Electricity Supply Industry (Pricing and Related Matters) Regulations 2013

Electricity Supply Industry (Pricing and Related Matters) Regulations 2013

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 .

PETER G. UNDERWOOD

Governor

By His Excellency's Command,

S. BACON

Minister for Finance

PART 1 - Preliminary

1.   Short title

These regulations may be cited as the Electricity Supply Industry (Pricing and Related Matters) Regulations 2013 .

2.   Commencement

These regulations take effect on 1 June 2013.

3.   Interpretation

In these regulations, unless the contrary intention appears –

Act means the Electricity Supply Industry Act 1995 ;

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;

compliance investigation means an investigation under Part 5 for the purposes of regulation 26 ;

contract includes agreement and arrangement;

daily newspaper means a daily newspaper circulating generally in Tasmania or in Australia;

declaration of a declared electrical service means a declaration made under section 40AD(1) of the Act, as the declaration is amended, if at all, under section 40AD(4) of the Act;

declared electrical service means goods, or a service, declared under section 40AD(1) of the Act to be a declared electrical service;

declared electrical service price determination means a determination made under section 40AD(5) of the Act, as the determination is amended, if at all, under section 40AD(7) of the Act;

distribution determination means a distribution determination, made in accordance with the National Electricity Rules, that is in force;

final report means a final report in respect of a pricing investigation;

function includes duty;

interim price-regulated retail service price determination means a determination made, in accordance with regulation 8 , under section 40AA(1) of the Act;

investigation, means a pricing investigation or a compliance investigation;

ministerial charter has the same meaning as it has in the Government Business Enterprises Act 1995 ;

notice of compliance investigation means, in relation to a compliance investigation, a notice in respect of the investigation that is given under regulation 27(1) , as the notice is amended, if at all, under regulation 27(4) ;

notice of pricing investigation means, in relation to a pricing investigation –

(a) a notice in respect of the investigation that is given under regulation 10(1) , as the notice is amended, if at all, under regulation 10(4) ; and

(b) a notice in respect of the investigation that is given under regulation 22(1) , as the notice is amended, if at all, under regulation 22(4) ; and

(c) a notice in respect of the investigation that is given under regulation 37(1) , as the notice is amended, if at all, under regulation 37(4) ;

price includes a tariff and a charge;

price-regulated retail service price determination means a determination made, in accordance with regulation 12 , under section 40AA(1) of the Act, as the determination is amended, if at all, under section 40AA(3) of the Act;

pricing investigation means an investigation under Part 5 for the purposes of regulation 9 , regulation 21 or regulation 34 ;

pricing policies, in relation to a pricing investigation, includes –

(a) policies relating to the level or structure of prices; and

(b) if the pricing investigation relates to an electrical service that 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 entity or authorised retailer; and

(ii) a customer at premises in the Bass Strait Islands;

provide includes, where appropriate, to supply electricity;

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, a declaration of a declared electrical service, an interim price-regulated retail service price determination or a price-regulated retail service price determination; 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;

rescinded regulations means the Electricity Supply Industry (Price Control and Related Matters) Regulations 2012 rescinded by these regulations;

tax event, in relation to a transmission determination, a distribution determination, a declared electrical service price determination, an interim price-regulated retail service price determination or a price-regulated retail service price determination, means –

(a) the imposition on an electricity entity, an authorised retailer or a regulated offer retailer 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, an authorised retailer or a regulated offer retailer is required to pay, whether –

(i) directly; or

(ii) by reason of an adjustment under a contract of an amount payable under that contract –

in respect of relevant taxes, from the amount the electricity entity, authorised retailer or regulated offer retailer was required to pay in respect of such taxes 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, an authorised retailer or a regulated offer retailer is required to pay, whether –

(i) directly; or

(ii) by reason of an adjustment under a contract of an amount payable under that contract –

in respect of relevant taxes, from the amount the electricity entity, authorised retailer or regulated offer retailer was required to pay in respect of such taxes at the time the determination was made;

transmission determination means a transmission determination, made in accordance with the National Electricity Rules, that is in force;

2013 Price Determination means the determination made on 28 March 2013 by the Regulator under regulation 22C of the rescinded regulations as in force at the time the determination was made;

[Regulation 3 Amended by No. 17 of 1996, Applied:31 Oct 2013] 2003 rescinded regulations means the Electricity Supply Industry (Price Control) Regulations 2003 , as in force before the rescinded regulations came into force.

PART 2 - Retail Pricing Determinations

Division 1 - 2013 Price Determination

4.   Continuation of 2013 retail price determination

(1)  The 2013 Price Determination is to be taken to be, until immediately before 1 January 2014, a determination made in accordance with this Part under section 40AA(1) of the Act.

(2)  Regulation 9 does not apply in relation to the determination referred to in subregulation (1) .

Division 2 - Interim price-regulated retail service price determinations

5.   Submission, investigation, &c., may relate to authorised retailer

(1)  A submission may be made under regulation 6 in relation to an authorised retailer as if the retailer were a regulated offer retailer.

(2)  If a submission is made under regulation 6 in relation to an authorised retailer as if the retailer were a regulated offer retailer –

(a) a reference in this Division to a submission in relation to the regulated offer retailer; or

(b) a reference in this Division to an interim investigation, or an interim price-regulated retail service price determination, in relation to the regulated offer retailer –

is to be taken to be a reference to the authorised retailer to which the submission relates.

6.   Ministerial submission in respect of 2014 Price Determination

(1)  The Minister is to make a submission to the Regulator in relation to each of the first determinations, in relation to each of the regulated offer retailers, that the Regulator must make under section 40AA(1) of the Act.

(2)  The submission –

(a) is to take into account the principles that the Regulator must take into account under section 40AB of the Act in making a determination under section 40AA of the Act; and

(b) is to specify the interim pricing period; and

(c) is to specify the structure and methodology to be applied in the determination; and

(d) is to specify that the Regulator is only to approve under section 41 of the Act draft standing offer prices to be fixed by a regulated offer retailer under section 40 of the Act in accordance with the determination, if the prices are in accordance with a pricing structure specified in the determination; and

(e) is to specify the pricing structure that is to be included, for the purposes of paragraph (d) , in the determination; and

(f) may specify the cost to serve for the purposes of section 40AB of the Act; and

(g) is to specify such other matters as the Minister thinks ought to be considered by the Regulator in taking into account the principles specified in section 40AB of the Act, in making a determination under section 40AA(1) of the Act in accordance with regulation 8 .

7.   Interim investigation for purposes of making of 2014 Price Determination

(1)  After receiving the submission, referred to in regulation 6 , in relation to a regulated offer retailer, the Regulator must commence an interim investigation in respect of the first determination that the Regulator is required to make under section 40AA(1) of the Act in relation to the regulated offer retailer.

(2)  The Regulator is to conduct an interim 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.

(3)  In conducting an interim investigation, the Regulator is not bound by rules of evidence but may inform itself in any matter in any manner the Regulator considers appropriate.

(4)  If the Regulator decides to hold a hearing for the purpose of an interim investigation, regulation 50 applies as if the hearing were a pricing investigation.

(5)  Regulations 51 and 52 apply in relation to an interim investigation as if the Regulator were conducting a pricing investigation.

8.   Interim price-regulated retail service price determinations

(1)  The Regulator must, after conducting an interim investigation under regulation 7 in relation to a regulated offer retailer, make, under section 40AA(1) of the Act, before 31 July 2013, a determination (an interim price-regulated retail service price determination) in relation to the retailer.

(2)  Before making an interim price-regulated retail service price determination in relation to a regulated offer retailer, the Regulator, for the purposes of taking into account the principles specified in section 40AB of the Act, is to –

(a) take into account the submission made by the Minister under regulation 6 in relation to the retailer; and

(b) consider the matters referred to in regulation 13 .

(3)  An interim price-regulated retail service price determination in relation to a regulated offer retailer is to specify that the determination remains in effect for the interim pricing period, which is to be the interim pricing period specified in the Minister's submission under regulation 6(2) in relation to the retailer.

(4)  An interim price-regulated retail service price determination –

(a) takes effect on the date specified in the determination; and

(b) ceases to have effect on the last day of the interim pricing period specified in the determination.

(5)  Regulation 12(5) , (6) and (7) , regulation 13 , regulation 16 and Subdivision 2 of Division 4 apply in relation to an interim price-regulated retail service price determination as if it were a price-regulated retail service price determination.

Division 3 - Pricing investigations

9.   Pricing investigation to be conducted before expiry of certain determinations

(1)  At a reasonable time before the expiry of an interim price-regulated retail service price determination in relation to a regulated offer retailer, the Regulator is to conduct, in relation to the regulated offer retailer, a pricing investigation for the purposes of this regulation.

(2)  At a reasonable time before the expiry of an existing price-regulated retail service price determination in relation to a regulated offer retailer, the Regulator is to conduct, in relation to the regulated offer retailer, a pricing investigation for the purposes of this regulation.

(3)  The objective of a pricing investigation for the purposes of this regulation in relation to a regulated offer retailer is to provide information to the Regulator to enable the Regulator to make a determination under section 40AA(1) of the Act in relation to the regulated offer retailer.

10.   Notice of investigation to be given

(1)  Before conducting a pricing investigation for the purposes of regulation 9 , the Regulator –

(a) is to give to the Minister notice in writing of the investigation (anotice of pricing investigation); and

(b) is to give a copy of the notice to the regulated offer retailer to which the investigation is to relate; and

(c) is to publish a copy of the notice in the daily newspapers that the Regulator considers appropriate.

(2)  A notice of pricing investigation for the purposes of regulation 9 is to specify –

(a) the objective 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 date by which the Regulator is to complete the pricing investigation by providing a final report in relation to the investigation.

(3)  Before conducting a pricing investigation for the purposes of regulation 9 , the Regulator is to ensure that a copy of the notice of pricing investigation in relation to the investigation 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.

(4)  The Regulator may amend a notice of pricing investigation by notice in writing, setting out the amendment, given to the Minister and the regulated offer retailer to which the pricing investigation relates.

(5)  The Regulator may not amend under subregulation (4) the objective specified, in accordance with subregulation (2)(a) , in a notice of pricing investigation.

(6)  If the Regulator amends under subregulation (4) a notice of pricing investigation, the Regulator is to –

(a) give notice of the amendment in the daily 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.

11.   Contents of final report

The final report in relation to a pricing investigation for the purposes of regulation 9 is to set out –

(a) a summary of the information obtained by the Regulator during the investigation; and

(b) a statement as to the determination that the Regulator intends to make under section 40AA(1) of the Act.

Division 4 - Price-regulated retail service price determinations

Subdivision 1 - Making of price-regulated retail service price determinations

12.   Price-regulated retail services price determinations

(1)  After completing the final report in relation to a pricing investigation for the purposes of regulation 9 , the Regulator is to make a determination under section 40AA(1) of the Act (a price-regulated retail service price determination) in relation to the regulated offer retailer to which the investigation relates.

(2)  A price-regulated retail service price determination 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 services to small customers under standard retail contracts;

(f) by reference to a maximum revenue;

(g) any other terms the Regulator considers appropriate.

(3)  A price-regulated retail service price determination is to specify the date on which the determination takes effect and the date on which the determination expires.

(4)  A date specified in a price-regulated retail service price determination as the date on which the determination is to take effect may not be a date that occurs before the determination is made.

(5)  A price-regulated retail 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, a regulated offer retailer under the determination as a result of a tax event or a material change in circumstances in relation to the provision to small customers of services under standard retail contracts; and

(b) is to specify –

(i) the method of calculating that adjustment; or

(ii) the principles to be applied in making the adjustment to the prices or to the price control mechanisms or in calculating the adjustment, and the general manner in which those principles are to be applied.

(6)  In specifying in a price-regulated retail service price determination –

(a) the method of calculating an adjustment referred to in subregulation (5) ; or

(b) the principles to be applied in making the adjustment to the prices or to the price control mechanisms or in calculating the adjustment, and the general manner in which those principles are to be applied –

the Regulator is to ensure that the adjustment reflects the full financial effect to the regulated offer retailer to which the determination relates of the tax event or material change in circumstances.

(7)  A price-regulated retail service price determination may have a differential application that varies according to factors stated in the determination.

13.   Matters to be considered

In making a price-regulated retail service price determination in relation to a regulated offer retailer, the Regulator is to consider the following matters:

(a) any interstate or international benchmarks for prices, costs, revenues and return on assets in bodies providing a service similar to the services, under a standard retail contract with a small customer, to which the determination relates;

(b) the effects of inflation;

(c) the impact on pricing policies of any borrowing, capital, dividend, and taxation, obligations of the regulated offer retailer, including obligations to renew or increase assets;

(d) the quality of the provision of services to small customers under standard retail contracts of the regulated offer retailer;

(e) any licence, obligation or retailer authorisation 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 regulated offer retailer;

(f) the Code;

(g) the National Electricity Rules;

(h) any costs (including capital expenditure) incurred by the regulated offer retailer at the direction of the Regulator;

(i) the public interest;

(j) any other matter the Regulator considers relevant.

14.   Notice to be given of making of price-regulated retail service price determination

(1)  As soon as practicable after making a price-regulated retail service price determination, the Regulator must –

(a) give a copy of the determination to –

(i) the Minister; and

(ii) the regulated offer retailer to which the determination relates; and

(b) publish, in the daily newspapers that the Regulator considers appropriate, notice that the determination has been made and 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 price-regulated retail service price determination, the Regulator is to ensure that –

(a) a copy of the determination may be obtained –

(i) 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) 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 the determination 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 price-regulated retail service price determination, but only if the amount is not more than the cost to the Regulator of making the copy.

15.   When price-regulated retail service price determination takes effect and ends

(1)  A price-regulated retail service price determination (the new determination) that relates to a regulated offer retailer takes effect –

(a) if at the time the new determination is made there is in force no other such determination, or no interim price-regulated retail service price determination, in relation to the regulated offer retailer – on the date specified in the new determination as the date 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, or an interim price-regulated retail service price determination, in relation to the regulated offer retailer, that has not yet reached its expiry date – on the expiry or revocation of the other determination or interim price-regulated retail service price determination; or

(c) if at the time the new determination is made there is in force, by reason of subregulation (3) , another such determination in relation to the regulated offer retailer – on the date specified in the new determination as the date on which the determination is to take effect.

(2)  A price-regulated retail service price determination that relates to a regulated offer retailer ceases to have effect –

(a) if the determination is revoked – on the date that revocation takes effect; or

(b) if the determination, by reason of subregulation (3) , is continued after the date it would normally expire – on the date on which another price-regulated retail service price determination in relation to the retailer takes effect; or

(c) in any other case – on the date specified in the determination as the date on which it expires.

(3)  If, on the date on which a price-regulated retail service price determination is due to expire, a pricing investigation is being conducted for the purposes of regulation 9 , that determination continues to have effect.

16.   Adjustment to prices in determination

(1)  In this regulation –

adjustment means an adjustment to the prices that a regulated offer retailer may charge, or to the price control mechanisms imposed on a regulated offer retailer, or both, under a price-regulated retail service price determination –

(a) as a result of the occurrence of a tax event; or

(b) as a result of a material change in costs to the regulated offer retailer, to which the determination relates, in relation to the provision to small customers of services under standard retail contracts.

(2)  The Regulator, by notice to a regulated offer retailer, 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 a regulated offer retailer if, when considering whether to approve an adjustment, the Regulator determines that –

(a) a tax event; or

(b) a material change in costs to the retailer in relation to the provision to small customers of services under standard retail contracts –

has not occurred.

(5)  The Regulator is not to approve an adjustment unless the Regulator is satisfied that the adjustment has been calculated in accordance with –

(a) the method of calculating that adjustment; or

(b) the principles to be applied in making the adjustment to the prices or to the price control mechanisms or in calculating the adjustment, and the general manner in which those principles are to be applied –

specified in the price-regulated retail service price determination to which the adjustment relates.

(6)  On approving or refusing to approve an adjustment, the Regulator is to notify the regulated offer retailer to which the adjustment relates.

Subdivision 2 - Amendment or revocation of price determinations

17.   Amendment or revocation of price-regulated retail service price determinations

(1)  The Regulator may amend or revoke under section 40AA(3) of the Act a price-regulated retail service price determination if, in the opinion of the Regulator, the regulated offer retailer to which the determination relates is materially adversely affected as a result of the making, amendment or revocation of a transmission determination or a distribution determination.

(2)  The Regulator may amend or revoke a price-regulated retail service price determination under section 40AA(3) of the Act if the Regulator determines –

(a) that the determination was made on the basis of information, provided by the regulated offer retailer to which the determination relates, that was false or misleading in a material particular; or

(b) that there is a material error in the determination; or

(c) that –

(i) the regulated offer retailer to which the determination relates is materially adversely affected by the determination as a result of an event which is beyond the retailer's reasonable control and was not taken into account in the terms of the determination; and

(ii) the benefits of amending or revoking the determination would outweigh any detriment, to the regulated offer retailer to which the determination relates, or any customer of such a retailer, that might result from the amendment or revocation of the determination.

(3)  An amendment or revocation of a price-regulated retail service price determination takes effect on the date specified in the amendment or revocation.

(4)  Regulation 14 applies in relation to an amendment or revocation under section 40AA(3) of the Act of a price-regulated retail service price determination as if the amendment or revocation were a price-regulated retail service price determination.

18.   Process for amendment or revocation

(1)  Before amending or revoking under section 40AA(3) of the Act a price-regulated retail service price determination, the Regulator is to invite submissions in respect of whether the determination ought to be amended or revoked.

(2)  The invitation referred to in subregulation (1) is to –

(a) be in writing; and

(b) specify a reasonable period within which the submissions may be made.

(3)  The Regulator is to –

(a) give a copy of the invitation to –

(i) the Minister; and

(ii) the regulated offer retailer to which relates the price-regulated retail service price determination that the Regulator is considering amending or revoking; and

(b) publish a copy of the invitation in the daily newspapers that the Regulator considers appropriate.

(4)  The Regulator is only to amend or revoke under section 40AA(3) of the Act a price-regulated retail service price determination –

(a) after the expiry of the period within which submissions may, under the invitation referred to in subregulation (1) , be made in relation to the determination; and

(b) after considering any such submissions received.

(5)  Subject to these regulations, for the purpose of determining whether or not to amend or revoke a price-regulated retail service price determination under section 40AA(3) of the Act, the Regulator may do any or all of the following:

(a) consult with any person;

(b) hold seminars;

(c) hold hearings;

(d) do anything the Regulator considers necessary or convenient.

(6)  In determining whether or not to amend or revoke under section 40AA(3) of the Act a price-regulated retail service price determination, the Regulator is not bound by the rules of evidence but may inform itself in any matter in any manner the Regulator considers appropriate.

(7)  If the Regulator decides to hold a hearing for the purpose of determining whether or not to amend or revoke under section 40AA(3) of the Act a price-regulated retail service price determination, regulation 50 applies as if the hearing were a hearing in respect of a pricing investigation.

(8)  Regulations 51 and 52 apply in relation to the determining by the Regulator of whether or not to amend or revoke under section 40AA(3) of the Act a price-regulated retail service price determination, as if the Regulator were conducting a pricing investigation.

19.   Cost of investigations and determinations

(1)  In this regulation, each of the following is a relevant activity of the Regulator in respect of a regulated offer retailer:

(a) the conduct and reporting of a pricing investigation in relation to the regulated offer retailer, and the giving, or publication, under these regulations of any notice required under these regulations to be given in relation to such an investigation or report;

(b) the making, amending or revocation under section 40AA of the Act of an interim price-regulated retail service price determination, or a price-regulated retail service price determination, that relates to the regulated offer retailer and the publishing under these regulations of a copy of the determination, amendment or revocation.

(2)  The Regulator may send a notice of expenses to a regulated offer retailer in relation to a relevant activity of the Regulator.

(3)  A notice of expenses to a regulated offer retailer is a notice specifying –

(a) the amount of the expenses determined by the Regulator to be payable by the regulated offer retailer 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 the regulated offer retailer; and

(b) the date on or before which the expenses are to be paid by the regulated offer retailer.

(4)  A date specified in a notice to a regulated offer retailer in accordance with subregulation (3)(b) is not to be earlier than 30 days after the notice is sent to the regulated offer retailer.

(5)  A regulated offer retailer to which a notice of expenses 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.

(6)  The Regulator may recover in a court of competent jurisdiction, as a debt due and owing, an amount a regulated offer retailer is liable to pay under subregulation (5) .

PART 3 - Wholesale Electricity Pricing and Contracts

Division 1 - Initial approvals

20.   Minister may make initial approvals for purposes of this Part

(1)  The Minister may make the first approval under section 43G(1) of the Act as if the Minister were the Regulator.

(2)  The period for which an approval of the Minister in accordance with subregulation (1) is to remain in force is the period specified in the approval.

(3)  Division 2 does not apply in relation to the making by the Minister, in accordance with subregulation (1) , of an approval under section 43G(1) of the Act.

Division 2 - Pricing investigations and approvals under section 43G of Act

21.   Pricing investigations as to whether to make or revoke approval under section 43G of Act

(1)  The Regulator must conduct a pricing investigation for the purposes of this regulation –

(a) before making or revoking an approval under section 43G of the Act; or

(b) at a reasonable time before the expiry of an approval made by the Minister in accordance with regulation 20(1) .

(2)  The objective of a pricing investigation under this regulation is to –

(a) provide information to the Regulator to enable the Regulator to determine whether (and on what terms) to make an approval under section 43G of the Act; or

(b) provide information to the Regulator to enable the Regulator to determine whether to revoke an approval under section 43G of the Act –

or both.

22.   Notice of investigation to be given

(1)  Before conducting a pricing investigation for the purposes of regulation 21 , the Regulator –

(a) is to give to the Minister notice in writing of the investigation (anotice of pricing investigation); and

(b) is to give a copy of the notice to the Hydro-Electric Corporation; and

(c) is to give a copy of the notice to the authorised retailers, if any, that the Regulator considers ought to be given a copy of the notice; and

(d) is to publish a copy of the notice in the daily newspapers that the Regulator considers appropriate.

(2)  A notice of pricing investigation for the purposes of regulation 21 is to specify –

(a) the objective 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 date by which the Regulator is to complete the pricing investigation by providing a final report in relation to the investigation.

(3)  Before conducting a pricing investigation for the purposes of regulation 21 , the Regulator is to ensure that a copy of the notice of pricing investigation in relation to the investigation 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.

(4)  The Regulator may amend a notice of pricing investigation by notice in writing, setting out the amendment, given to the Minister, the Hydro-Electric Corporation and such authorised retailers, if any, as the Regulator considers ought to be given a copy of the notice.

(5)  The Regulator may not amend under subregulation (4) the objective specified, in accordance with subregulation (2)(a) , in a notice of pricing investigation.

(6)  If the Regulator amends under subregulation (4) a notice of pricing investigation, the Regulator is to –

(a) give notice of the amendment in the daily 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.

23.   Final report

The final report in relation to a pricing investigation for the purposes of regulation 21 is to set out –

(a) a summary of the information obtained by the Regulator during the investigation; and

(b) the decision of the Regulator as to whether (and on what terms) to make or revoke an approval under section 43G , or both.

24.   Making or revocation of approvals under section 43G of Act

(1)  After completing the final report in relation to a pricing investigation for the purposes of regulation 21 , the Regulator is to, if the Regulator thinks fit –

(a) make an approval under section 43G of the Act; or

(b) revoke an approval under section 43G(3) of the Act; or

(c) take both such actions.

(2)  An approval under section 43G of the Act remains in force until it is revoked or ceases to be in force under regulation 20 .

25.   Cost of investigations and approvals

(1)  In this regulation, each of the following is a relevant activity of the Regulator in respect of the Hydro-Electric Corporation:

(a) the conduct and reporting of a pricing investigation for the purposes of regulation 21 and the giving, or publication, of any notice required under these regulations to be given in relation to such an investigation or report;

(b) the making or revocation of an approval under section 43G pursuant to the final report and the publishing of a copy of the approval or revocation.

(2)  The Regulator may send a notice of expenses to the Hydro-Electric Corporation in relation to a relevant activity of the Regulator.

(3)  A notice of expenses to the Hydro-Electric Corporation is a notice specifying –

(a) the amount of the expenses determined by the Regulator to be payable by the Hydro-Electric Corporation in respect of all or part of the expenses, reasonably incurred by the Regulator, arising from a relevant activity of the Regulator; and

(b) the date on or before which the expenses are to be paid by the Hydro-Electric Corporation.

(4)  A date specified in a notice to the Hydro-Electric Corporation in accordance with subregulation (3)(b) is not to be earlier than 30 days after the notice is sent to the Corporation.

(5)  If a notice of expenses is sent to the Hydro-Electric Corporation, the Hydro-Electric Corporation 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.

(6)  The Regulator may recover in a court of competent jurisdiction, as a debt due and owing, an amount the Hydro-Electric Corporation is liable to pay under subregulation (5) .

Division 3 - Compliance investigations and approvals under section 43M of Act

26.   Compliance investigations

(1)  An authorised retailer that retails electricity in Tasmania may request the Regulator to consider making an approval under section 43M(1) of the Act.

(2)  The Regulator must conduct a compliance investigation for the purposes of this regulation –

(a) if the Regulator decides, after considering a request under subregulation (1) from an authorised retailer, to carry out a compliance investigation in relation to the request; and

(b) in any case, before making an approval under section 43M(1) of the Act.

(3)  If, the Regulator decides, after considering a request under subregulation (1) from an authorised retailer to consider making an approval under section 43M(1) of the Act, not to carry out a compliance investigation in relation to the request, the Regulator must –

(a) give a notice in writing to the authorised retailer providing reasons as to why the Regulator has not carried out the investigation; and

(b) ensure that a copy of the notice 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.

(4)  The objective of a compliance investigation for the purposes of this regulation is to enable the Regulator to determine –

(a) whether there has been a significant, deliberate or repeated failure by the Hydro-Electric Corporation to correctly apply the approved methodology in the calculation of prices to be applied in contracts to which section 43M(1) of the Act applies; and

(b) if there has been such a failure, whether the Regulator ought to make an approval under section 43M(1) of the Act.

27.   Notice of investigation to be given

(1)  Before conducting a compliance investigation for the purposes of regulation 26 , the Regulator –

(a) is to give to the Minister notice in writing of the investigation (anotice of compliance investigation); and

(b) is to give a copy of the notice to the Hydro-Electric Corporation; and

(c) is to give a copy of the notice to the authorised retailer, if any, to whose request under regulation 26(1) the investigation relates; and

(d) is to give a copy of the notice to the authorised retailers, if any, that the Regulator considers ought to be given a copy of the notice; and

(e) is to publish a copy of the notice in the daily newspapers that the Regulator considers appropriate.

(2)  A notice of compliance investigation for the purposes of regulation 26 is to specify –

(a) the objective 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 date by which the Regulator is to complete the pricing investigation by providing a final report in relation to the investigation.

(3)  Before conducting a compliance investigation for the purposes of regulation 26 , the Regulator is to ensure that a copy of the notice of compliance investigation in relation to the investigation 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 30 days.

(4)  The Regulator may amend a notice of compliance investigation by notice in writing, setting out the amendment, given to the Minister, the Hydro-Electric Corporation and such authorised retailers, if any, as the Regulator considers ought to be given a copy of the notice.

(5)  The Regulator may not amend under subregulation (4) the objective specified, in accordance with subregulation (2)(a) , in a notice of compliance investigation.

(6)  If the Regulator amends under subregulation (4) a notice of compliance investigation, the Regulator is to –

(a) give notice of the amendment in the daily 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.

28.   Final report

The final report in relation to a compliance investigation for the purposes of regulation 26 is to set out –

(a) a summary of the information obtained by the Regulator during the investigation; and

(b) whether the Regulator is of the opinion that there has been a significant, deliberate or repeated failure by the Hydro-Electric Corporation to correctly apply the approved methodology in the calculation of prices to be applied in contracts to which section 43M(1) of the Act applies; and

(c) if the Regulator is of the opinion that there has been a significant, deliberate or repeated failure by the Hydro-Electric Corporation to correctly apply the approved methodology in the calculation of prices to be applied in contracts to which section 43M of the Act applies – the decision of the Regulator as to whether (and on what terms) to make an approval under section 43M(1) of the Act.

29.   Making of approvals under section 43M of Act

After completing the final report in relation to a pricing investigation for the purposes of regulation 26 , the Regulator is to make, if the Regulator thinks fit, an approval under section 43M(1) of the Act in respect of contracts to which section 43M(1) of the Act applies.

30.   Cost of investigations and approvals

(1)  In this regulation, each of the following is a relevant activity of the Regulator in respect of the Hydro-Electric Corporation or an authorised retailer:

(a) the conduct and reporting of a compliance investigation for the purposes of regulation 26 and the giving, or publication, of any notice required under these regulations to be given in relation to such an investigation or report;

(b) the making or revocation of an approval under section 43M(1) of the Act and the publishing of a copy of the approval or revocation.

(2)  The Regulator may send –

(a) a notice of expenses to the Hydro-Electric Corporation in relation to a relevant activity of the Regulator; and

(b) a notice of expenses to an authorised retailer, but only if subregulation (4) applies in relation to the authorised retailer.

(3)  A notice of expenses to the Hydro-Electric Corporation, or an authorised retailer, is a notice specifying –

(a) the amount of the expenses determined by the Regulator to be payable by the Hydro-Electric Corporation, or the authorised retailer, in respect of all or part of the expenses, reasonably incurred by the Regulator, arising from a relevant activity of the Regulator; and

(b) the date on or before which the expenses are to be paid by the Hydro-Electric Corporation or the authorised retailer.

(4)  If the Regulator has determined under these regulations that an approval to which a compliance investigation, conducted pursuant to a request under regulation 26(1) from an authorised retailer, relates, is not required to be made, the costs of the conduct and reporting of the compliance investigation and the giving, or publication, of any notice required under these regulations to be given in relation to such an investigation or report –

(a) may be specified in a notice of expenses issued to the authorised retailer; and

(b) may not be included in a notice of expenses issued to the Hydro-Electric Corporation.

(5)  A date specified in a notice to the Hydro-Electric Corporation or an authorised retailer in accordance with subregulation (3)(b) is not to be earlier than 30 days after the notice is sent to the Hydro-Electric Corporation or the retailer.

(6)  If a notice of expenses is sent to the Hydro-Electric Corporation or an authorised retailer, the Hydro-Electric Corporation or the authorised retailer, respectively, 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 the Hydro-Electric Corporation or an authorised retailer is liable to pay under subregulation (6) .

PART 4 - Declared Electrical Services

Division 1 - Declaration of declared electrical services

31.   Notice to be given of intention to make declaration of declared electrical services

Before making under section 40AD(1) of the Act 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 entity or authorised retailer that the Regulator intends to specify in the declaration; and

(b) publish that notice in the daily newspapers that the Regulator considers appropriate; and

(c) allow the electricity entity or authorised retailer, 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.

32.   When declaration takes effect

(1)  A declaration of a declared electrical service under section 40AD(1) of the Act takes effect on and from the date specified in the declaration and remains in effect until it is revoked.

(2)  A date specified in a declaration under section 40AD(1) of the Act may not be a date before the declaration is made.

33.   Amendment or revocation of declaration

(1)  Regulations 31 and 32 apply in respect of an amendment or revocation under section 40AD(4) of the Act of a declaration of a declared electrical service as if the revocation or amendment were a declaration under section 40AD(1) of the Act.

(2)  If a declaration of a declared electrical service is amended, the amendment does not invalidate a pricing investigation, in respect of the goods or service to which the declaration relates, that is being conducted at the time of the amendment.

Division 2 - Pricing investigations in respect of declared electrical services

34.   Pricing investigation for new declared electrical services to be conducted

(1)  If the Regulator makes under section 40AD(1) of the Act a declaration of a declared electrical service, the Regulator is to conduct a pricing investigation in relation to the declaration for the purposes of this regulation.

(2)  The objective of a pricing investigation for the purposes of this regulation is to investigate the pricing policies of the electricity entity or authorised retailer that provides the declared electrical service to which the investigation relates.

35.   Regulator to consider, before expiry of existing determination, whether to revoke declaration

(1)  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 to which the determination relates should be retained or revoked.

(2)  The invitation referred to in subregulation (1) is to –

(a) be in writing; and

(b) specify a reasonable period within which the submissions may be made.

(3)  The Regulator is to –

(a) give a copy of the invitation to –

(i) the Minister; and

(ii) the electricity entity or authorised retailer providing the declared electrical service to which the determination relates; and

(b) publish a copy of the invitation in the daily newspapers that the Regulator considers appropriate.

(4)  After the expiry of the period within which submissions may, under the invitation referred to in subregulation (1) , 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 –

(a) retain the declaration; or

(b) revoke the declaration under section 40AD(4) of the Act.

(5)  If the Regulator determines under subregulation (4) to revoke under section 40AD(4) of the Act the declaration of a declared electrical service, the Regulator is to so revoke the declaration.

(6)  Regulation 31 does not apply to a revocation of a declaration of a declared electrical service in accordance with subregulation (5) .

36.   Pricing investigation to be conducted

(1)  If the Regulator determines under regulation 35(4) to retain the declaration of a declared electrical service, the Regulator is to conduct, within a reasonable time, a pricing investigation in respect of the declared electrical service.

(2)  The objective of a pricing investigation in accordance with this regulation in respect of a declared electrical service is to –

(a) investigate the pricing policies of the electricity entity or authorised retailer providing the declared electrical service; and

(b) consider whether to determine under section 40AD(5) of the Act maximum prices in respect of those services.

37.   Notice of investigation to be given

(1)  Before conducting a pricing investigation for the purposes of regulation 34 or 36 , the Regulator –

(a) is to give to the Minister notice in writing of the investigation (anotice of pricing investigation); and

(b) is to give a copy of the notice to the electricity entity, or authorised retailer, 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 newspapers that the Regulator considers appropriate.

(2)  A notice of pricing investigation for the purposes of regulation 34 or 36 is to specify –

(a) the objective 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 date by which the Regulator is to complete the pricing investigation by providing a final report in relation to the investigation.

(3)  Before conducting a pricing investigation, the Regulator is to ensure that a copy of the notice of pricing investigation in relation to the investigation 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.

(4)  The Regulator may amend a notice of pricing investigation by notice in writing, setting out the amendment, given to the Minister and the electricity entity, or authorised retailer, providing the declared electrical service to which the investigation relates.

(5)  The Regulator may not amend under subregulation (4) the objective specified, in accordance with subregulation (2)(a) , in a notice of pricing investigation.

(6)  If the Regulator amends under subregulation (4) a notice of pricing investigation, the Regulator is to –

(a) give notice of the amendment in the daily 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.

38.   Contents of final report

The final report in relation to a pricing investigation in respect of a declared electrical service is to set out –

(a) a summary of the information obtained by the Regulator during the investigation; and

(b) whether the Regulator is of the opinion that the Regulator ought to determine under section 40AD(5) of the Act maximum prices in respect of the declared electrical service; and

(c) if the report concludes that the Regulator ought to determine under section 40AD(5) of the Act maximum prices in respect of the declared electrical service – the determination that the Regulator intends to make.

39.   Cost 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 entity or authorised retailer:

(a) the making, amendment or revocation of a declaration under section 40AD(1) of the Act of a declared electrical service that is provided by the electricity entity or authorised retailer;

(b) the conduct and reporting of a pricing investigation in relation to a declared electrical service provided by the electricity entity or authorised retailer, 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, amending or revocation under section 40AD of the Act of a declared electrical service price determination in relation to a declared electrical service that is provided by the electricity entity or authorised retailer and the publishing under these regulations of a copy of the determination, amendment or revocation.

(2)  The Regulator may send a notice of expenses to an electricity entity or authorised retailer in relation to a relevant activity of the Regulator.

(3)  A notice of expenses to an electricity entity or authorised retailer 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 entity or authorised retailer 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 entity or authorised retailer; and

(b) the date on or before which the expenses are to be paid by the electricity entity or authorised retailer.

(4)  A date specified in a notice to an electricity entity or authorised retailer in accordance with subregulation (3)(b) is not to be earlier than 30 days after the notice is sent to the electricity entity or authorised retailer.

(5)  An electricity entity or authorised retailer 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.

(6)  The Regulator may recover in a court of competent jurisdiction, as a debt due and owing, an amount an electricity entity or authorised retailer is liable to pay under subregulation (5) .

Division 3 - Price determinations in respect of declared electrical services

Subdivision 1 - Making of price determinations

40.   Declared electrical service price determinations

(1)  After completing the final report in respect of a pricing investigation in relation to a declared electrical service, the Regulator is to make under section 40AD(5) of the Act a determination (a declared electrical service price determination) in relation to the declared electrical service.

(2)  A declared electrical service price determination 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 entity or authorised retailer; and

(b) a customer at premises in the Bass Strait Islands.

(4)  A declared electrical service price determination is to specify the date on which the determination is to take effect and the date on which it expires.

(5)  A date specified in a declared electrical service price determination as the date on which the determination is to take effect may not be a date that occurs before the determination is made.

(6)  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 entity or authorised retailer under the determination as a result of a tax event or a material change in circumstances in relation to the provision of the declared electrical service; and

(b) is to specify –

(i) the method of calculating that adjustment; or

(ii) the principles to be applied in making the adjustment to the prices or to the price control mechanisms or in calculating the adjustment, and the general manner in which those principles are to be applied.

(7)  A declared electrical service price determination may establish a performance incentive scheme for an electricity entity or authorised retailer to which the determination relates.

(8)  If a declared electrical service price determination establishes a performance incentive scheme for an electricity entity or authorised retailer, 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 entity or authorised retailer under the determination as a result of that scheme; or

(b) the principles to be applied in making the adjustment to the prices or to the price control mechanisms or in calculating the adjustment, and the general manner in which those principles are to be applied.

(9)  In specifying in a declared electrical service price determination –

(a) the method of calculating an adjustment referred to in subregulation (6) or (8) ; or

(b) the principles to be applied in making the adjustment to the prices or to the price control mechanisms or in calculating the adjustment, and the general manner in which those principles are to be applied –

the Regulator is to ensure that the adjustment reflects the full financial effect to the electricity entity or authorised retailer of the tax event, material change in circumstances or scheme.

(10)  A declared electrical service price determination may have a differential application that varies according to factors stated in the determination.

41.   Matters to be considered

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 entity or authorised retailer 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 entity or authorised retailer;

(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 entity or authorised retailer to be financially viable;

(i) the impact on pricing policies of any borrowing, capital, dividend and taxation or tax-equivalent obligations of the electricity entity or authorised retailer, 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 retailer authorisation, 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 entity or authorised retailer;

(l) the Code;

(m) the National Electricity Rules;

(n) any costs (including capital expenditure) incurred by the electricity entity or authorised retailer at the direction of the Regulator;

(o) the public interest;

(p) any other matter the Regulator considers relevant.

42.   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) give a copy of the determination to –

(i) the Minister; and

(ii) the electricity entity or authorised retailer to which the determination relates; and

(b) publish, in the daily newspapers that the Regulator considers appropriate, notice that the determination has been made and 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 may be obtained –

(i) 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) 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.

43.   When declared electrical service price determination takes effect and ends

(1)  A declared electrical service price determination (the new determination) in relation 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 date specified in the new determination as the date 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 date specified in the new determination as the date 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 date on which the last of those revocations takes effect; or

(b) if the determination is revoked – on the date that revocation takes effect; or

(c) if the determination, by reason of subregulation (4) , is continued after the date it would normally expire – on the date 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 date specified in the determination as the date on which it expires.

(3)  If –

(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 –

the declared electrical service price determination ceases to have effect in relation to the goods, or service, in respect of which that declaration of a declared electrical service was made.

(4)  If, on the date on which a declared electrical service price determination is due to expire, a 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.

44.   Adjustment to prices in determination

(1)  In this regulation –

adjustment means an adjustment to the prices that an electricity entity or authorised retailer may charge, or to the price control mechanisms imposed on the electricity entity or authorised retailer, (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 a material change in costs to the electricity entity or authorised retailer of providing the declared electrical service to which the determination relates; or

(c) under a performance incentive scheme.

(2)  The Regulator, by notice to an electricity entity or authorised retailer, 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 entity or authorised retailer if, when considering whether to approve an adjustment, the Regulator determines that –

(a) a tax event, or a material change in costs to the electricity entity or the authorised retailer of providing the declared electrical service to which the determination relates, 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 –

(a) the method of calculating that adjustment; or

(b) the principles to be applied in making the adjustment to the prices or to the price control mechanisms or in calculating the adjustment, and the general manner in which those principles are to be applied –

specified in the declared electrical service price determination to which the adjustment relates.

(6)  On approving or refusing to approve an adjustment, the Regulator is to notify the electricity entity or authorised retailer to which the adjustment relates.

Subdivision 2 - Amendment or revocation of price determination

45.   Amendment or revocation of declared electrical service price determination

(1)  The Regulator may amend or revoke under section 40AD(7) of the Act a determination made under section 40AD(5) of the Act if, in the opinion of the Regulator, an electricity entity or authorised retailer to which the determination relates is materially adversely affected as a result of the making of an amendment or revocation of a transmission determination or a distribution determination.

(2)  The Regulator may amend or revoke under section 40AD(7) of the Act a determination made under section 40AD(5) of the Act if the Regulator is of the opinion –

(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 –

(i) the electricity entity or authorised retailer to which the determination relates is materially adversely affected by the determination as a result of an event which is beyond the entity's or retailer's reasonable control and was not taken into account in the terms of the determination; and

(ii) the benefits of amending or revoking the determination would outweigh any detriment to the electricity supply industry that might result from the amendment or revocation of the determination.

(3)  Subregulations (1) and (2) do not limit the circumstances in which the Regulator may amend or revoke under section 40AD(7) of the Act a determination made under section 40AD(5) of the Act.

(4)  An amendment or revocation under section 40AD(7) of the Act of a declared electrical service price determination takes effect on the date specified in the amendment or revocation.

(5)  Regulation 42 applies in relation to an amendment or revocation under section 40AD(7) of the Act of a declared electrical service price determination as if the amendment or revocation were a declared electrical service price determination.

46.   Process for making of amendment or revocation

(1)  Before amending or revoking under section 40AD(7) of the Act a declared electrical service price determination, the Regulator is to invite submissions in respect of whether the determination ought to be amended or revoked.

(2)  The invitation referred to in subregulation (1) is to –

(a) be in writing; and

(b) specify a reasonable period within which the submissions may be made.

(3)  The Regulator is to –

(a) give a copy of the invitation to –

(i) the Minister; and

(ii) the electricity entity or authorised retailer 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 newspapers that the Regulator considers appropriate.

(4)  The Regulator is only to amend or revoke under section 40AD(7) of the Act a declared electrical service price determination –

(a) after the expiry of the period within which submissions may, under the invitation referred to in subregulation (1) , be made in relation to the determination; and

(b) after considering any such submissions received.

(5)  Subject to these regulations, for the purpose of determining whether or not to amend or revoke a declared electrical service price determination, the Regulator may do any or all of the following:

(a) consult with any person;

(b) hold seminars;

(c) hold hearings;

(d) do anything the Regulator considers necessary or convenient.

(6)  In determining whether or not to amend or revoke under section 40AD(7) of the Act a declared electrical service price determination, the Regulator is not bound by the rules of evidence but may inform itself in any matter in any manner the Regulator considers appropriate.

(7)  If the Regulator decides to hold a hearing for the purpose of determining whether or not to amend or revoke under section 40AD(7) of the Act a declared electrical service price determination, regulation 50 applies as if the hearing were a hearing in respect of a pricing investigation.

(8)  Regulations 51 and 52 apply in relation to the determining by the Regulator of whether or not to amend or revoke under section 40AD(7) of the Act a declared electrical service price determination as if the Regulator were conducting a pricing investigation.

47.   Saving of existing price determinations

(1)  In this section –

commencement day means the day on which these regulations commence;

former retail declaration means the amendment, dated 24 March 2010, of the declaration of a declared electrical service, within the meaning of the 2003 rescinded regulations, relating to retail services for non-contestable customers on mainland Tasmania provided by Aurora Energy Pty Ltd.

(2)  Despite the rescission of the rescinded regulations by these regulations, any declaration of a declared electrical service, within the meaning of the rescinded regulations, (other than the former retail declaration) that was in force immediately before the commencement day, continues in force on and after that day as if it were a declaration made under section 40AD(1) of the Act in accordance with these regulations and may, accordingly, be amended or revoked under section 40AD(4) of the Act in accordance with these regulations.

(3)  Despite the rescission of the rescinded regulations by these regulations, a declared electrical service price determination, within the meaning of the rescinded regulations, (other than the 2013 Price Determination) that was in force immediately before the commencement day, is to be taken, on and after that day, to be a determination made under section 40AD(5) of the Act in accordance with these regulations and may, accordingly, be amended or revoked under section 40AD(7) of the Act in accordance with these regulations.

PART 5 - Investigations

48.   Application of Part

This Part applies if an investigation is, in accordance with these regulations, to be conducted.

49.   Conduct of pricing investigations

(1)  For the purposes of conducting an investigation, but subject to these regulations, the Regulator may do anything the Regulator considers necessary or convenient.

(2)  In conducting an investigation, the Regulator is only to receive submissions if they are in the form specified in the notice of pricing investigation, or notice of compliance investigation, in relation to the investigation.

(3)  Subject to these regulations, the Regulator may conduct an 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 an investigation, the Regulator is not bound by rules of evidence but may inform itself in any matter in any manner the Regulator considers appropriate.

50.   Hearings

(1)  If, in conducting an investigation, the Regulator decides to hold a hearing, the Regulator is to give reasonable notice of the hearing in the daily 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.

51.   Person may be required to give evidence or provide document

(1)  For the purposes of an investigation, the Regulator, by written notice given 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.

52.   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 51(1)(b) or (c) ; and

(b) may retain that document for so long as is necessary for the purposes of the 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 51(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 51(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.

53.   Draft report

(1)  At an appropriate time during an 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) give a copy of the draft report, together with the relevant notice, to the Minister; and

(b) give a copy of the draft report to –

(i) if the investigation is a pricing investigation for the purposes of regulation 9 – the regulated offer retailer to which the pricing investigation relates; or

(ii) if the investigation is a pricing investigation for the purposes of regulation 21 – the Hydro-Electric Corporation and each authorised retailer; or

(iii) if the investigation is a compliance investigation for the purposes of regulation 26 – the Hydro-Electric Corporation and each authorised retailer that retails electricity in the State; or

(iv) if the investigation is a pricing investigation for the purposes of regulation 34 or 36 – the electricity entity or authorised retailer providing the declared electrical service to which the investigation relates; and

(c) 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

(d) make a copy of the draft report together with the relevant notice 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.

(3)  In this regulation, 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.

54.   Final report

(1)  After considering any submission made under regulation 53(6) in relation to an investigation, the Regulator is to –

(a) prepare a final report in respect of the investigation; and

(b) give a copy of the final report to the Minister; and

(c) give a copy of the final report to –

(i) if the investigation is a pricing investigation for the purposes of regulation 9 – the regulated offer retailer to which the pricing investigation relates; or

(ii) if the investigation is a pricing investigation for the purposes of regulation 21 – the Hydro-Electric Corporation and each authorised retailer; or

(iii) if the investigation is a compliance investigation for the purposes of regulation 26 – the Hydro-Electric Corporation and each authorised retailer that retails electricity in the State; or

(iv) if the investigation is a pricing investigation for the purposes of regulation 34 or 36 – the electricity entity or authorised retailer providing the declared electrical service to which the investigation relates; and

(d) publish, in the daily 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 in relation to an investigation that is a pricing investigation for the purposes of regulation 9 is to –

(a) be given under subregulation (1) before the date specified, in accordance with regulation 10(2)(d) , in the notice of pricing investigation in relation to the pricing investigation; and

(b) be consistent with the Act and any regulations under the Act; and

(c) report in relation to the matters specified in regulation 11 in respect of such investigations.

(3)  The final report in relation to an investigation that is a pricing investigation for the purposes of regulation 21 is to –

(a) be given under subregulation (1) before the date specified, in accordance with regulation 22(2)(d) , in the notice of pricing investigation in relation to the pricing investigation; and

(b) be consistent with the Act and any regulations under the Act; and

(c) report in relation to the matters specified in regulation 23 .

(4)  The final report in relation to an investigation that is a compliance investigation for the purposes of regulation 26 is to –

(a) be given under subregulation (1) before the date specified, in accordance with regulation 27(2)(d) , in the notice of compliance investigation in relation to the investigation; and

(b) be consistent with the Act and any regulations under the Act; and

(c) report in relation to the matters specified in regulation 28 .

(5)  The final report in relation to an investigation that is a pricing investigation for the purposes of regulation 34 or 36 is to –

(a) be given under subregulation (1) before the date specified, in accordance with regulation 37(2)(d) , in the notice of pricing investigation in relation to the pricing investigation; and

(b) be consistent with the Act and any regulations under the Act; and

(c) report in relation to the matters specified in regulation 38 .

(6)  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.

(7)  The relevant fee in respect of a copy is a fee determined by the Regulator under subregulation (8) in respect of such a copy.

(8)  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.

PART 6 - Miscellaneous

55.   Offences

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 pricing investigation under these regulations.

Penalty:  Fine not exceeding 100 penalty units.

56.   Determinations as to whether or not to conduct price investigation not reviewable

For the purposes of the definition of reviewable decision in section 3 of the Act, a decision to conduct, or to refuse to conduct, a pricing investigation is declared not to be reviewable.

57.   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.

58.   Notices, &c., may be given to authorised retailers

The Regulator may, if the Regulator thinks fit, provide to an authorised retailer a copy of any notice, invitation or other instrument that the Regulator is required under these regulations to give to another authorised retailer.

59.   Service of documents

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.

60.   Legislation rescinded

The legislation specified in Schedule 1 is rescinded.

SCHEDULE 1 - Legislation rescinded

Regulation 60

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

Notified in the Gazette on 29 May 2013

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