchase.(2) The final report is to –(a) be consistent with the Act and the regulations; and(b) report in relation to the appropriate prices that may be charged by, or the appropriate price control mechanisms to be imposed on, an electricity entity in respect of the declared electrical service which is the subject of the declared electrical service pricing investigation during the period specified in the report.(3) As soon as practicable after the final report is completed, the Regulator is to ensure that copies of it, in both electronic and printed form, are available to members of the public on payment of the reasonable fee, if any, determined by the Regulator.
31. Declared electrical service price determination
(1) After completing the final report, the Regulator is to make a determination that regulates the prices that may be charged by, and specifies the price control mechanisms imposed on, an electricity entity during the period specified in the determination in respect of the declared electrical service that was the subject of the report.(2) A declared electrical service price determination is to specify the day on which the determination expires.(3) A declared electrical service price determination –(a) is to allow for an adjustment to the prices that may be charged by, and the price control mechanisms imposed on, an electricity entity under the determination as a result of a tax event and 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; and(b) [Regulation 31 Subregulation (3) amended by S.R. 2010, No. 66, Applied:01 Jul 2010] . . . . . . . .(c) in the case of a declared electrical service that is or includes the sale and supply of electricity by Aurora Energy to tariff customers –(i) is to allow for an adjustment to the prices that may be charged by, and the price control mechanisms imposed on, an electricity entity under the determination as a result of a change in the costs to the electricity entity from the purchase of renewable energy certificates, within the meaning of the Renewable Energy (Electricity) Act 2000 of the Commonwealth, in connection with the provision of that service; and(ii) 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; and(d) may establish a performance incentive scheme for an electricity entity and, if it does so, is to specify the method of calculating the adjustment to the prices that may be charged by, and the price control mechanisms imposed on, the electricity entity under the determination as a result of that scheme or the principles and general manner to be applied in making the adjustment or doing the calculation of the adjustment.(4) [Regulation 31 Subregulation (4) amended by S.R. 2010, No. 66, Applied:01 Jul 2010] [Regulation 31 Subregulation (4) amended by S.R. 2010, No. 66, Applied:01 Jul 2010] In specifying in a declared electrical service price determination the method of calculating an adjustment referred to in subregulation (3)(a) or (c) or the principles and general manner to be applied in making the adjustment or doing the calculation of the adjustment, the Regulator is to ensure that the adjustment reflects the full financial effect to the electricity entity of the tax event or change.(5) A declared electrical service price determination may have a differential application that varies according to factors stated in the determination.
32. Principles to be given effect
(1) In this regulation –[Regulation 32 Subregulation (1) amended by S.R. 2010, No. 66, Applied:01 Jul 2010] ancillary services means ancillary services as defined in the National Electricity Rules;[Regulation 32 Subregulation (1) amended by S.R. 2010, No. 66, Applied:01 Jul 2010] notional electricity generator means a notional new electricity generating plant, located on mainland Tasmania, intending to generate electricity using a source of energy available on mainland Tasmania;[Regulation 32 Subregulation (1) amended by S.R. 2010, No. 66, Applied:01 Jul 2010] regulated service means a service to which a transmission determination applies.[Regulation 32 Subregulation (1) amended by No. 78 of 2005, s. 43, Applied:15 Dec 2005] [Regulation 32 Subregulation (1) amended by S.R. 2010, No. 66, Applied:01 Jul 2010](2) [Regulation 32 Subregulation (2) amended by S.R. 2010, No. 66, Applied:01 Jul 2010] In making a declared electrical service price determination, the Regulator is to give effect to the principle that the cost of an electricity entity obtaining a regulated service that is necessary to enable the provision of the declared electrical service that is the subject of the declared electrical service price determination is to be calculated by taking into account the price or charge determined by the electricity entity supplying the regulated service in accordance with the National Electricity Rules and any relevant transmission determination.(3) [Regulation 32 Subregulation (3) substituted by S.R. 2007, No. 87, Applied:26 Sep 2007] [Regulation 32 Subregulation (3) substituted by S.R. 2010, No. 66, Applied:01 Jul 2010] 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 non-contestable customers on mainland Tasmania, the Regulator is to make an estimate of electricity supply costs.(4) [Regulation 32 Subregulation (4) omitted by S.R. 2007, No. 87, Applied:26 Sep 2007] [Regulation 32 Subregulation (4) substituted by S.R. 2010, No. 66, Applied:01 Jul 2010] An estimate of electricity supply costs made by the Regulator under subregulation (3) –(a) must take into consideration the price Aurora Energy would pay to purchase electricity in Victoria and transport the electricity to mainland Tasmania for supply to non-contestable customers on mainland Tasmania; and(b) must be more than or equal to the long-run marginal cost of electricity generation by a notional electricity generator to supply electricity to non-contestable customers on mainland Tasmania.(5) [Regulation 32 Subregulation (5) inserted by S.R. 2010, No. 66, Applied:01 Jul 2010] When determining, for the purpose of subregulation (4)(b) , if an estimate of electricity supply costs is more than or equal to 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.(6) [Regulation 32 Subregulation (6) inserted by S.R. 2010, No. 66, Applied:01 Jul 2010] The Regulator may, once in any 6-month period, amend an estimate of electricity supply costs made in accordance with this regulation, if the Regulator –(a) considers the determination made under subregulation (5) no longer satisfies or takes into consideration the matters referred to in that subregulation; or(b) considers it otherwise necessary to do so.(7) [Regulation 32 Subregulation (7) inserted by S.R. 2010, No. 66, Applied:01 Jul 2010] If the Regulator amends an estimate of electricity supply costs under subregulation (6) , the Regulator is to notify Aurora Energy of the amendment.
(1) In this regulation –distribution tariff means the schedule of fees (including the rate or rates) which an electricity entity that holds a licence authorising the distribution of electricity uses to calculate the amount it charges customers, or a class of customers, for network services, as amended from time to time;small customer means a customer who is supplied with electricity at low voltage.(2) In making a declared electrical service price determination, 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 entity in relation to prices, pricing policies and standards of service in respect of the provision of the declared electrical service;(d) the principle that the distribution tariff for small customers belonging to a particular class (other than the distribution tariff relating to the supply of electricity to small customers on King Island or Flinders Island) is to be uniform, regardless of where in mainland Tasmania the customer is supplied with electricity;(e) the degree of competition in the electricity supply industry that is relevant to the provision of the declared electrical service;(f) the principle that there is a need for a reasonable return (including the payment of dividends) on the assets of an electricity entity;(g) 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;(h) the effects of inflation;(i) the principle that there is a need for the electricity entity to be financially viable;(j) the impact on pricing policies of any borrowing, capital, dividend and taxation or tax equivalent obligations of the electricity entity, including obligations to renew or increase assets;(k) the quality of the provision of the declared electrical service;(l) any ministerial charter, licence or obligation under the Act or the regulations that applies, or is likely to apply, to the electricity entity;(m) the Code;(ma) [Regulation 33 Subregulation (2) amended by S.R. 2010, No. 66, Applied:01 Jul 2010] the National Electricity Rules;(n) any costs (including capital expenditure) incurred by the electricity entity at the direction of the Regulator;(o) the public interest;(p) any other matter the Regulator considers relevant.
34. When declared electrical service price determination takes effect and ends
(1) In this regulation,existing determination, in relation to a declared electrical service price determination relating to a declared electrical service, means –(a) another declared electrical service price determination relating to that declared electrical service; or(b) [Regulation 34 Subregulation (1) amended by S.R. 2010, No. 66, Applied:01 Jul 2010](2) A declared electrical service price determination relating to a declared electrical service takes effect –(a) if at the time the determination is made no existing determination is in force, on the day specified in the determination; or(b) if at the time the determination is made an existing determination is in force having not yet reached its expiry date, on the expiry or revocation of that existing determination; or(c) if at the time the determination is made an existing determination is in force by reason of subregulation (5) , on the day specified in that determination.(3) A declared electrical service price determination ceases to have effect –(a) if each declaration of 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 (5) is continued after the day it would normally expire, when 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.(4) If a declared electrical service price determination relates to more than one declared electrical service and a declaration of declared electrical service in respect of any of those electrical services is revoked, the declared electrical service price determination ceases to have effect in relation to the good or service in respect of which that declaration of declared electrical service was made.(5) 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 section,adjustment means an adjustment to the prices that an electricity entity may charge, and the price control mechanisms imposed on an electricity entity, under a declared electrical service price determination –(a) as a result of the occurrence of a tax event; or(b) [Regulation 35 Subregulation (1) amended by S.R. 2010, No. 66, Applied:01 Jul 2010](c) as a result of the change in the costs to the electricity entity from the purchase of renewable energy certificates within the meaning of the Renewable Energy (Electricity) Act 2000 of the Commonwealth; or(d) under a performance incentive scheme.(2) An adjustment does not take effect until it has been approved by the Regulator.(3) [Regulation 35 Subregulation (3) amended by S.R. 2010, No. 66, Applied:01 Jul 2010] If when considering whether to approve an adjustment the Regulator determines that a tax event or a change in the costs to the electricity entity from the purchase of renewable energy certificates within the meaning of the Renewable Energy (Electricity) Act 2000 of the Commonwealth has not occurred, or that a standard of performance required for an adjustment has not been reached, the Regulator is to notify the affected electricity entity.(4) The Regulator is not to approve an adjustment unless he or she is satisfied that the adjustment has been calculated in accordance with 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, specified in the declared electrical service price determination.(5) On approving or refusing to approve an adjustment, the Regulator is to notify the affected electricity entity.
36. Revocation or amendment of declared electrical service price determination
(1) [Regulation 36 Subregulation (1) amended by S.R. 2010, No. 66, Applied:01 Jul 2010] [Regulation 36 Subregulation (1) amended by S.R. 2010, No. 66, Applied:01 Jul 2010] The Regulator may amend or revoke a declared electrical service price determination if an electricity entity to which the determination applies is materially adversely affected as a result of the making, amendment or revocation of a transmission determination.(2) The Regulator may revoke or amend a declared electrical service price determination if he or she has determined –(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(ba) [Regulation 36 Subregulation (2) amended by S.R. 2010, No. 66, Applied:01 Jul 2010] that the determination included an estimate of electricity supply costs, made under regulation 32(3) , which has subsequently been amended under regulation 32(6) ; or(c) that –(i) an electricity entity to which the determination applies is materially adversely affected by the determination as a result of an event which is beyond the electricity entity'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.(3) Before revoking or amending a declared electrical service price determination, the Regulator is to –(a) invite submissions with respect to the matter within the reasonable period specified in the invitation; and(b) consider any such submissions made to him or her.(4) The invitation referred to in subregulation (3) is to be –(a) in writing; and(b) provided to the Minister; and(c) provided to each electricity entity providing the declared electrical service to which the declared electrical service price determination relates; and(d) published in such daily Tasmanian newspapers as the Regulator considers appropriate.(5) Subject to these regulations, the Regulator may do anything he or she considers necessary or convenient for the purpose of determining whether or not to revoke or amend a declared electrical service price determination and, in this regard, regulation 25(3) , (4) and (5) and regulations 26 , 27 and 28 apply as if the Regulator were conducting a declared electrical service pricing investigation.(6) A determination revoking or amending a declared electrical service price determination –(a) takes effect on the day specified in it; and(b) is not a statutory rule within the meaning of the Rules Publication Act 1953 .
Division 4 - Costs
37. Costs of investigations and reports
(1) An electricity entity that provides a declared electrical service which is the subject of a declared electrical service pricing investigation is liable to recompense the Regulator for the whole or part of the reasonable expenses incurred by the Regulator arising from the conduct and reporting of that investigation (including expenses incurred in making the draft and final report available to the public) as determined by the Regulator by written notice provided to the electricity entity.(2) In making a determination under subregulation (1) of the amount of the recompense an electricity entity is liable to pay to the Regulator in respect of the reasonable expenses incurred by the Regulator arising from the conduct and reporting of an investigation relating to a declared electrical service, the Regulator is to fairly apportion the total of those reasonable expenses between all electricity entities involved with providing that declared electrical service.(3) The Regulator may recover in a court of competent jurisdiction, as a debt due and owing, an amount an electricity entity is liable to pay under subregulation (1) .
PART 3A - Contractual Relationship between Hydro-Electric Corporation and Aurora Energy[Part 3A Substituted by S.R. 2010, No. 66, Applied:01 Jul 2010]
[Regulation 37A Inserted by S.R. 2006, No. 68, Applied:05 Jul 2006] [Regulation 37A Substituted by S.R. 2010, No. 66, Applied:01 Jul 2010](1) In this Part –relevant period, in relation to a contractual relationship or alternative contractual arrangement, means the period beginning on the date on which the relationship or arrangement comes into effect and ending on the date on which the relationship or arrangement terminates;retail 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 tariff 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 37B ; 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 supply energy to non-contestable customers as a whole, than Aurora Energy is permitted, under any retail price determination in relation to the relevant period, to charge those customers as a whole for that supply.
37B. Establishment of contractual relationship
[Regulation 37B Inserted by S.R. 2006, No. 68, Applied:05 Jul 2006] [Regulation 37B Substituted by S.R. 2010, No. 66, Applied:01 Jul 2010](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 37C(6) .(2) The contractual relationship established under subregulation (1) is terminated –(a) on the date specified, in accordance with regulation 37C(3)(b) in a term of the relationship approved under regulation 37C(1) , as the date on which the terms and conditions of the contractual relationship are terminated; or(b) if the date referred to in paragraph (a) is amended, varied or substituted under regulation 37D , on the date specified in the term as so amended, varied or substituted.
37C. Terms and conditions of contractual relationship
[Regulation 37C Inserted by S.R. 2006, No. 68, Applied:05 Jul 2006] [Regulation 37C Subregulation (2) amended by S.R. 2006, No. 150, Applied:27 Dec 2006] [Regulation 37C Substituted by S.R. 2010, No. 66, Applied:01 Jul 2010](1) The Treasurer may approve the terms and conditions of a contractual relationship, which is to be established under regulation 37B(1) , 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, which is to be established under regulation 37B(1) , 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 retail 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.
37D. Amendment, &c., of terms and conditions
[Regulation 37D Inserted by S.R. 2006, No. 68, Applied:05 Jul 2006] [Regulation 37D Substituted by S.R. 2010, No. 66, Applied:01 Jul 2010](1) The Treasurer may –by publishing in the Gazette a notice setting out the amendment, variation, substitution, revocation or addition.(a) amend, vary or substitute a term or condition approved under regulation 37C(1) or a term or condition amended, varied, substituted or added under this regulation; or(b) revoke a term or condition approved under regulation 37C(1) or a term or condition amended, varied, substituted or added under this regulation; or(c) add a new term or condition to a contractual relationship established under regulation 37B –(2) The Treasurer may only amend, vary, 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 37B , 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, varied 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, vary or substitute under subregulation (1) a term, of a contractual relationship established under regulation 37B , specifying the date on which the terms and conditions of the contractual relationship terminate, unless the date specified in the term, as so amended, varied 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, vary 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, varied 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, variation or substitution under subregulation (1) of a term specifying the date on which the terms and conditions of a contractual relationship will terminate.
37E. Aurora Energy to notify Treasurer if adequate alternative contractual arrangement in place
[Regulation 37E Inserted by S.R. 2006, No. 68, Applied:05 Jul 2006] [Regulation 37E Substituted by S.R. 2010, No. 66, Applied:01 Jul 2010] 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.
37F. Enforcement of contractual relationship
[Regulation 37F Inserted by S.R. 2006, No. 68, Applied:05 Jul 2006] [Regulation 37F Substituted by S.R. 2010, No. 66, Applied:01 Jul 2010] A contractual relationship that is established under regulation 37B is enforceable in a court of competent jurisdiction in the same manner as a contract may be enforced.
PART 4 - Miscellaneous
(1) A person must not –(a) [Regulation 38 Subregulation (1) amended by S.R. 2010, No. 66, Applied:01 Jul 2010] fail to comply with a requirement made under regulation 27(1) ; or(b) provide to the Regulator oral or written information or a document that the person knows or believes to be false or misleading in a material particular without informing the Regulator of that knowledge or belief; or(c) [Regulation 38 Subregulation (1) amended by S.R. 2010, No. 66, Applied:01 Jul 2010] hinder, obstruct or interfere with the Regulator or any other person in the performance and exercise of his or her functions and powers under these regulations; or(d) take, or threaten to take, any action that detrimentally affects the employment of another person because that person has assisted, is assisting or intends to assist the Regulator in an investigation under these regulations.Penalty: Fine not exceeding 100 penalty units.(2) [Regulation 38 Subregulation (2) amended by S.R. 2010, No. 66, Applied:01 Jul 2010] Despite subregulation (1) , a natural person is not required to comply with a requirement made under regulation 27(1) if to do so would tend to incriminate him or her.
39. Determinations of AER not reviewable
[Regulation 39 Amended by No. 78 of 2005, s. 44, Applied:15 Dec 2005] For the purposes of the definition of "reviewable decision" in section 3 of the Electricity Supply Industry Act 1995 , 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 that Act is declared not to be reviewable.[Regulation 40 Rescinded by S.R. 2010, No. 66, Applied:01 Jul 2010] . . . . . . . .
A document is effectively provided, served or given to a person under these regulations if –[Regulation 42 Rescinded by S.R. 2010, No. 66, Applied:01 Jul 2010] . . . . . . . . [Regulation 43 Rescinded by S.R. 2010, No. 66, Applied:01 Jul 2010] . . . . . . . . [Regulation 44 Rescinded by S.R. 2010, No. 66, Applied:01 Jul 2010] . . . . . . . .(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.
SCHEDULE 1[Schedule 1 Inserted by S.R. 2006, No. 68, Applied:05 Jul 2006] [Schedule 1 Rescinded by S.R. 2010, No. 66, Applied:01 Jul 2010]
SCHEDULE 2[Schedule 2 Inserted by S.R. 2007, No. 87, Applied:26 Sep 2007] [Schedule 2 Rescinded by S.R. 2010, No. 66, Applied:01 Jul 2010]
Displayed and numbered in accordance with the Rules Publication Act 1953.
Notified in the Gazette on 18 June 2003
These regulations are administered in the Department of Treasury and Finance.