Part 1 Preliminary
1 Name of Regulation
This Regulation is the Electricity Supply (General) Regulation 2001.
2 Commencement
This Regulation commences on 1 July 2001.
3 Definitions
(1) In this Regulation:accreditation scheme means:(a) a scheme prepared by a service provider in accordance with Division 3 of Part 9, or(b) a Ministerially recognised accreditation scheme.accrediting agency means:(a) a service provider, or(b) a Ministerially recognised accrediting agency.contestable service means:(a) any service provided for the purpose of complying with Division 4 of Part 3 of the Act, and(b) any service comprising work relating to an extension of a service provider’s distribution system or an increase in the capacity of a service provider’s distribution system.energy ombudsman means the energy ombudsman appointed under an approved energy ombudsman scheme.energy services corporation has the same meaning as it has in the Energy Services Corporations Act 1995.greenhouse gas benchmark statement means a statement required to be lodged by a benchmark participant under section 97CB of the Act.Ministerially recognised accreditation scheme means a scheme recognised by the Minister under clause 122.Ministerially recognised accrediting agency means an accrediting agency recognised by the Minister under clause 122.recognised code or recognised document, means a code or document approved in writing by the Director-General, notice of which has been given in a newspaper circulating throughout the State.residential premises means:(a) any premises or part of premises (including any land occupied with the premises) used or intended to be used as a place of residence, and(b) includes a moveable dwelling (within the meaning of the Local Government Act 1993) or site on which a moveable dwelling is situated or intended to be situated (or both the moveable dwelling and the site), if the moveable dwelling is used or intended to be used as a place of residence.service provider means a distribution network service provider.the Act means the Electricity Supply Act 1995.(2) Expressions defined for the purposes of Part 8A of the Act have the same meaning in this Regulation as they have in that Part.cl 3: Am 20.12.2002; 2009 (266), Sch 1 [1]; 2009 No 100, Sch 2.2 [1]; 2010 (59), Sch 1 [1]; 2013 (165), Sch 1 [1] [2].
4 Notes
The explanatory note, table of contents and notes in this Regulation do not form part of the Regulation.
Part 2 Customer consultation and service
Division 1 Customer consultation
pt 2, div 1: Ins 2013 (165), Sch 1 [3].
5 Customer consultative groups
(1) A customer consultative group appointed by a service provider is to be constituted in accordance with a charter approved by the Minister and, if it is so constituted, is not required to comply with section 90 (1) and (2) of the Act.(2) Any such charter may also provide for other matters relating to the customer consultative group, including the procedure of the group (including meeting intervals), funding of the group and access to information by the group.pt 2, div 2 (cll 5–11): Ins 2013 (165), Sch 1 [3].
Division 2 Distributor service standards
pt 2, div 2 (cll 5–11): Ins 2013 (165), Sch 1 [3].
6 Distributor service standards
The requirements set out in this Division are distributor service standards.Note—The requirements of this Division are enforceable under the National Energy Retail Rules and are applicable to distributors within the meaning of the National Energy Retail Law (NSW).pt 2, div 2 (cll 5–11): Ins 2013 (165), Sch 1 [3].
7 Connection on agreed date
A service provider who fails to provide a customer connection service (other than a connection service under Chapter 5A of the National Electricity Rules) on or before the date agreed between the distributor and a small customer or the customer’s representative must pay to the customer, as compensation for the delay, not less than $60 for each day that elapses between the agreed date and the date on which the service is actually provided (up to a maximum total of $300).pt 2, div 2 (cll 5–11): Ins 2013 (165), Sch 1 [3].
8 Time limit for energisation or re-energisation
(1) This clause applies if a small customer is entitled to be provided with an energisation or re-energisation service by a service provider.(2) The service provider must energise or re-energise the small customer’s premises:(a) if the energisation or re-energisation request is made before 3.00 pm on a business day, by not later than the end of the next business day, or(b) if the energisation or re-energisation request is made after 3.00 pm on a business day, by not later than the end of the second business day following the day the request is made.(3) The service provider and the small customer may agree on a period longer than the period specified in subclause (2) as the period within which the premises are to be energised or re-energised.(4) The service provider is not required to energise or re-energise premises within a period specified by this clause if the relevant equipment is not in place to do so.(5) In this clause:business day means a day that is not a Saturday or a Sunday or a day that is wholly or partly a public holiday.pt 2, div 2 (cll 5–11): Ins 2013 (165), Sch 1 [3].
9 Mandatory periods for de-energisation
(1) If a retailer notifies a service provider that a small customer of the retailer wishes to arrange for de-energisation of the customer’s premises, the service provider must de-energise the premises within 2 days of the notice or within such further period as the customer requests.(2) If a retailer notifies a service provider that the retailer wishes to arrange for de-energisation of the small customer’s premises on a ground permitted under the National Energy Retail Rules, the service provider must de-energise the premises within 2 days (not including any day that is a protected period within the meaning of Part 6 of those rules).pt 2, div 2 (cll 5–11): Ins 2013 (165), Sch 1 [3].
10 Disconnection notices
(1) A service provider must issue a notice to a small customer when the service provider de-energises the customer’s premises at the request of a retailer on a ground permitted under the National Energy Retail Rules.(2) The notice must be in writing and contain the following information:(a) the matter for which premises were de-energised,(b) details of the telephone number of a contact person for the retailer,(c) the arrangements that are required to be made by the small customer for re-energisation of the premises, including any related costs payable by the customer,(d) the dispute resolution procedures available to the small customer, including contact details for the Energy Ombudsman.pt 2, div 2 (cll 5–11): Ins 2013 (165), Sch 1 [3].
11 Repair of faulty street lights
(1) A service provider who fails to repair faulty street lighting on or before the date agreed between a small customer and the service provider as the date by which the repair is to be completed must pay to the customer, as compensation for the loss of illumination, not less than $15.(2) This clause applies to street lighting that is owned by the service provider or that the service provider is under a legally enforceable obligation to maintain, but does not apply to street lighting to which the service provider merely supplies electricity or connection services.(3) This clause only applies to or in respect of a small customer if the customer’s premises abut the part of the street that (but for the fault) would ordinarily be illuminated by the street lighting.pt 2, div 2 (cll 5–11): Ins 2013 (165), Sch 1 [3].
Part 3 Energy ombudsman schemes
pt 3, hdg (previously Part 6, heading): Am 2013 (165), Sch 1 [4]. Renumbered 2013 (165), Sch 1 [5].
12 Persons who may apply to energy ombudsman
(1) For the purposes of section 96A (1) of the Act, the following persons may apply to an energy ombudsman under an approved energy ombudsman scheme for a review of a decision:(a) a small customer in respect of a matter arising between the customer and an exempt person concerning a contract for the supply of electricity or gas (including charges for electricity or gas) or any other matter relating to the supply of electricity or gas by the exempt person to the customer,(b) a small customer in respect of a matter arising between the customer and a retailer or service provider concerning the obligations of the retailer or service provider under the Act or this Regulation,(c) a small customer in respect of a matter arising between the customer and a retailer concerning the obligations of the retailer under the Gas Supply Act 1996 or regulations under that Act,(d) a regulated offer customer in respect of a matter arising between the regulated offer customer and a retailer concerning regulated offer prices or a regulated pricing arrangement under the Act, the Gas Supply Act 1996 or the National Energy Retail Law (NSW).(2) For the purposes of section 96A (3) of the Act, a review of a decision on an application made by a person referred to in subclause (1) is to be free of charge to the person.(3) In this clause:exempt person means:(a) an exempt seller or a person who is exempt (under section 3B of the National Energy Retail Law (NSW)) from the requirement to hold a retailer’s authorisation in respect of the sale of electricity or gas, or(b) a person exempted from section 13 of the Act.cll 12: Ins 2013 (165), Sch 1 [6].
13 Solar bonus disputes
An energy ombudsman scheme may deal with a dispute between a customer and a service provider or a retailer arising out of the solar bonus scheme (being the scheme established under section 15A of the Act for credits for electricity supplied to the network by customers using complying generators).cll 13: Ins 2013 (165), Sch 1 [6].
14 Reports by energy ombudsman
(1) The energy ombudsman:(a) must cause copies of all public reports issued by the energy ombudsman to be given to the Minister, and(b) must cause notice to be given to the Minister of changes in the policies and procedures to be adopted in connection with the relevant approved energy ombudsman scheme.(2) Without limiting subclause (1), the Minister may from time to time require the energy ombudsman appointed under an approved energy ombudsman scheme to provide the Minister with reports on the operation of the scheme, including:(a) particulars as to the extent to which the scheme is meeting the objectives referred to in section 96B of the Act, and(b) particulars as to the extent to which the scheme has met relevant best practice benchmarks, and(c) particulars as to the extent to which licence holders or specified licence holders and other persons bound by the scheme have complied with their obligations under the scheme.cl 14 (previously cl 53): Am 2013 (165), Sch 1 [7]. Renumbered 2013 (165), Sch 1 [8].
Part 4 Exemptions relating to service providers and supply arrangements
pt 4 (previously Part 8): Renumbered 2013 (165), Sch 1 [11].
15 Exemptions from sec 13
(1) The object of this clause is to exempt certain persons from a provision of the Act that prohibits the operation of distribution systems for retail trading in electricity otherwise than by licensed service providers.(2) Any person who owns or controls a distribution system (other than TransGrid or a service provider listed in Schedule 3 to the Act) is exempt from the operation of section 13 of the Act.Note—Clause 17 exempts the Lord Howe Island Board from the operation of section 13 of the Act.cl 15 (previously cl 66): Renumbered 2013 (165), Sch 1 [32].
16 Exemptions from sec 16
(1) The object of this clause is to exempt certain matters from a provision of the Act that prohibits the operation of distribution systems for retail trading in electricity otherwise than for retailers.(2) The operation of a distribution system by a licensed service provider, for the purpose only of conveying electricity in accordance with an electricity supply arrangement for which an exemption is in force under the National Energy Retail Law (NSW) or the National Energy Retail Law (Adoption) Act 2012, is exempt from the operation of section 16 of the Act.cl 16 (previously cl 67): Am 2013 (165), Sch 1 [12] [13]. Renumbered 2013 (165), Sch 1 [32].
17 Exemptions for Lord Howe Island Board
(1) The Lord Howe Island Board is exempt from the operation of sections 13 and 15A of the Act.(2), (3) (Repealed)cl 17 (previously cl 69): Am 2009 (266), Sch 1 [1]; 2010 (723), Sch 1 [2]; 2013 (165), Sch 1 [15] [16]. Renumbered 2013 (165), Sch 1 [32].
18 Exemptions for ActewAGL
(1) ActewAGL is exempt from the operation of section 15A of the Act.(2) The terms of any electricity supply arrangement (including any feed-in tariff arrangement) that is entered into by ActewAGL with a customer in New South Wales must comply with the Utilities Act 2000 and the Electricity Feed-in (Renewable Energy Premium) Act 2008 of the Australian Capital Territory as if the customer were in the Australian Capital Territory.(3) In this clause:ActewAGL means ActewAGL Distribution.cl 18 (previously cl 69A): Ins 2010 (723), Sch 1 [3]. Am 2013 (165), Sch 1 [17]. Renumbered 2013 (165), Sch 1 [32].
19 Conditions applying to exemptions relating to residential premises
(1) The exemption of a person (the exempt person) from a provision of the Act under clause 15 is subject to the conditions set out in this clause if the person in respect of whom the connection services are provided occupies residential premises and the person’s electricity consumption is measured by a separate electricity meter.(2) The following conditions apply:(a) the exempt person must provide connection services to the premises in accordance with any agreement relating to occupation of the premises between the exempt person and the person to whom the electricity is supplied,(b) (Repealed)(c) the exempt person is bound by, and must comply with, any decision of the energy ombudsman in relation to a complaint or dispute relating to the provision of connection services.(3) (Repealed)cl 19 (previously cl 70): Am 21.12.2001; 2013 (165), Sch 1 [18]–[23]. Renumbered 2013 (165), Sch 1 [32].
20 Conditions on exemptions for certain residential premises relating to disconnection from distribution system
(1) The exemption of a person (the exempt person) from a provision of the Act under clause 15 is subject to the condition that the exempt person comply with this clause, if the person in respect of whom the connection services are provided occupies residential premises and the person’s electricity consumption is measured by a separate electricity meter.(2) An exempt person may not disconnect premises from the person’s distribution system:(a) while any application made by the occupier of the premises for assistance under:(i) any Government funded rebate or relief scheme, oris pending, or(ii) any payment plan operated by the exempt person,(b) while any life support system that relies on electricity for its operation is in use at the premises.(3) In the event that the exempt person becomes authorised (under an agreement with the person in respect of whom the connection services are provided) to disconnect premises from a distribution system, the exempt person must not do so:(a) on a Friday, Saturday or Sunday, or(b) on a public holiday or day immediately preceding a public holiday, or(c) after 3.00 pm on any other day.(4) The exempt person must not take action to disconnect premises from the exempt person’s distribution system unless the exempt person has given at least 14 days written notice of the exempt person’s intention to do so.(5) The notice:(a) must specify the grounds on which the exempt person is taking the action proposed, and(b) must indicate the date on or after which the supply to the customer’s premises may be disconnected if those grounds are not removed, being a date occurring not earlier than 14 days after the notice is sent, and(c) must advise the customer of the customer’s rights under subclause (2).(6) An exempt person must, if the grounds on which the supply was disconnected are remedied by the occupier of the premises concerned, reconnect premises within a reasonable time.(7) An exempt person must, on receiving notice that the exempt person’s premises are to be disconnected from the distribution system, immediately give written notice of the disconnection to any person to whom the exempt person provides connection services or supplies electricity under an electricity supply arrangement and who will be affected by the disconnection.(8) Nothing in this clause affects any right or obligation to disconnect premises arising from the operation of the Electricity Supply (Safety and Network Management) Regulation 2002 or Electricity (Consumer Safety) Act 2004.cl 20 (previously cl 71): Am 21.12.2001; 2004 No 4, Sch 4.5 [4]; 2005 No 98, Sch 2.18; 2013 (165), Sch 1 [24]–[30]. Renumbered 2013 (165), Sch 1 [32].
21 Offence
A person who fails to comply with a condition of an exemption applying to the person under this Part is guilty of an offence.Maximum penalty: 100 penalty units (in the case of a corporation) or 25 penalty units (in any other case).cl 21 (previously cl 73): Renumbered 2013 (165), Sch 1 [32].
Part 5 Greenhouse gas benchmarks
pt 5 (previously Part 8A): Ins 20.12.2002. Renumbered 2013 (165), Sch 1 [33].
Division 1 General
pt 5, div 1 (previously Part 8A, Div 1): Ins 20.12.2002. Renumbered 2013 (165), Sch 1 [33].
22 Greenhouse gases
For the purposes of the definition of greenhouse gas in section 97AB of the Act, sulphur hexafluoride is prescribed as a greenhouse gas.cl 22 (previously cl 73A): Ins 20.12.2002. Renumbered 2013 (165), Sch 1 [38].
Division 2 Benchmark participants
pt 5, div 2 (previously Part 8A, Div 2): Ins 20.12.2002. Renumbered 2013 (165), Sch 1 [33].
23 Electricity generators prescribed as benchmark participants
(1) Macquarie Generation is prescribed as an electricity generator for the purposes of section 97BB (1) (b) of the Act in respect of its supply of electricity to the Tomago Aluminium Company Pty Ltd.(2) Delta Electricity is prescribed as an electricity generator for the purposes of section 97BB (1) (b) of the Act in respect of its supply of electricity to:(a) BlueScope Steel (AIS) Pty Ltd (ACN 000 019 625), and(b) BHP Billiton Limited (ACN 004 028 077).cl 23 (previously cl 73B): Ins 20.12.2002. Am 19.12.2003; 2013 (165), Sch 1 [34]. Renumbered 2013 (165), Sch 1 [38].
24 Circumstances in which person is taken to be a large customer
(1) For the purposes of section 97BB (2) (d) of the Act, a customer or a related entity of a customer is taken to be a large customer if:(a) the amounts of electricity required to be used for the purposes of the definition of large customer in section 97AB of the Act, as measured from the point of consumption, are used by the customer or the related entity of a customer (whether on the customer’s or related entity’s own account or together with one or more other such customers as are related entities) in the year preceding the making of the election to be an elective participant, or(b) the Tribunal is satisfied that the customer or related entity (as the case may require) is likely to use the required amounts of electricity in the year in which the election is to have effect (whether the customer or related entity is likely to do so on its own account or together with one or more other such customers as are related entities).(2) For the purposes of section 97BB (2) (d) of the Act, a customer or a related entity of a customer is taken to be a large customer who uses electricity at more than one site in this State if:(a) subsection (1) applies to the customer or related entity (as the case may require), and(b) each site is owned or occupied:(i) by either the customer or one of the other customers referred to in subclause (1) (a) and (b), oras the case may require.(ii) by the related entity,(3) In this clause, means a related entity referred to in paragraph (b) of the definition of large customer in section 97AB of the Act.(4) (Repealed)cl 24 (previously cl 73BA): Ins 20.12.2002. Am 19.12.2003; 2005 (630), Sch 1 [1]–[8]. Renumbered 2013 (165), Sch 1 [38].
25 Elections to become benchmark participants
(1) An election by a person to become an elective participant is to be made in the form and manner approved by the Tribunal and is to specify the period (being 1 year or a specified number of years) for which the election is to have effect.(2) An election must identify any retailer or electricity generator who is to supply the electricity load or the part of the load covered by the election.(3) An election must be made not later than 30 June in the year preceding the year in which the election is to have effect or on any later day approved by the Tribunal.(4) Despite subclause (3), an election to be a benchmark participant in respect of the year commencing 1 January 2003 may be made not later than 1 April 2003 or any later day approved by the Tribunal.cl 25 (previously cl 73BB): Ins 20.12.2002. Am 1.10.2004; 2013 (165), Sch 1 [35]. Renumbered 2013 (165), Sch 1 [38].
26 Elections by large customers
(1) A person who makes an election to become an elective participant as a large customer must, before or when making the election, provide evidence to the Tribunal that the person is a customer, or a related entity of a customer, that used or is likely to use 100 gigawatt hours or more of electricity at a single site, or at more than one site (at least one of which used or is likely to use 50 gigawatt hours or more), in this State, as referred to in clause 24 (2) (whether on its own account or together with one or more other such customers as are related entities).(1A) The evidence referred to in subclause (1) includes evidence of who used, or is likely to use, the electricity to be included in the election.(2) The Tribunal may require a person who makes an election referred to in this clause to provide specified information and documents for the purposes of providing the evidence required by this clause.(2A) A person must not make an election to become an elective participant as a large customer for a period in respect of the whole or part of a site if the site, or the relevant part of the site, is the subject of an election by another person for the same period.(3) A person may make an election to become an elective participant as a large customer in respect of part of a customer’s electricity load (whether or not it is part of a load related to a single site or more than one site, and whether or a not it includes the load, or part of the load, of one or more such customers as are related entities of the person) if that part meets the requirements under the Act and this Regulation for the classification of the person as a large customer.(3A) In this clause, means a related entity referred to in paragraph (b) of the definition of large customer in section 97AB of the Act.(4) (Repealed)cl 26 (previously cl 73BC): Ins 20.12.2002. Am 19.12.2003; 1.10.2004; 2005 (630), Sch 1 [9]–[12]. Renumbered 2013 (165), Sch 1 [38].
27 Duration of election to be elective participant
(1) An election to be an elective participant has no effect unless it is accepted by the Tribunal.(1A) If only part of an electricity load is covered by an election, the Tribunal must not accept the election unless it is satisfied that the part will be separately metered at the commencement of the period in respect of which the election is made.(2) The Tribunal must, as soon as practicable after accepting an election, give written notice of the acceptance to:(a) the person who made the election, and(b) any retailer or electricity generator that is to supply the electricity load or the part of the load covered by the election.(3) An election to be an elective participant that is accepted by the Tribunal has effect, subject to this clause, for the period specified in the notice of acceptance.(4) An election by a large customer to be an elective participant ceases to have effect at the end of a year in which the Tribunal gives the large customer written notice of cancellation or the large customer notifies the Tribunal of its intention not to continue as an elective participant.(5) An elective participant who does not wish to continue to be an elective participant in the succeeding year must notify the Tribunal not later than 30 June in the preceding year.(6) Notice for the purpose of subclause (5) must be given in the form and manner approved by the Tribunal.cl 27 (previously cl 73BD): Ins 20.12.2002. Am 19.12.2003; 1.10.2004; 2013 (165), Sch 1 [35]. Renumbered 2013 (165), Sch 1 [38].
28 Tribunal may cancel election
(1) The Tribunal may cancel an election by an elective participant that has made an election as a large customer if it is satisfied, or reasonably suspects, that the elective participant was not eligible to make the election or does not meet the requirements for making an election as a large customer.(2) In considering whether to take action under subclause (1), the Tribunal is not required to consider any reduction in the consumption or anticipated consumption of electricity by an elective participant that is due to abatement measures carried out for the purposes of the Act, this Regulation or the greenhouse gas benchmark rules.cl 28 (previously cl 73BE): Ins 20.12.2002. Renumbered 2013 (165), Sch 1 [38].
29 Joint ventures
The circumstances when a person is taken to be engaged in a joint venture with a customer or a related entity of a customer are where the person is a party to a written contract or agreement with that customer or that related entity of a customer, under which they are or will be:(a) undertaking a task, project or commercial venture either jointly, in common or in partnership (whether incorporated or not), and(b) doing so with a view to sharing in the profits or benefits generated from that task, project or commercial venture.cll 29: Ins 2005 (630), Sch 1 [13]. Renumbered 2013 (165), Sch 1 [38].
30 Electricity purchases
For the purposes of applying section 97BD (2) (a) of the Act, and any rules made under section 97K (1) (c) of the Act, an elective participant:(a) that is a large customer, andis taken to be the purchaser of all the electricity that applies to the election that qualifies it to become an elective participant.(b) that is not the purchaser of the whole or part of the electricity that qualifies it (either in its own right or as a related entity of a customer) as a large customer,cll 30 (previously cll 73BEA, 73BEB): Ins 2005 (630), Sch 1 [13]. Renumbered 2013 (165), Sch 1 [38].
31 Payment of greenhouse penalty when election ceases to have effect
If an election by an elective participant ceases to have effect and a further election is not made by the participant or is refused by the Tribunal:(a) any greenhouse penalty payable in respect of the election period, and any greenhouse penalty payable for greenhouse shortfall carried forward from the previous compliance period, is to be assessed and paid at the end of that period as if the election were still in force, and(b) a greenhouse shortfall may not be carried forward if so provided by the greenhouse gas benchmark rules.cl 31 (previously cl 73BF): Ins 20.12.2002. Am 2009 No 100, Sch 2.2 [2]. Renumbered 2013 (165), Sch 1 [38].
Division 3 Adjustment of greenhouse penalty
pt 5, div 3 (previously Part 8A, Div 3): Ins 20.12.2002. Renumbered 2013 (165), Sch 1 [33].
32 CPI adjustment to greenhouse penalty
(1) For the purposes of section 97CA (3) of the Act, the amount of the greenhouse penalty is to be adjusted, on and from 1 July in each year (commencing on 1 July 2004) by the following formula:%20AND%20(No%3D0468)%20AND%20(Year%3D2001)%20AND%20(%22Historical%20Document%22%3D0))/g2.gif)
where:P is the amount of the adjusted penalty (rounded to the nearest 50 cents).M is the greenhouse penalty specified for the compliance period concerned in section 97CA (2) of the Act.A is the sum of the consumer price index numbers for each quarter of the year previous to the year commencing on 1 July when the adjustment is to be made.B is the sum of the consumer price index numbers for each quarter of the year commencing 1 July 2005.(2) In this clause:consumer price index has the same meaning as it has in section 97CA of the Act.cl 32 (previously cl 73C): Ins 20.12.2002. Am 2006 No 83, Sch 2 [1] [2]; 2009 No 100, Sch 2.2 [2]. Renumbered 2013 (165), Sch 1 [38].
Division 4 Renewable energy certificates
pt 5, div 4 (previously Part 8A, Div 4): Ins 20.12.2002. Renumbered 2013 (165), Sch 1 [33].
33 Definitions
In this Division:relevant acquisition has the same meaning as it has in the Renewable Energy (Electricity) Act 2000 of the Commonwealth.renewable power percentage has the same meaning as it has in the Renewable Energy (Electricity) Act 2000 of the Commonwealth.cl 33 (previously cl 73D): Ins 20.12.2002. Renumbered 2013 (165), Sch 1 [38].
34 Circumstances in which renewable energy certificates may be counted towards greenhouse gas benchmark
(1) A renewable energy certificate may be counted towards the greenhouse gas benchmark, or to abate a greenhouse gas shortfall, for a compliance period by a benchmark participant (other than an elective participant) if the following are satisfied:(a) the certificate has been surrendered by the participant under the Renewable Energy (Electricity) Act 2000 of the Commonwealth or the Tribunal is satisfied that an offer to surrender the certificate has been made under that Act for that compliance period,(b) the participant’s greenhouse gas benchmark statement specifies the number of renewable energy certificates surrendered or proposed to be surrendered under that Act for that compliance period,(c) the costs of, or associated with, the certificate have not been paid or reimbursed to the participant by an elective participant or otherwise passed on by the participant to an elective participant.(2) A renewable energy certificate may be counted towards the greenhouse gas benchmark, or to abate a greenhouse gas shortfall, for a compliance period by an elective participant if the following are satisfied:(a) the certificate has been surrendered by another benchmark participant under the Renewable Energy (Electricity) Act 2000 of the Commonwealth or the Tribunal is satisfied that an offer to surrender the certificate has been made under that Act for that compliance period,(b) the elective participant’s greenhouse gas benchmark statement specifies the number of renewable energy certificates proposed to be counted for that compliance period,(c) the costs of, or associated with, the certificate have been paid by or reimbursed by the elective participant to another benchmark participant or have been otherwise passed on to the elective participant by another benchmark participant,(d) evidence satisfactory to the Tribunal of the matters referred to in paragraph (c) has been provided to the Tribunal with the elective participant’s greenhouse gas benchmark statement.cl 34 (previously cl 73DA): Ins 20.12.2002. Am 2009 No 100, Sch 2.2 [2]. Renumbered 2013 (165), Sch 1 [38].
35 Limit on number of renewable energy certificates that may be counted
(1) The maximum number of renewable energy certificates that may be counted by a benchmark participant towards the participant’s greenhouse gas benchmark in a compliance period is the number calculated in accordance with this clause.(2) In the case of a benchmark participant that is a market customer (other than a retailer), the total number of the certificates is calculated by multiplying the total amount in MWh of the participant’s relevant acquisitions of electricity purchased for use in this State in the compliance period concerned by the renewable power percentage for the compliance period and rounding the result to the nearest MWh.(3) In the case of a benchmark participant that is a retailer or a participant referred to in section 97BB (1) (b) of the Act, the total number of the certificates is calculated:(a) by multiplying the total amount in MWh of the participant’s relevant acquisitions of electricity purchased for use in this State in the compliance period concerned by the renewable power percentage for the compliance period and rounding the result to the nearest MWh, and(b) by subtracting from that amount the number of any certificates of a kind referred to in clause 34 (2) (c) applicable to the compliance period.(4) In the case of an elective participant, the total number of the certificates is calculated:(a) if electricity is purchased at a connection point located in a distribution network, by multiplying the total amount in MWh of electricity purchases related to the electricity load covered by the election in the compliance period concerned by the renewable power percentage for the compliance period and by the distribution loss factor applicable to the connection point and rounding the result to the nearest MWh, or(b) if electricity is not so purchased, by multiplying the total amount in MWh of electricity purchases related to the electricity load covered by the election in the compliance period concerned by the renewable power percentage for the compliance period and rounding the result to the nearest MWh.(5) In this clause:connection point has the same meaning as it has in the National Electricity Rules.distribution network has the same meaning as it has in the National Electricity Rules.distribution loss factor has the same meaning as it has in the National Electricity Rules.cl 35 (previously cl 73DB): Ins 20.12.2002. Am 2009 No 100, Sch 2.2 [2]; 2013 (165), Sch 1 [36]. Renumbered 2013 (165), Sch 1 [38].pt 8A, div 5: Ins 20.12.2002.
Division 5 Assessment of compliance with greenhouse gas benchmarks
36 Assessment of compliance with greenhouse gas benchmarks
(1) The assessment of the greenhouse shortfall (if any) and of liability for greenhouse penalty set out in the greenhouse gas benchmark statement of a benchmark participant is, unless another assessment is or has been made by the Tribunal, taken to be the greenhouse shortfall or the liability of the participant for greenhouse penalty for the participant for the compliance period concerned.(2) The assessment has effect as if it were a notice of assessment signed by the Tribunal and given to the participant on the day on which the assessment is taken to have been made.(3) The assessment is taken to have been made on 1 March in the following year (or on the day occurring 3 months after the termination day in the case of the final compliance period), or the day on which the greenhouse gas benchmark statement is lodged, whichever is the later.cl 36 (previously cl 73E): Ins 20.12.2002. Am 2009 No 100, Sch 2.2 [2] [3]. Renumbered 2013 (165), Sch 1 [38].
37 Default assessments
(1) The Tribunal may make an assessment of the greenhouse shortfall (if any), and of the liability for greenhouse penalty, for a compliance period of a benchmark participant if the participant fails to lodge a greenhouse gas benchmark statement for the compliance period in accordance with the Act.(2) In making an assessment under this section, the Tribunal may:(a) base its assessment on its best estimate of the participant’s sale or use of electricity in this State, verified by AEMO where possible, and(b) take into account any other matters the Tribunal considers appropriate.cl 37 (previously cl 73EA): Ins 20.12.2002. Am 2009 No 100, Sch 2.2 [2]; 2013 (165), Sch 1 [37]. Renumbered 2013 (165), Sch 1 [38].
38 Amendment of assessments
(1) The Tribunal may at any time amend any assessment of the greenhouse shortfall (if any), and of the liability for greenhouse penalty, for a compliance period of a benchmark participant by making any alterations or additions that the Tribunal thinks necessary, whether or not a greenhouse penalty has been paid for the compliance period.(2) If the Tribunal is of the opinion that there has been an avoidance of a greenhouse penalty, the Tribunal may:(a) if of the opinion that the avoidance of the penalty is due to fraud or evasion—at any time, oramend the assessment by making the alterations or additions that the Tribunal thinks necessary to correct the assessment.(b) in any other case—within 1 year from the day on which the assessment is made,(3) A benchmark participant may, not later than 1 year from the day on which an assessment is made, apply to the Tribunal for an amended assessment.(4) An application by a benchmark participant must be in writing and state the grounds on which it is made.(5) A benchmark participant may, for the purposes of an application under this clause or, with the consent of the Tribunal, submit details of abatement certificates sought to be surrendered, and of renewable energy certificates sought to be counted, that have not been submitted previously in respect of the compliance period concerned for consideration for the purposes of an amended assessment.(6) The Tribunal may take into account details submitted under subclause (5) when determining whether to amend an assessment.(7) A benchmark participant whose liability for a greenhouse penalty is reduced as a result of an amended assessment is entitled to a refund of any additional greenhouse penalty paid under the previous assessment.cl 38 (previously cl 73EB): Ins 20.12.2002. Am 2009 No 100, Sch 2.2 [2]. Renumbered 2013 (165), Sch 1 [38].
39 Time limits for amended assessments
(1) An amendment that reduces a benchmark participant’s liability to pay a greenhouse penalty is not effective unless it is made within 1 year from the day on which the assessment was made.(2) If an assessment has been amended in any particular, the Tribunal may, within 1 year from the day on which a greenhouse penalty became payable under the amended assessment, make, in or in relation to any particular, any further amendment of the assessment that, in the Tribunal’s opinion, is necessary to effect any just reduction in the benchmark participant’s liability under the assessment.(3) If an application is made by a benchmark participant for an amendment of an assessment within 1 year after a greenhouse penalty became payable under that assessment, the Tribunal may amend the assessment even though the period of 1 year has elapsed.cll 39: Ins 20.12.2002. Renumbered 2013 (165), Sch 1 [38].
40 Amended assessments generally
(1) Nothing in this Division prevents the amendment of an assessment of the greenhouse shortfall (if any), and of the liability for greenhouse penalty, of a benchmark participant to give effect to:(a) the decision on any review or appeal under the Act, or(b) its amendment by reduction of any particular following the participant’s objection or pending any review or appeal under the Act.(2) A greenhouse penalty payable under an assessment amended under this Division is taken to be payable:(a) if the amendment is wholly or partly as a result of an error by the Tribunal—on the day on which the amended assessment is made, or(b) in any other case—on the day on which a greenhouse penalty became payable under the original assessment.(3) An amended assessment is taken to be an assessment for the purposes of the Act and this Regulation.cll 40 (previously cll 73EC, 73ED): Ins 20.12.2002. Renumbered 2013 (165), Sch 1 [38].
41 Notice of assessments
As soon as practicable after an assessment of the greenhouse shortfall (if any), and of the liability for greenhouse penalty, of a benchmark participant is made or amended under this Division, the Tribunal must give written notice of the assessment or amended assessment to the participant.cl 41 (previously cl 73EE (previously cl 73EF)): Ins 20.12.2002. Renumbered 14.2.2003; 2013 (165), Sch 1 [38].
Part 6 Greenhouse gas abatement certificate scheme
pt 6 (previously Part 8B): Ins 14.2.2003. Renumbered 2013 (165), Sch 1 [39].
Division 1 Definitions
pt 6, div 1 (previously Part 8B, Div 1): Ins 14.2.2003. Renumbered 2013 (165), Sch 1 [39].
42 Definitions
In this Part:approved auditor means a person required to conduct an audit under Division 8.carbon sequestration activity—see clause 44.category A electricity generation activity—see clause 43.Commonwealth renewable energy scheme baseline of a power station means the 1997 eligible renewable power baseline for the power station within the meaning of section 14 of the Renewable Energy (Electricity) Act 2000 of the Commonwealth.demand side abatement activity—see clause 45.electricity generation activity—see clause 43.eligible land has the meaning given by the greenhouse gas benchmark rules.large user means an elective participant, or a market customer who is a large customer.large user abatement activity—see clause 46.mandatory greenhouse gas scheme means a mandatory scheme (whether of this State or another jurisdiction) intended to promote the reduction of greenhouse gas emissions or that has the effect of substantially reducing greenhouse gas emissions (but does not include the abatement certificate scheme under Part 8A of the Act).ORER means the Office of the Renewable Energy Regulator within the meaning of the Renewable Energy (Electricity) Act 2000 of the Commonwealth.cl 42 (previously cl 73F): Ins 14.2.2003. Renumbered 2013 (165), Sch 1 [41].
Division 2 Eligibility for accreditation
Note—
This Division, together with the greenhouse gas benchmark rules, provides for eligibility for accreditation as an abatement certificate provider in respect of the following activities:
(a) electricity generation activities (including category A electricity generation activities),
(b) carbon sequestration activities,
(c) demand side abatement activities,
(d) large user abatement activities.
pt 6, div 2 (previously Part 8B, Div 2): Ins 14.2.2003. Renumbered 2013 (165), Sch 1 [39].
43 Electricity generation activities
(1) A person is eligible for accreditation as an abatement certificate provider in respect of an activity if:(a) the activity involves the generation of electricity by an existing or proposed generating system and the person is eligible for accreditation in respect of the generation of electricity by the generating system under the provisions of the greenhouse gas benchmark rules relating to generation, and(b) the generating system is equipped with metering equipment approved by the Scheme Administrator or (in the case of a proposed generating system) the Scheme Administrator is satisfied that the generating system will, when the generating system is operating, be equipped with appropriate metering equipment, and(c) the person has record keeping arrangements with respect to the activity approved by the Scheme Administrator or (in the case of a proposed generating system) the Scheme Administrator is satisfied that the person will, when the generating system is operating, have appropriate record keeping arrangements in respect of that activity, and(d) in the case of a proposed generating system—the Scheme Administrator is satisfied that the system will operate substantially as described in the person’s application for accreditation.(2) A person is also eligible for accreditation as an abatement certificate provider in respect of an activity if:(a) the activity involves the generation of electricity by an existing or proposed generating system and the person is a retailer in respect of electricity generated by the generating system and purchased by the retailer under a power purchase agreement, and(b) the power purchase agreement remains in force, and(c) the person has previously claimed, or could have claimed, the electricity generation as category A under the arrangements relating to greenhouse strategies in force under the Act before the commencement of Part 8A of that Act (and referred to in the Emissions Workbook), and(d) the generating system is classified as Category A under the greenhouse gas benchmark rules, and(e) the person is eligible for accreditation in respect of the generation of electricity by the generating system under the greenhouse gas benchmark rules relating to generation.Note—Category A electricity generation activities are electricity generation activities that are deemed to be assigned to a retailer as referred to in section 97DA (6) of the Act.(3) For the purposes of this Regulation:(a) an activity that gives rise to eligibility for accreditation under subclause (1) or (2) may be referred to as an electricity generation activity, and(b) an activity that gives rise to eligibility for accreditation under subclause (2) may also be referred to as a category A electricity generation activity.(4) In this clause:power purchase agreement has the meaning given by the greenhouse gas benchmark rules.cl 43 (previously cl 73G): Ins 14.2.2003. Am 1.10.2004; 2009 No 100, Sch 2.2 [4]; 2013 (165), Sch 1 [40]. Renumbered 2013 (165), Sch 1 [41].
44 Carbon sequestration activities
(1) A person is eligible for accreditation as an abatement certificate provider in respect of an activity if:(a) the activity is an existing or proposed carbon sequestration activity under the greenhouse gas benchmark rules and the person is eligible for accreditation as an abatement certificate provider in respect of the activity under the provisions of the greenhouse gas benchmark rules relating to carbon sequestration, and(b) the person has record keeping arrangements with respect to the activity approved by the Scheme Administrator or (in the case of a proposed carbon sequestration activity) the Scheme Administrator is satisfied that the person will, when the carbon sequestration activity is carried out, have appropriate record keeping arrangements in respect of that activity, and(c) in the case of a proposed carbon sequestration activity—the Scheme Administrator is satisfied that the activity will be carried out substantially as described in the person’s application for accreditation.(2) For the purposes of this Regulation, an activity that gives rise to eligibility for accreditation under this clause may be referred to as a carbon sequestration activity.cll 44–46 (previously cll 73GA–73GC): Ins 14.2.2003. Am 1.10.2004. Renumbered 2013 (165), Sch 1 [41].
45 Demand side abatement activities
(1) A person is eligible for accreditation as an abatement certificate provider in respect of an activity if:(a) the activity is an existing or proposed demand side abatement activity under the greenhouse gas benchmark rules and the person is eligible for accreditation in respect of the activity under the provisions of the greenhouse gas benchmark rules relating to demand side abatement, and(b) the person has record keeping arrangements with respect to the activity approved by the Scheme Administrator or (in the case of a proposed demand side abatement activity) the Scheme Administrator is satisfied that the person will, when the demand side abatement activity is carried out, have appropriate record keeping arrangements in respect of that activity, and(c) in the case of a proposed demand side abatement activity—the Scheme Administrator is satisfied that the proposal will be undertaken substantially as described in the person’s application for accreditation.(2) For the purposes of this Regulation, an activity that gives rise to eligibility for accreditation under this clause may be referred to as a demand side abatement activity.cll 44–46 (previously cll 73GA–73GC): Ins 14.2.2003. Am 1.10.2004. Renumbered 2013 (165), Sch 1 [41].
46 Large user abatement activities
(1) A person is eligible for accreditation as an abatement certificate provider in respect of an existing or proposed activity if:(a) the person is a large user, and(b) the person is eligible for accreditation as an abatement certificate provider in respect of the activity under the provisions of the greenhouse gas benchmark rules relating to large user abatement certificates, and(c) the person has record keeping arrangements with respect to the activity approved by the Scheme Administrator or (in the case of a proposed activity) the Scheme Administrator is satisfied that the person will, when the activity is carried out, have appropriate record keeping arrangements in respect of that activity, and(d) in the case of a proposed activity—the Scheme Administrator is satisfied that the activity will be carried out substantially as described in the person’s application for accreditation.(2) For the purposes of this Regulation, an activity that gives rise to eligibility for accreditation under this clause may be referred to as a large user abatement activity.cll 44–46 (previously cll 73GA–73GC): Ins 14.2.2003. Am 1.10.2004. Renumbered 2013 (165), Sch 1 [41].
Division 3 Applications for accreditation
pt 6, div 3 (previously Part 8B, Div 3): Ins 14.2.2003. Renumbered 2013 (165), Sch 1 [39].
47 Application for accreditation
(1) An application for accreditation as an abatement certificate provider in respect of an activity:(a) is to be made in the form and manner approved by the Scheme Administrator, and(b) is to be accompanied by an application fee of $500.Note—Section 97DB (5) of the Act allows the Scheme Administrator to charge a fee (in addition to the application fee) in respect of the investigation and determination of an application for accreditation.(2) An application for accreditation as an abatement certificate provider in respect of an electricity generation activity:(a) must disclose whether or not the applicant is accredited as an accredited power station under the Renewable Energy (Electricity) Act 2000 of the Commonwealth in respect of the generating system that the person owns or operates, and(b) if the applicant is so accredited, must be accompanied by any information or authorities (such as release forms) that the Scheme Administrator may require for the purpose of obtaining from ORER, or substantiating, information relating to the following:(i) any renewable energy certificates the person has created during any period,(ii) the Commonwealth renewable energy scheme baseline of the power station.(2A) For the purposes of section 97DB (1A) of the Act, an application may be made no later than 11 May 2012 for accreditation as an abatement certificate provider in relation to activities in relation to which an abatement certificate provider was accredited on or before 31 December 2009.(3) A reference in this Division to an activity includes a reference to an existing or proposed activity.cl 47 (previously cl 73H): Ins 14.2.2003. Am 1.10.2004; 2011 (163), cl 3; 2012 (178), cl 3. Renumbered 2013 (165), Sch 1 [41].
48 Benefits under other schemes
The Scheme Administrator may require a person who applies for accreditation to give to the Scheme Administrator an undertaking, in such terms as the Scheme Administrator may require, not to claim any benefit under a mandatory greenhouse gas scheme if such an action would result in a benefit being obtained under both that scheme and the abatement certificate scheme established by Part 8A of the Act in respect of the same output or greenhouse gas abatement.cll 48–50 (previously cll 73HA–73HC): Ins 14.2.2003. Renumbered 2013 (165), Sch 1 [41].
49 Grounds for refusal of application for accreditation
(1) The Scheme Administrator may refuse an application for accreditation as an abatement certificate provider in respect of an activity if:(a) the Scheme Administrator is not satisfied that the applicant is eligible for accreditation as an abatement certificate provider in respect of the activity concerned, or(b) the application for accreditation is not duly made (including if it is not accompanied by any required information or the appropriate fee), or(c) the applicant fails to give the Scheme Administrator an undertaking required to be given in connection with the application under this Division in terms satisfactory to the Scheme Administrator.(2) If the Scheme Administrator refuses an application for accreditation as an abatement certificate provider, the Scheme Administrator must advise the applicant in writing of the grounds on which the application was refused.cll 48–50 (previously cll 73HA–73HC): Ins 14.2.2003. Renumbered 2013 (165), Sch 1 [41].
50 Suspension or cancellation of accreditation
(1) The Scheme Administrator may suspend or cancel the accreditation of a person as an abatement certificate provider in respect of an activity on any of the following grounds:(a) the Scheme Administrator is satisfied that the person has ceased to be eligible for accreditation as an abatement certificate provider in respect of the activity,(b) the person has requested the suspension or cancellation,(c) the Scheme Administrator is satisfied that the person has contravened a provision of the Act, the regulations, the greenhouse gas benchmark rules or a condition to which the accreditation is subject,(d) the person has become bankrupt, applied to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounded with his or her creditors or made an assignment of his or her remuneration for their benefit,(e) the person is a corporation that is the subject of a winding up order or for which a controller or administrator has been appointed.(2) If the Scheme Administrator suspends or cancels the accreditation of a person, the Scheme Administrator is required to notify the person in writing of the suspension or cancellation and the grounds on which the accreditation is suspended or cancelled.(3) A suspension or cancellation takes effect when notice of the suspension or cancellation is served on the person by the Scheme Administrator, or on such later date as may be specified by the Scheme Administrator in the notice.cll 48–50 (previously cll 73HA–73HC): Ins 14.2.2003. Renumbered 2013 (165), Sch 1 [41].
Division 4 Prescribed conditions of accreditation
pt 6, div 4 (previously Part 8B, Div 4): Ins 14.2.2003. Renumbered 2013 (165), Sch 1 [39].
51 Conditions of accreditation
For the purposes of section 97DD (1) (a) of the Act, it is a condition of the accreditation of a person as an abatement certificate provider that the person does not contravene any of the provisions of this Division.cll 51–55 (previously cll 73I–73ID): Ins 14.2.2003. Renumbered 2013 (165), Sch 1 [41].
52 Claiming benefits under other schemes
An accredited abatement certificate provider must not contravene any undertaking, of a kind referred to in clause 48, given to the Scheme Administrator in connection with the person’s application for accreditation.cll 51–55 (previously cll 73I–73ID): Ins 14.2.2003. Renumbered 2013 (165), Sch 1 [41].
53 Commonwealth renewable energy scheme
(1) An accredited abatement certificate provider in respect of an electricity generation activity must not create an abatement certificate in respect of output for which it has already created a renewable energy certificate, subject to the greenhouse gas benchmark rules.(2) If an accredited abatement certificate provider in respect of an electricity generation activity is accredited as an accredited power station under the Renewable Energy (Electricity) Act 2000 of the Commonwealth in respect of the generating system used in connection with that electricity generation activity, the provider must provide to the Scheme Administrator such information, authorities (such as release forms) or other assistance that the Scheme Administrator may, by notice in writing to the person, require for the purpose of obtaining from ORER, or substantiating, information relating to the following:(a) any renewable energy certificates the provider has created during any period,(b) the Commonwealth renewable energy scheme baseline of the accredited power station.(3) If an accredited abatement certificate provider in respect of an electricity generation activity obtains, at any time after accreditation, accreditation as an accredited power station under the Renewable Energy (Electricity) Act 2000 of the Commonwealth in respect of the generating system used in connection with that electricity generation activity, the provider must disclose that fact to the Scheme Administrator within 21 days of becoming accredited under the Renewable Energy (Electricity) Act 2000 of the Commonwealth.cll 51–55 (previously cll 73I–73ID): Ins 14.2.2003. Renumbered 2013 (165), Sch 1 [41].
54 Category A electricity generation activities
(1) An accredited abatement certificate provider in respect of a category A electricity generation activity must provide such information and assistance to the Scheme Administrator as the Scheme Administrator, by notice in writing to the accredited abatement certificate provider, may require for the purpose of estimating the Commonwealth renewable energy baseline of a power station that supplies electricity to the provider.(2) An accredited abatement certificate provider in respect of a category A electricity generation activity must notify the Scheme Administrator in writing of any change to the power purchase agreement (including any termination of that agreement) that gives rise to the provider’s entitlement to accreditation in respect of a category A electricity generation activity within 21 days after that change occurs.cll 51–55 (previously cll 73I–73ID): Ins 14.2.2003. Renumbered 2013 (165), Sch 1 [41].
55 Carbon sequestration activity to be maintained
An accredited abatement certificate provider who creates an abatement certificate in respect of a carbon sequestration activity must ensure the continued storage, by means of planted forests on eligible land, of the quantity of carbon dioxide stored by the activity in respect of which the certificate is created (calculated in accordance with the greenhouse gas benchmark rules) for a period of 100 years after the certificate is created.cll 51–55 (previously cll 73I–73ID): Ins 14.2.2003. Renumbered 2013 (165), Sch 1 [41].
56 Retailers of elective participants to be notified to Scheme Administrator
(1) An accredited abatement certificate provider in respect of a large user abatement activity must notify the Scheme Administrator in writing if the provider enters into any agreement or arrangement to purchase electricity from a retailer that has not already been notified to the Scheme Administrator.(2) The notification must be given to the Scheme Administrator within 21 days after entering into the agreement or arrangement.cl 56 (previously cl 73IE): Ins 14.2.2003. Am 2013 (165), Sch 1 [35]. Renumbered 2013 (165), Sch 1 [41].
57 Record keeping
(1) An accredited abatement certificate provider in respect of an electricity generation activity must keep a record of the following:(a) the amount of electricity supplied by the generating system,(b) the type of fuel or fuels used by the generating system to generate electricity,(c) the source of the fuel or fuels,(d) the amount of each fuel used by the generating system to generate electricity.(2) An accredited abatement certificate provider in respect of a carbon sequestration activity must keep a record of the following:(a) the location and size of any eligible land owned or controlled from time to time by the person,(b) any carbon sequestration rights held in respect of any other eligible land from time to time,(c) any activity conducted on land referred to in subclause (2) (a) or (b) that is likely to result in a reduction in the greenhouse gas emissions abated by the planted forests on that land, including any clearing of that land.(3) An accredited abatement certificate provider in respect of a demand side abatement activity must keep a record of the following:(a) the location in which the activity occurred,(b) the abatement of greenhouse gases (calculated in accordance with the greenhouse gas benchmark rules) associated with that activity,(c) the methodology, data and assumptions used to calculate that abatement,(d) if the activity relates to the on-site generation of electricity, the matters referred to in subclause (1).(4) An accredited abatement certificate provider in respect of a large user abatement activity must keep a record of the following:(a) the location in which the activity occurred,(b) emissions of greenhouse gases associated with that activity,(c) the abatement of greenhouse gases (calculated in accordance with the greenhouse gas benchmark rules) associated with that activity,(d) the methodology, data and assumptions used to calculate that abatement.(5) An accredited abatement certificate provider must keep such other records as the Scheme Administrator, by notice in writing to the accredited abatement certificate provider, requires the accredited abatement certificate provider to keep.(6) Subclause (1) does not apply to an accredited abatement certificate provider in respect of a category A electricity generation activity, but subclause (5) applies.(7) A record required to be kept by a person by or under this clause must be retained by the person for at least 6 years after the record is made.(8) Records are to be kept in a form and manner approved by the Scheme Administrator.(9) In this clause:carbon sequestration right has the meaning given by the greenhouse gas benchmark rules.clearing of land means:(a) cutting down, felling, thinning, logging or removing any trees on the land, or(b) killing, destroying, poisoning, ringbarking, uprooting or burning trees on the land, or(c) substantially damaging or injuring trees on the land in any other way.cll 57: Ins 14.2.2003. Renumbered 2013 (165), Sch 1 [41].
58 Co-operation with audits
(1) An accredited abatement certificate provider must provide such information and assistance as is necessary to comply with any audit conducted under Division 8.(2) Without limiting subclause (1), an accredited abatement certificate provider must provide such access to premises as is necessary to comply with any schedule or timetable of audits agreed to by the accredited abatement certificate provider (whether before or after accreditation).cll 58 (previously cll 73IF, 73IG): Ins 14.2.2003. Renumbered 2013 (165), Sch 1 [41].
Division 5 Imposition of conditions by Scheme Administrator
pt 6, div 5 (previously Part 8B, Div 5): Ins 14.2.2003. Renumbered 2013 (165), Sch 1 [39].
59 Imposition of conditions by Scheme Administrator
(1) If the Scheme Administrator intends to impose a condition on the accreditation of a person as an accredited abatement certificate provider under section 97DD (1) (b) of the Act (including any condition of a kind referred to in section 97DD (3) of the Act), either at the time of accreditation or any time during the period in which the accreditation remains in force, the Scheme Administrator must give notice in writing of that fact to the person on whom the condition is to be imposed.(2) The condition takes effect on the date on which the notice is given to the person, or a later date specified in the notice, subject to subclause (3).(3) In the case of a condition to be imposed at the time of accreditation, the condition does not take effect until the date on which the person is accredited as an abatement certificate provider.(4) The Scheme Administrator may, at any time by notice in writing given to a person, revoke or vary a condition imposed on the accreditation of the person by the Scheme Administrator.(5) If the Scheme Administrator imposes or varies a condition of accreditation of a person, the Scheme Administrator must advise the person in writing of the reasons for the decision to impose or vary the condition.cll 59: Ins 14.2.2003. Renumbered 2013 (165), Sch 1 [41].
60 Financial assurances
(1) This clause applies if the Scheme Administrator imposes a condition on the accreditation of a person as an accredited abatement certificate provider requiring the person to provide a financial assurance to the Scheme Administrator to secure or guarantee the person’s compliance with any order that may be made against the person under section 97EF of the Act.(2) The amount of any financial assurance required by the Scheme Administrator is to be determined by the Scheme Administrator having regard to the following:(a) the activities in respect of which the person is accredited or to be accredited,(b) the number of abatement certificates that the person has created or is likely to create,(c) the frequency of audits conducted or to be conducted in respect of the person,(d) any other matters the Scheme Administrator considers relevant.(3) A financial assurance is to be in such form as the Scheme Administrator considers appropriate (such as a bank guarantee or bond).(4) A financial assurance provided to the Scheme Administrator may be claimed or realised by the Scheme Administrator only if:(a) an order is made against the person under section 97EF of the Act, and(b) the person who gave the financial assurance fails to comply with the order.(5) The Scheme Administrator must give to the person who provided the financial assurance written notice of its intention to make a claim on or realise the financial assurance (or any part of it) at least 21 days before doing so.(6) The maximum amount that the Scheme Administrator may claim or recover under the financial assurance is the compliance cost in respect of the person’s failure to comply with the order under section 97EF of the Act.(7) For the purposes of this clause, the compliance cost in respect of a person’s failure to comply with an order under section 97EF of the Act is to be determined by the Scheme Administrator by multiplying the number of certificates that the person failed to surrender in compliance with the order by the market value of those certificates at the time that the financial assurance is claimed on or realised.cll 60 (previously cll 73J, 73JA): Ins 14.2.2003. Renumbered 2013 (165), Sch 1 [41].
Division 6 Creation of abatement certificates
pt 6, div 6 (previously Part 8B, Div 6): Ins 14.2.2003. Renumbered 2013 (165), Sch 1 [39].
61 Form of abatement certificates
(1) Abatement certificates are to be created in a form approved by the Scheme Administrator.(2) Each abatement certificate is to include the following:(a) a statement of the activity in respect of which the abatement certificate is created, including any information relating to that activity that the Scheme Administrator, by notice in writing to an accredited abatement certificate provider, requires to be included in the certificate,(b) the compliance period in which the activity took place,(c) the name of the person who created the certificate.cl 61 (previously cl 73K): Ins 14.2.2003. Am 2009 No 100, Sch 2.2 [2]. Renumbered 2013 (165), Sch 1 [41].
62 Determination of baseline
(1) The Scheme Administrator may determine, in accordance with the greenhouse gas benchmark rules, a baseline for the activities of a person in respect of which an abatement certificate provider is entitled to create certificates.Note—Baselines may be used to determine the activities in respect of which abatement certificates may be created under the greenhouse gas benchmark rules.(2) The baseline is to be reduced in respect of the final compliance period by dividing the baseline by 365 and then multiplying it by the number of days in the final compliance period.cl 62 (previously cl 73KA): Ins 14.2.2003. Am 2009 No 100, Sch 2.2 [5]. Renumbered 2013 (165), Sch 1 [41].
63 Activities that take place before application for accreditation
(1) An accredited abatement certificate provider is not entitled to create an abatement certificate in respect of an activity that took place before the date on which the accredited abatement certificate provider lodged with the Scheme Administrator an application (completed to the satisfaction of, and in a form acceptable to, the Scheme Administrator) for accreditation as an abatement certificate provider.(2) Subclause (1) does not apply in respect of activities that take place in the year 2003 or during the period commencing on 1 January 2004 and ending on 30 June 2004.(3) In the year 2003, an accredited abatement certificate provider is not entitled to create an abatement certificate in respect of an activity that took place before 1 January 2003.(4) For avoidance of doubt, any regulations or greenhouse gas benchmark rules made under section 97EC (3) of the Act apply in respect of this clause.Note—Section 97EC (3) of the Act allows the regulations and greenhouse gas benchmark rules to specify when an activity is considered to have taken place for the purposes of Part 8A of the Act.cl 63 (previously cl 73KB): Ins 14.2.2003. Am 19.12.2003; 1.10.2004. Renumbered 2013 (165), Sch 1 [41].
64 Registration of creation of certificate
(1) An application for registration of the creation of an abatement certificate is to be made to the Scheme Administrator in the form and manner approved by the Scheme Administrator.(2) The application is to be accompanied by a fee of $0.15 for each certificate created.(3) The Scheme Administrator may refuse an application for registration of the creation of an abatement certificate on any of the following grounds:(a) the applicant is not an accredited abatement certificate provider or the accreditation of the person as an abatement certificate provider is suspended at the time of application,(b) the application for registration was not duly made (including if it is not accompanied by the appropriate fee),(c) the Scheme Administrator is not satisfied that the applicant was entitled to create an abatement certificate in respect of the activity,(d) the Scheme Administrator is of the opinion that the accredited abatement certificate provider who created the certificate has contravened a provision of the Act, the regulations, the greenhouse gas benchmark rules or the conditions of the provider’s accreditation.(4) If the Scheme Administrator refuses an application for registration of the creation of an abatement certificate, the Scheme Administrator must notify the applicant in writing of the reasons for the determination.cll 64: Ins 14.2.2003. Renumbered 2013 (165), Sch 1 [41].
65 Order requiring surrender of abatement certificates
(1) This clause applies if an order is made or is proposed to be made under section 97EF of the Act against a person who has been found guilty of an offence against section 97DD (5) of the Act, being an offence that arose as a result of the following:(a) the person contravening a condition referred to in clause 52 (relating to undertakings given to the Scheme Administrator in connection with benefits under mandatory greenhouse gas schemes),(b) the person contravening a condition referred to in clause 53 (1) (relating to the creation of abatement certificates in respect of output for which a renewable energy certificate has already been created),(c) the person contravening a condition a referred to in clause 55 (relating to maintenance of carbon sequestration).(2) For the purposes of section 97EF (4) of the Act, the number of certificates to be surrendered under the order is to be determined by the Scheme Administrator as follows:(a) in a case referred to in subclause (1) (a)—the number that is equivalent to the number of abatement certificates that, in the opinion of the Scheme Administrator, were created in respect of output or greenhouse gas abatement for which a benefit was obtained under a mandatory greenhouse gas scheme,(b) in a case referred to in subclause (1) (b)—the number that is equivalent to the number of abatement certificates that, in the opinion of the Scheme Administrator, were created by the person in contravention of the condition referred to in subclause (1) (b),(c) in a case referred to in subclause (1) (c)—the number of abatement certificates that, in the opinion of the Scheme Administrator, were created by the person in respect of carbon sequestration activities and in respect of which the person has contravened the condition referred to in subclause (1) (c).cll 65 (previously cll 73KC, 73KD): Ins 14.2.2003. Renumbered 2013 (165), Sch 1 [41].
Division 7 Transfer of certificates
pt 6, div 7 (previously Part 8B, Div 7): Ins 14.2.2003. Renumbered 2013 (165), Sch 1 [39].
66 Entitlement to create transferable abatement certificates
(1) Transferable abatement certificates may be created in respect of the following activities:(a) electricity generation activities,(b) carbon sequestration activities,(c) demand side abatement activities.(2) Any person (including a large user) who is an accredited abatement certificate provider in respect of an activity referred to in subclause (1) may create a transferable abatement certificate in respect of that activity in accordance with the Act, this Regulation and the greenhouse gas benchmark rules.cll 66–69 (previously cll 73L–73LC): Ins 14.2.2003. Renumbered 2013 (165), Sch 1 [41].
67 Entitlement to create non-transferable abatement certificates
(1) Non-transferable abatement certificates may be created in respect of large user abatement activities.(2) An accredited abatement certificate provider in respect of a large user abatement activity may create a non-transferable abatement certificate in respect of that activity in accordance with the Act, this Regulation and the greenhouse gas benchmark rules.cll 66–69 (previously cll 73L–73LC): Ins 14.2.2003. Renumbered 2013 (165), Sch 1 [41].
68 Registration of transfers of certificates
(1) An application for registration of the transfer of an abatement certificate is to be made to the Scheme Administrator in the form and manner approved by the Scheme Administrator.(2) The Scheme Administrator may refuse an application for registration of the transfer of an abatement certificate on any of the following grounds:(a) the application for registration is not duly made,(b) the Scheme Administrator is of the opinion that the proposed transfer of the abatement certificate contravenes the Act, the regulations or the greenhouse gas benchmark rules.Note—If the abatement certificate is a non-transferable abatement certificate, the Scheme Administrator must refuse an application for registration of a transfer of the certificate unless the transfer is associated with the sale of the business of the transferor to the transferee or the Scheme Administrator is otherwise authorised to register the transfer. See section 97FB of the Act.(3) If the Scheme Administrator refuses an application for registration of the transfer of an abatement certificate, the Scheme Administrator must notify the applicant in writing of the reasons for the determination.cll 66–69 (previously cll 73L–73LC): Ins 14.2.2003. Renumbered 2013 (165), Sch 1 [41].
69 Register of accredited abatement certificate providers
(1) The register of accredited abatement certificate providers is to include the following information (in addition to the information specified in section 97GA of the Act):(a) the activity or activities in respect of which the accredited abatement certificate provider is accredited as an abatement certificate provider,(b) the total number of abatement certificates created by the accredited abatement certificate provider in respect of each of those activities and registered in the register of abatement certificates in the previous financial year,(c) the States or Territories in which those activities took place,(d) such other information relating to the person’s accreditation as the Scheme Administrator considers appropriate.(2) The register of accredited abatement certificate providers is to include the following information in relation to a person whose accreditation as an abatement certificate provider is suspended or cancelled:(a) the name of the person,(b) the type of certificates (that is, transferable or non-transferable) the person was formerly entitled to create under the terms of the person’s accreditation,(c) the reason or reasons why the accreditation was suspended or cancelled,(d) the date on which the accreditation was suspended or cancelled and, in the case of a suspension, the period of the suspension,(e) any conditions of accreditation that continue to have effect in respect of the person.(3) The following information is to be made available for public inspection under section 97GA of the Act (in addition to the information referred to in section 97GA (4) of the Act):(a) the information referred to in subclause (1) (c),(b) the information referred to in subclause (2).cll 66–69 (previously cll 73L–73LC): Ins 14.2.2003. Renumbered 2013 (165), Sch 1 [41].
Division 8 Audits of accredited abatement certificate providers
pt 6, div 8 (previously Part 8B, Div 8): Ins 14.2.2003. Renumbered 2013 (165), Sch 1 [39].
70 Audits
(1) The Tribunal or the Scheme Administrator may at any time conduct or require audits to be conducted of accredited abatement certificate providers in relation to the following matters:(a) the creation of abatement certificates,(b) eligibility for accreditation,(c) compliance with any conditions of accreditation.(2) An audit may be conducted for the purpose of:(a) substantiating information provided to the Tribunal or Scheme Administrator, or(b) determining whether the provider has complied with the Act, the regulations, the greenhouse gas benchmark rules or the conditions of the provider’s accreditation.(3) In the case of an audit required by the Tribunal, the Tribunal may require the audit to be conducted by:(a) a person nominated by the Tribunal, or(b) a person chosen by the accredited abatement certificate provider from a panel of persons nominated by the Tribunal, or(c) a person nominated by the accredited abatement certificate provider and approved by the Tribunal.(4) In the case of an audit required by the Scheme Administrator, the Scheme Administrator may require the audit to be conducted by:(a) a person nominated by the Scheme Administrator, or(b) a person chosen by the accredited abatement certificate provider from a panel of persons nominated by the Scheme Administrator, or(c) a person nominated by the accredited abatement certificate provider and approved by the Scheme Administrator.(5) An approved auditor is to conduct an audit in accordance with the directions (if any) of the Tribunal or Scheme Administrator.cll 70: Ins 14.2.2003. Renumbered 2013 (165), Sch 1 [41].
71 Impersonating approved auditor
A person must not impersonate an approved auditor.Maximum penalty:(a) in the case of a corporation—250 penalty units,(b) in the case of an individual—100 penalty units.cll 71 (previously cll 73M, MA): Ins 14.2.2003. Renumbered 2013 (165), Sch 1 [41].
Division 9 Miscellaneous
pt 6, div 9 (previously Part 8B, Div 9): Ins 14.2.2003. Renumbered 2013 (165), Sch 1 [39].
72 Administrative reviews
For the purposes of section 97I (2) (d) of the Act, the following decisions are prescribed:(a) a decision of the Scheme Administrator to impose or vary a condition of accreditation of an accredited abatement certificate provider,(b) a decision of the Scheme Administrator to make a claim on or realise any financial assurance provided by an accredited abatement certificate provider.Note—This clause allows the decisions referred to above to be administratively reviewed by the Civil and Administrative Tribunal.cl 72 (previouly cl 73N): Ins 14.2.2003. Renumbered 2013 (165), Sch 1 [41]. Am 2013 No 95, Sch 2.53 [1].
Part 7 Social programs for energy
pt 7 (previously Part 9): Renumbered 2013 (165), Sch 1 [42].
73 Social Programs for Energy Codes
(1) The Minister may, with the concurrence of the Treasurer, prepare and adopt a Social Programs for Energy Code for the purpose of facilitating the delivery of any aspect of the Government’s social programs for electricity.(2) A Code may require a service provider or retailer, or an exempt seller or other person exempted from the application of the National Energy Retail Law (NSW) (exempt persons), to take such action as the Minister thinks appropriate for that purpose.(3) The Minister may adopt or amend a Code by publishing it in the Gazette. A Code or an amendment takes effect on the day it is so published or on such later day as is specified in the Code.(4) Before adopting or amending a Code, the Minister must consult with the service providers, retailers or exempt persons proposed to be made subject to the Code.(5) The Minister may revoke a Code by publishing a notice of revocation in the Gazette. A revocation takes effect on the day the notice is published in the Gazette or on such later day as is specified in the notice.(6) Any consultation undertaken by the Minister before the commencement of this clause, in respect of a Code adopted on or after the commencement of this clause, is taken to be consultation for the purposes of subclause (4) in respect of that Code.cll 73: Ins 2013 (165), Sch 1 [43].
74 Code requirements and compliance
(1) A Social Programs for Energy Code:(a) may specify that particular services of service providers, retailers or exempt persons are to be provided to particular classes of persons free of charge, at specified charges or subject to specified discounts or rebates, and(b) may require specified classes of customers to be supplied with electricity at discounted charges or to be given rebates on the charges paid by them for the supply of electricity, and(c) may require a retailer or exempt person to establish and maintain facilities to ensure that Government payments that are provided to finance the supply of electricity at discounted charges are applied in accordance with the Code, and(d) may require a retailer or exempt person to establish and maintain trust accounts in which Government payments that are provided to finance the supply of electricity at discounted charges are to be held pending their application in accordance with the Code, and(e) may require a service provider, retailer or exempt person to furnish the Minister with periodic reports as to compliance with the Code, and(f) may require a service provider, retailer or exempt person to establish and maintain accounting procedures to enable such reports to be prepared, and(g) must specify the amount or a methodology by which the amount may be assessed by the Minister as the estimated cost to a service provider or retailer or exempt person of efficiently complying with the Code, and(h) must specify arrangements for the payment to the service provider, retailer or exempt person of an amount equivalent to the estimated efficient costs assessed by the Minister, as referred to in paragraph (g), or, if the service provider or retailer or exempt person disputes that assessment, the costs assessed on a re-assessment under this Part.(2) If a Code adopted under this Part applies to a service provider, it is a condition of the service provider’s licence that the service provider must take the action required by the Code in accordance with the Code.(3) A service provider, retailer or exempt person must not fail to comply with a Social Programs for Energy Code that is applicable to the service provider, retailer or exempt person.Maximum penalty: 100 penalty units (in the case of a corporation) or 25 penalty units (in any other case).cll 74: Ins 2013 (165), Sch 1 [43].
75 Re-assessment of costs of compliance with direction
(1) Any dispute between a service provider, retailer or exempt person and the Minister (being a dispute as to the cost to the service provider, retailer or exempt person of complying with the Social Programs for Energy Code) is to be referred to a committee constituted by one or more assessors.(2) The assessor or assessors to constitute such a committee are to be suitably qualified persons appointed by agreement between the service provider, retailer or exempt person and the Minister.(3) In determining a dispute that has been referred to it under this clause, a committee:(a) must consider any representations made by the parties to the dispute, and(b) must determine, on the basis of those representations and any other information available to it, the amount or a methodology by which the amount may be assessed as the efficient cost to the service provider, retailer or exempt person of complying with the direction to which the dispute relates.(4) A committee may conduct proceedings under this clause in such manner as it considers appropriate.(5) The committee’s decision on a dispute binds the parties to the dispute, but does not prevent the direction to which it relates from being withdrawn.(6) The committee’s decision as to the efficient costs is taken to be the amount of or the methodology for assessing costs for the purposes of the Minister’s direction and the direction is accordingly varied from the date specified in the decision.(7) A committee may determine 2 or more disputes in the same proceedings if it considers that it is appropriate to do so.cl 75 (previously cl 76): Am 2013 (165), Sch 1 [44] [45]. Renumbered 2013 (165), Sch 1 [46].
76 Costs of proceedings
(1) The costs of any proceedings under clause 75, including the costs of the committee, are to be borne by the parties in equal proportions unless the committee determines otherwise.(2) The committee may determine the proportion of the costs to be borne by each of the parties, having regard to the merits of the case, and, in that event, the costs are to be borne by the parties according to the committee’s determination.cll 76: Renumbered 2013 (165), Sch 1 [46].
77 Market operations rules
Market operations rules may be made for or with respect to the administrative arrangements for delivery of social programs for energy.cll 77 (previously cll 77, 78): Renumbered 2013 (165), Sch 1 [46].
78 Enforceable undertakings
(1) The Minister may accept a written undertaking given by a service provider, retailer or exempt person in connection with compliance with a Social Programs for Energy Code.(2) The service provider, retailer or exempt person may, with the consent of the Minister, withdraw or vary the undertaking at any time.(3) If the Minister considers that a service provider, retailer or exempt person that gave the undertaking has breached any of its terms, the Minister may apply to the Local Court for an order under this clause.(4) If the Local Court is satisfied that the service provider, retailer or exempt person has breached a term of the undertaking, the Court may make all or any of the following orders:(a) an order directing the service provider, retailer or exempt person to comply with the undertaking,(b) an order directing the service provider, retailer or exempt person to pay to the State an amount up to the amount of any financial benefit that the person has obtained directly or indirectly and that is reasonably attributable to the breach,(c) any order that the Court considers appropriate directing the person to compensate any other person who has suffered loss or damage as a result of the breach,(d) any other order that the Court considers appropriate.cll 78: Ins 2013 (165), Sch 1 [47].
79 Auditing of Code compliance
(1) The Minister may at any time conduct or require an audit to be conducted to determine whether a service provider, retailer or exempt person has complied with a Social Programs for Energy Code.(2) The Minister may require the audit to be conducted by:(a) a person nominated by the Minister, or(b) a person chosen by the service provider, retailer or exempt person from a panel of persons nominated by the Minister, or(c) a person nominated by the service provider, retailer or exempt person and approved by the Minister.(3) The reasonable costs of an audit of a service provider, retailer or exempt person under this clause are payable by the service provider, retailer or exempt person.(4) A person must not impersonate an auditor who is required to carry out an audit under this clause.Maximum penalty: 250 penalty units (in the case of a corporation) and 100 penalty units (in any other case).cll 79: Ins 2013 (165), Sch 1 [47].
Part 8 Energy savings scheme
pt 8 (previously Part 9A): Ins 2009 (266), Sch 1 [2]. Renumbered 2013 (165), Sch 1 [48].
Division 1 Interpretation
pt 8, div 1 (previously Part 9A, Div 1): Ins 2009 (266), Sch 1 [2]. Renumbered 2013 (165), Sch 1 [48].
80 Definitions
(1) In this Part:approved auditor means a person required to conduct an audit under Division 8.corresponding scheme means a scheme or arrangement with similar objectives to the energy savings scheme.(2) Expressions used in this Part have the same meaning as they have in Part 9 of the Act.cl 80 (previously cl 78A): Ins 2009 (266), Sch 1 [2]. Renumbered 2013 (165), Sch 1 [50].
81 Direct suppliers of electricity
(1) For the purposes of the definition of direct supplier of electricity in section 101 (2) of the Act, the following electricity generators are prescribed as direct suppliers of electricity:(a) Macquarie Generation,(b) Delta Electricity.(2) For the purposes of section 107 (2) (b) of the Act, the following are liable acquisitions:(a) the supply of electricity by Macquarie Generation to the Tomago Aluminium Company Pty Ltd,(b) the supply of electricity by Delta Electricity to BlueScope Steel (AIS) Pty Ltd or BHP Billion Limited under an electricity supply arrangement.cl 81 (previously cl 78B): Ins 2009 (266), Sch 1 [2]. Am 2013 (165), Sch 1 [49]. Renumbered 2013 (165), Sch 1 [50].
Division 2 CPI adjustment to base penalty rates
pt 8, div 2 (previously Part 9A, Div 2): Ins 2009 (266), Sch 1 [2]. Renumbered 2013 (165), Sch 1 [48].
82 CPI adjustment to base penalty rates
(1) For the purposes of section 113 (5) of the Act, the base penalty rate for each year is to be adjusted in accordance with the following formula:%20AND%20(No%3D0468)%20AND%20(Year%3D2001)%20AND%20(%22Historical%20Document%22%3D0))/g3.gif)
where:P is the amount of the adjusted base penalty rate for a year.A is the base penalty rate for the year for which the adjustment is being made as specified in Schedule 5A to the Act.B is the consumer price index number for the September quarter immediately preceding the year for which the adjustment is being made.C is the consumer price index number for the March quarter of 2009.(2) The first year in which the base penalty rate is to be adjusted is 2010.cl 82 (previously cl 78C): Ins 2009 (266), Sch 1 [2]. Renumbered 2013 (165), Sch 1 [50].
Division 3 Assessment of compliance of scheme participants
pt 8, div 3 (previously Part 9A, Div 3): Ins 2009 (266), Sch 1 [2]. Renumbered 2013 (165), Sch 1 [48].
83 Self-assessment by scheme participants
(1) The assessment of the liability of a scheme participant for an energy savings shortfall penalty (if any) that is provided by the scheme participant in an energy savings statement is taken, unless another assessment is or has been made by the Scheme Regulator, to be the liability of the scheme participant for an energy savings shortfall penalty for the year concerned.(2) The assessment has effect as if it were a notice of assessment issued by the Scheme Regulator and given to the participant on the day on which the assessment is taken to have been made.(3) The assessment is taken to have been made on 1 March in the year after the year to which the statement relates, or on the day on which the energy savings statement is lodged, whichever is the later.cll 83–90 (previously cll 78D–78K): Ins 2009 (266), Sch 1 [2]. Renumbered 2013 (165), Sch 1 [50].
84 Default assessments
(1) The Scheme Regulator may make an assessment of the liability of a scheme participant for an energy savings shortfall penalty for a year if the participant fails to lodge a energy savings statement for the year in accordance with the Act.(2) In making an assessment under this section, the Scheme Regulator may:(a) base its assessment on its best estimate of the participant’s liable acquisitions, verified by the Market Operator where possible, and(b) take into account any other matters the Scheme Regulator considers appropriate.cll 83–90 (previously cll 78D–78K): Ins 2009 (266), Sch 1 [2]. Renumbered 2013 (165), Sch 1 [50].
85 Amendment of assessments
(1) The Scheme Regulator may at any time amend any assessment of the liability of a scheme participant for an energy savings shortfall penalty for a year by making any alterations or additions that the Scheme Regulator thinks necessary, whether or not an energy savings shortfall penalty has been paid for the year.(2) If the Scheme Regulator is of the opinion that a scheme participant’s liability for an energy savings shortfall penalty has been incorrectly assessed, the Scheme Regulator may amend the assessment by making any alterations or additions that the Scheme Regulator thinks necessary to correct the assessment.(3) An assessment may be amended no later than one year after the date on which the assessment is made.(4) The one-year time limit does not apply to:(a) an amendment that, in the opinion of the Scheme Regulator, is required because of fraud or the provision of false or misleading information by a scheme participant, or(b) an amendment that is made on the application of the scheme participant concerned.cll 83–90 (previously cll 78D–78K): Ins 2009 (266), Sch 1 [2]. Renumbered 2013 (165), Sch 1 [50].
86 Application for amended assessment
(1) A scheme participant may apply to the Scheme Regulator for an amendment to an assessment of its liability for an energy savings shortfall penalty.(2) An application may be made no later than one year after the day on which the assessment is made.(3) An application by a scheme participant must be in the form approved by the Scheme Regulator and state the grounds on which the amendment is sought.(4) A scheme participant may, in an application under this clause, elect to surrender additional energy savings certificates for the purposes of the amended assessment.(5) The election is to contain details of the energy savings certificates proposed to be surrendered.(6) The Scheme Regulator may deal with any such election as if it had accompanied the energy savings statement to which the assessment relates.cll 83–90 (previously cll 78D–78K): Ins 2009 (266), Sch 1 [2]. Renumbered 2013 (165), Sch 1 [50].
87 Changes to liability as result of amended assessment
(1) An energy savings shortfall penalty payable as a result of an amendment to an assessment is taken to be payable on the date that is 7 days after the date notice of the amended assessment is given to the scheme participant by the Scheme Regulator, or on the date an energy savings shortfall would have been payable under the original assessment, whichever is the later.(2) The Scheme Regulator may extend the period for payment of any energy savings shortfall penalty that becomes payable as a result of an amendment to an assessment.(3) A scheme participant whose liability for an energy savings shortfall penalty is reduced as a result of an amended assessment is entitled to a refund of any excess energy savings shortfall penalty paid under the previous assessment.(4) If an assessment has been amended in any particular, the Scheme Regulator may, within one year after the day on which an energy savings shortfall penalty became payable under the amended assessment, make any further amendment of the assessment that, in the Scheme Regulator’s opinion, is necessary to effect any just reduction in the scheme participant’s liability under the assessment.cll 83–90 (previously cll 78D–78K): Ins 2009 (266), Sch 1 [2]. Renumbered 2013 (165), Sch 1 [50].
88 Appeals
Nothing in this Division prevents the amendment of an assessment of the liability of a scheme participant for an energy savings shortfall penalty to give effect to a decision on any review or appeal under the Act.cll 83–90 (previously cll 78D–78K): Ins 2009 (266), Sch 1 [2]. Renumbered 2013 (165), Sch 1 [50].
89 Notice of assessments
As soon as practicable after an assessment of the liability of a scheme participant for an energy savings shortfall penalty is made or amended under this Division, the Scheme Regulator must give written notice of the assessment or amended assessment to the participant.cll 83–90 (previously cll 78D–78K): Ins 2009 (266), Sch 1 [2]. Renumbered 2013 (165), Sch 1 [50].
90 Maximum energy savings shortfall that may be carried forward
For the purposes of section 116 (3) of the Act, the maximum amount of an energy savings shortfall that may be carried forward to the year 2010 by a scheme participant is 50%.cll 83–90 (previously cll 78D–78K): Ins 2009 (266), Sch 1 [2]. Renumbered 2013 (165), Sch 1 [50].
Division 4 Accreditation of certificate providers
pt 8, div 4 (previously Part 9A, Div 4): Ins 2009 (266), Sch 1 [2]. Renumbered 2013 (165), Sch 1 [48].
91 Eligibility for accreditation
(1) A person is eligible for accreditation as an energy savings certificate provider in respect of an activity if:(a) the activity is a recognised energy saving activity under the scheme rules and the person is eligible for accreditation in respect of the activity under the scheme rules, and(b) the person has record keeping arrangements with respect to the activity approved by the Scheme Administrator or (in the case of a proposed activity) the Scheme Administrator is satisfied that the person will, when the activity is carried out, have appropriate record keeping arrangements in respect of that activity, and(c) in the case of a proposed activity—the Scheme Administrator is satisfied that the proposal will be undertaken substantially as described in the person’s application for accreditation.(2) A reference in this Division to an activity includes a reference to an existing or proposed activity.cll 91–96 (previously cll 78L–78Q): Ins 2009 (266), Sch 1 [2]. Renumbered 2013 (165), Sch 1 [50].
92 Application for accreditation
An application for accreditation as an energy savings certificate provider in respect of an activity:(a) is to be made in the form and manner approved by the Scheme Administrator, and(b) is to be accompanied by such information relating to the activity as the Scheme Administrator requires, and(c) is to be accompanied by an application fee of $500.Note—Section 136 (5) of the Act allows the Scheme Administrator to charge a fee (in addition to the application fee) in respect of the investigation and determination of an application for accreditation.cll 91–96 (previously cll 78L–78Q): Ins 2009 (266), Sch 1 [2]. Renumbered 2013 (165), Sch 1 [50].
93 Benefits under other schemes
The Scheme Administrator may require a person who applies for accreditation to give to the Scheme Administrator an undertaking, in such terms as the Scheme Administrator may require, not to claim any benefit under a corresponding scheme if such an action would result in a benefit being obtained under both that scheme and the energy savings scheme in respect of the same energy savings.cll 91–96 (previously cll 78L–78Q): Ins 2009 (266), Sch 1 [2]. Renumbered 2013 (165), Sch 1 [50].
94 Grounds for refusal of application for accreditation
(1) The Scheme Administrator may refuse an application for accreditation as an energy savings certificate provider in respect of an activity if:(a) the Scheme Administrator is not satisfied that the applicant is eligible for accreditation as an energy savings certificate provider in respect of the activity concerned, or(b) the application for accreditation is not duly made (including if it is not accompanied by any required information or the appropriate fee), or(c) the applicant fails to give the Scheme Administrator an undertaking required to be given in connection with the application under this Division in terms satisfactory to the Scheme Administrator.(2) If the Scheme Administrator refuses an application for accreditation as an energy savings certificate provider, the Scheme Administrator must advise the applicant in writing of the grounds on which the application was refused.cll 91–96 (previously cll 78L–78Q): Ins 2009 (266), Sch 1 [2]. Renumbered 2013 (165), Sch 1 [50].
95 Suspension or cancellation of accreditation
(1) The Scheme Administrator may suspend or cancel the accreditation of a person as an energy savings certificate provider in respect of an activity on any of the following grounds:(a) the Scheme Administrator is satisfied that the person has ceased to be eligible for accreditation as an energy savings certificate provider in respect of the activity,(b) the person has requested the suspension or cancellation,(c) the Scheme Administrator is satisfied that the person has contravened a provision of the Act, the regulations, the scheme rules or a condition to which the accreditation is subject,(d) the person has become bankrupt, applied to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounded with his or her creditors or made an assignment of his or her remuneration for their benefit,(e) the person is a corporation that is the subject of a winding up order or for which a controller or administrator has been appointed.(2) If the Scheme Administrator suspends or cancels the accreditation of a person, the Scheme Administrator is required to notify the person in writing of the suspension or cancellation and the grounds on which the accreditation is suspended or cancelled.(3) A suspension or cancellation takes effect when notice of the suspension or cancellation is given to the person by the Scheme Administrator, or on such later date as may be specified by the Scheme Administrator in the notice.cll 91–96 (previously cll 78L–78Q): Ins 2009 (266), Sch 1 [2]. Renumbered 2013 (165), Sch 1 [50].
96 Transfer of accreditation
An application for transfer of accreditation as an energy savings certificate provider:(a) is to be made in the form and manner approved by the Scheme Administrator, and(b) is to be accompanied by such information relating to the activity as the Scheme Administrator requires, and(c) is to be accompanied by an application fee of $500.cll 91–96 (previously cll 78L–78Q): Ins 2009 (266), Sch 1 [2]. Renumbered 2013 (165), Sch 1 [50].
Division 5 Prescribed conditions of accreditation
pt 8, div 5 (previously Part 9A, Div 5): Ins 2009 (266), Sch 1 [2]. Renumbered 2013 (165), Sch 1 [48].
97 Conditions of accreditation
For the purposes of section 138 (1) (a) of the Act, it is a condition of the accreditation of a person as an energy savings certificate provider that the person does not contravene any of the provisions of this Division.cll 97–100 (previously cll 78R–78U): Ins 2009 (266), Sch 1 [2]. Renumbered 2013 (165), Sch 1 [50].
98 Claiming benefits under other schemes
An accredited certificate provider must not contravene any undertaking, of a kind referred to in clause 93, given to the Scheme Administrator in connection with the person’s application for accreditation.cll 97–100 (previously cll 78R–78U): Ins 2009 (266), Sch 1 [2]. Renumbered 2013 (165), Sch 1 [50].
99 Record keeping
(1) An accredited certificate provider in respect of a recognised energy saving activity must keep a record of the following:(a) the location in which the activity occurred,(b) the energy savings (calculated in accordance with the scheme rules) arising from that activity,(c) the methodology, data and assumptions used to calculate those energy savings.(2) An accredited certificate provider must keep such other records as the Scheme Administrator, by notice in writing to the accredited certificate provider, requires the accredited certificate provider to keep.(3) A record required to be kept by a person by or under this clause must be retained by the person for at least 6 years after the record is made.(4) Records are to be kept in a form and manner approved by the Scheme Administrator.cll 97–100 (previously cll 78R–78U): Ins 2009 (266), Sch 1 [2]. Renumbered 2013 (165), Sch 1 [50].
100 Co-operation with audits
(1) An accredited certificate provider must provide such information and assistance as is necessary to comply with any audit conducted under Division 8.(2) Without limiting subclause (1), an accredited certificate provider must provide such access to premises as is necessary to comply with any schedule or timetable of audits agreed to by the accredited certificate provider (whether before or after accreditation).cll 97–100 (previously cll 78R–78U): Ins 2009 (266), Sch 1 [2]. Renumbered 2013 (165), Sch 1 [50].
Division 6 Imposition of conditions by Scheme Administrator
pt 8, div 6 (previously Part 9A, Div 6): Ins 2009 (266), Sch 1 [2]. Renumbered 2013 (165), Sch 1 [48].
101 Imposition of conditions by Scheme Administrator
(1) If the Scheme Administrator intends to impose a condition on the accreditation of a person as an energy savings certificate provider under section 138 (1) (b) of the Act, either at the time of accreditation or any time during the period in which the accreditation remains in force, the Scheme Administrator must give notice in writing of that fact to the person.(2) The condition takes effect on the date on which the notice is given to the person, or a later date specified in the notice, subject to subclause (3).(3) In the case of a condition to be imposed at the time of accreditation, the condition does not take effect until the date on which the person is accredited as an energy savings certificate provider.(4) The Scheme Administrator may, at any time by notice in writing given to a person, revoke or vary a condition imposed on the accreditation of the person by the Scheme Administrator.(5) If the Scheme Administrator imposes or varies a condition of accreditation of a person, the Scheme Administrator must advise the person in writing of the reasons for the decision to impose or vary the condition.cll 101–103 (previously cll 78V–78X): Ins 2009 (266), Sch 1 [2]. Renumbered 2013 (165), Sch 1 [50].
102 Financial assurances
(1) This clause applies if the Scheme Administrator imposes a condition on the accreditation of a person as an energy savings certificate provider requiring the person to provide a financial assurance to the Scheme Administrator to secure or guarantee the person’s compliance with any order that may be made against the person under section 142 of the Act.(2) The amount of any financial assurance required by the Scheme Administrator is to be determined by the Scheme Administrator having regard to the following:(a) the activities in respect of which the person is accredited or to be accredited,(b) the number of energy savings certificates that the person has created or is likely to create,(c) the frequency of audits conducted or to be conducted in respect of the person,(d) any other matters the Scheme Administrator considers relevant.(3) A financial assurance is to be in such form as the Scheme Administrator considers appropriate (such as a bank guarantee or bond).(4) A financial assurance provided to the Scheme Administrator may be claimed or realised by the Scheme Administrator only if:(a) an order is made against the person under section 142 of the Act, and(b) the person who gave the financial assurance fails to comply with the order.(5) The Scheme Administrator must give to the person who provided the financial assurance written notice of its intention to make a claim on or realise the financial assurance (or any part of it) at least 21 days before doing so.(6) The maximum amount that the Scheme Administrator may claim or recover under the financial assurance is the compliance cost in respect of the person’s failure to comply with the order under section 142 of the Act.(7) For the purposes of this clause, the compliance cost in respect of a person’s failure to comply with an order under section 142 of the Act is to be determined by the Scheme Administrator by multiplying the number of certificates that the person failed to surrender in compliance with the order by the scheme penalty rate for the year in which the financial assurance is claimed on or realised.cll 101–103 (previously cll 78V–78X): Ins 2009 (266), Sch 1 [2]. Renumbered 2013 (165), Sch 1 [50].
103 Application for variation or revocation of conditions of accreditation
An application for variation or revocation of a condition of accreditation of a person as an energy savings certificate provider imposed by the Scheme Administrator:(a) is to be made in the form and manner approved by the Scheme Administrator, and(b) is to be accompanied by such information relating to the activity as the Scheme Administrator requires.Note—Section 139 (3) of the Act allows the Scheme Administrator to charge a fee in respect of the investigation and determination of an application for variation or revocation of a condition of accreditation.cll 101–103 (previously cll 78V–78X): Ins 2009 (266), Sch 1 [2]. Renumbered 2013 (165), Sch 1 [50].
Division 7 Energy savings certificates
pt 8, div 7 (previously Part 9A, Div 7): Ins 2009 (266), Sch 1 [2]. Renumbered 2013 (165), Sch 1 [48].
104 Registration of creation of certificates
(1) An application for registration of the creation of an energy savings certificate is to be made to the Scheme Administrator in the form and manner approved by the Scheme Administrator.(2) The application is to be accompanied by a fee of $0.70 for each certificate created.(3) The Scheme Administrator may refuse an application for registration of the creation of an energy savings certificate on any of the following grounds:(a) the applicant is not an accredited certificate provider or the accreditation of the person as an energy savings certificate provider is suspended at the time of application,(b) the application for registration was not duly made (including if it is not accompanied by the appropriate fee),(c) the Scheme Administrator is not satisfied that the applicant was entitled to create an energy savings certificate in respect of the activity,(d) the Scheme Administrator is of the opinion that the accredited certificate provider who created the energy savings certificate has contravened a provision of the Act, the regulations, the scheme rules or the conditions of the accredited certificate provider’s accreditation.(4) If the Scheme Administrator refuses an application for registration of the creation of an energy savings certificate, the Scheme Administrator must notify the applicant in writing of the determination and the reasons for the determination.cll 104–107 (previously cll 78Y–78ZB): Ins 2009 (266), Sch 1 [2]. Renumbered 2013 (165), Sch 1 [50].
105 Form of energy savings certificates
(1) Energy savings certificates are to be created in a form approved by the Scheme Administrator.(2) Each energy savings certificate is to include the following:(a) a statement of the activity in respect of which the energy savings certificate is created, including any information relating to that activity that the Scheme Administrator, by notice in writing to an accredited certificate provider, requires to be included in the certificate,(b) the year in which the energy savings arising from the activity occurred,(c) the name of the person who created the certificate.cll 104–107 (previously cll 78Y–78ZB): Ins 2009 (266), Sch 1 [2]. Renumbered 2013 (165), Sch 1 [50].
106 Order requiring surrender of energy savings certificates
(1) This clause applies if an order is made or is proposed to be made under section 142 of the Act against a person who has been found guilty of an offence against section 138 (3) of the Act, being an offence that arose as a result of the person contravening a condition referred to in clause 98.(2) For the purposes of section 142 (4) of the Act, the number of energy savings certificates to be surrendered under the order is the number that is equivalent to the number of energy savings certificates that, in the opinion of the Scheme Administrator, were created in respect of energy savings for which a benefit was obtained under a corresponding scheme.cll 104–107 (previously cll 78Y–78ZB): Ins 2009 (266), Sch 1 [2]. Renumbered 2013 (165), Sch 1 [50].
107 Registration of transfer of certificates
(1) An application for registration of the transfer of an energy savings certificate is to be made to the Scheme Administrator in the form and manner approved by the Scheme Administrator.(2) The Scheme Administrator may refuse an application for registration of the transfer of an energy savings certificate on any of the following grounds:(a) the application for registration is not duly made,(b) the Scheme Administrator is of the opinion that the proposed transfer of the energy savings certificate contravenes the Act, the regulations or the scheme rules.(3) If the Scheme Administrator refuses an application for registration of the transfer of an energy savings certificate, the Scheme Administrator must notify the applicant in writing of the reasons for the determination.cll 104–107 (previously cll 78Y–78ZB): Ins 2009 (266), Sch 1 [2]. Renumbered 2013 (165), Sch 1 [50].
Division 8 Audits
pt 8, div 8 (previously Part 9A, Div 8): Ins 2009 (266), Sch 1 [2]. Renumbered 2013 (165), Sch 1 [48].
108 Audits of scheme participants
(1) The Scheme Regulator may at any time conduct or require audits to be conducted of a scheme participant in relation to the scheme participant’s compliance with the energy savings scheme.(2) An audit may be conducted for the purpose of:(a) substantiating information provided to the Scheme Regulator, or(b) determining whether the scheme participant has complied with the Act, the regulations or the scheme rules.(3) In the case of an audit required by the Scheme Regulator, the Scheme Regulator may require the audit to be conducted by:(a) a person nominated by the Scheme Regulator, or(b) a person chosen by the scheme participant from a panel of persons nominated by the Scheme Regulator, or(c) a person nominated by the scheme participant and approved by the Scheme Regulator.(4) An approved auditor is to conduct an audit in accordance with the directions (if any) of the Scheme Regulator.cll 108–110 (previously cll 78ZC–78ZE): Ins 2009 (266), Sch 1 [2]. Renumbered 2013 (165), Sch 1 [50].
109 Audits of accredited certificate providers
(1) The Scheme Administrator may at any time conduct or require audits to be conducted of accredited certificate providers in relation to the following matters:(a) the creation of energy savings certificates,(b) eligibility for accreditation,(c) compliance with any conditions of accreditation.(2) An audit may be conducted for the purpose of:(a) substantiating information provided to the Scheme Administrator, or(b) determining whether the provider has complied with the Act, the regulations, the scheme rules or the conditions of the provider’s accreditation.(3) In the case of an audit required by the Scheme Administrator, the Scheme Administrator may require the audit to be conducted by:(a) a person nominated by the Scheme Administrator, or(b) a person chosen by the accredited certificate provider from a panel of persons nominated by the Scheme Administrator, or(c) a person nominated by the accredited certificate provider and approved by the Scheme Administrator.(4) An approved auditor is to conduct an audit in accordance with the directions (if any) of the Scheme Administrator.cll 108–110 (previously cll 78ZC–78ZE): Ins 2009 (266), Sch 1 [2]. Renumbered 2013 (165), Sch 1 [50].
110 Impersonating approved auditor
A person must not impersonate an approved auditor.Maximum penalty:(a) in the case of a corporation—250 penalty units,(b) in the case of an individual—100 penalty units.cll 108–110 (previously cll 78ZC–78ZE): Ins 2009 (266), Sch 1 [2]. Renumbered 2013 (165), Sch 1 [50].
Division 9 Registers
pt 8, div 9 (previously Part 9A, Div 9): Ins 2009 (266), Sch 1 [2]. Renumbered 2013 (165), Sch 1 [48].
111 Register of accredited certificate providers
(1) The register of accredited certificate providers is to include the following information (in addition to the information specified in section 162 of the Act):(a) the activity or activities in respect of which the accredited certificate provider is accredited as an energy savings certificate provider,(b) the total number of energy savings certificates created by the accredited certificate provider in respect of each of those activities and registered in the register of energy savings certificates in the previous financial year,(c) the States or Territories in which those activities took place,(d) such other information relating to the person’s accreditation as the Scheme Administrator considers appropriate.(2) The register of accredited certificate providers is to include the following information in relation to a person whose accreditation as an energy savings certificate provider is suspended or cancelled:(a) the name of the person,(b) the reason or reasons why the accreditation was suspended or cancelled,(c) the date on which the accreditation was suspended or cancelled and, in the case of a suspension, the period of the suspension,(d) such other information relating to the person as the Scheme Administrator considers appropriate.(3) The information required to be included in the register by this clause is to be made available to the public under the Act (in addition to the information referred to in section 162 (1) (a) of the Act).cl 111 (previously cl 78ZF): Ins 2009 (266), Sch 1 [2]. Renumbered 2013 (165), Sch 1 [50].
Division 10 Miscellaneous
pt 8, div 10 (previously Part 9A, Div 10): Ins 2009 (266), Sch 1 [2]. Renumbered 2013 (165), Sch 1 [48].
112 Decisions administratively reviewable by Civil and Administrative Tribunal
For the purposes of section 171 (2) (d) of the Act, the following decisions are prescribed:(a) a decision of the Scheme Administrator to impose or vary a condition of the accreditation of an accredited certificate provider,(b) a decision of the Scheme Administrator to make a claim on or realise any financial assurance provided by an accredited certificate provider.Note—This clause allows the decisions referred to above to be administratively reviewed by the Civil and Administrative Tribunal.cl 112 (previously cl 78ZG): Ins 2009 (266), Sch 1 [2]. Renumbered 2013 (165), Sch 1 [50]. Am 2013 No 95, Sch 2.53 [2].
Part 9 Accreditation of providers of contestable services
pt 9 (previously Part 10): Renumbered 2013 (165), Sch 1 [51].
Division 1 Persons requiring accreditation
113 Persons to be accredited for the provision of services: section 31
For the purposes of section 31 of the Act, all contestable services are prescribed.cl 113 (previously cl 79): Renumbered 2013 (165), Sch 1 [50].
Division 2 Accreditation procedures
114 Application for accreditation
Any person may apply to an accrediting agency for accreditation to provide contestable services.cll 114–119 (previously cll 80–85): Renumbered 2013 (165), Sch 1 [50].
115 Grant of accreditation
An accrediting agency must not accredit a person to provide contestable services unless the accrediting agency is satisfied that the person is competent to provide the relevant contestable service, having regard to the applicable provisions of its accreditation scheme relating to the accreditation of persons to provide the service.cll 114–119 (previously cll 80–85): Renumbered 2013 (165), Sch 1 [50].
116 Giving of undertakings
An accrediting agency may require a person to give undertakings of the following kinds before the accrediting agency will accredit the person:(a) to comply with specified procedures and systems of service providers for co-ordination of the contestable service provided,(b) to comply with the directions of service providers in relation to work on or near service providers’ distribution systems,(c) to indemnify service providers against any loss or damage incurred as a result of any contestable service provided by the accredited person,(d) to maintain a specified level of insurance at all times while accredited.cll 114–119 (previously cll 80–85): Renumbered 2013 (165), Sch 1 [50].
117 Rating of accredited persons
(1) An accrediting agency may assign a rating to an accredited person on the basis of the accrediting agency’s assessment of that person’s work.(2) That rating is to be related to:(a) the level of supervision required of the person providing the contestable service, and(b) the amount of inspection required of the provision of the contestable service by that accredited person, and(c) any other factors that the accrediting agency may determine.cll 114–119 (previously cll 80–85): Renumbered 2013 (165), Sch 1 [50].
118 Availability of lists of accredited persons
(1) Each accrediting agency must make available to the public a list of all persons who are accredited to provide a particular contestable service.(2) The list must contain the names and contact details of, and any rating assigned to, such persons.(3) The list must be kept up-to-date.cll 114–119 (previously cll 80–85): Renumbered 2013 (165), Sch 1 [50].
119 Suspension of accreditation
(1) An accrediting agency may suspend the accreditation of a person who is accredited to provide contestable services at any time on the grounds of safety. A suspension has immediate effect.(2) The suspension continues in force until either:(a) the person’s accreditation is cancelled in accordance with clause 120, or(b) the suspension is lifted by the accrediting agency.cll 114–119 (previously cll 80–85): Renumbered 2013 (165), Sch 1 [50].
120 Cancellation of accreditation
(1) An accrediting agency may cancel the accreditation of a person who is accredited to provide contestable services if the accrediting agency is satisfied that:(a) the person is no longer competent to provide the contestable service for which the person is accredited (having regard to the results of any inspection by the accrediting agency or any audit of the accredited person’s performance), or(b) the person has been convicted of an offence against the Act or the Electricity (Consumer Safety) Act 2004 or any regulations under those Acts, or(c) the person was accredited on the basis of false or misleading information or a failure to disclose or provide required information, or(d) the person has breached any undertaking given by the person to the accrediting agency, or(e) it is necessary to do so on any other grounds relating to the safety of the work carried out or to public safety.(2) Before cancelling a person’s accreditation, the accrediting agency:(a) must cause written notice of the proposed cancellation to be given to the person, and(b) must give the person a reasonable opportunity to make representations to the accrediting agency in relation to the proposed cancellation, and(c) must have regard to any representations so made.(3) If, after having regard to any representations made by the person, the accrediting agency decides to proceed with the proposed cancellation, the accrediting agency must give to the person a written notice:(a) stating that the accreditation is cancelled, and(b) giving reasons for the cancellation, and(c) stating the date from which the cancellation takes effect.(4) The cancellation takes effect on the date specified in that notice.cl 120 (previously cl 86): Am 2004 No 4, Sch 4.5 [6]. Renumbered 2013 (165), Sch 1 [50].
Division 3 Preparation and approval of accreditation schemes
121 Preparation of accreditation schemes by service providers
(1) A service provider must prepare an accreditation scheme for the accreditation, by the service provider, of persons who may provide contestable services.(2) An accreditation scheme must comply with the requirements of clauses 123, 124 and 125.(3) The service provider:(a) must publish a notice in a newspaper circulating generally in the service provider’s distribution district stating where the accreditation scheme can be inspected free of charge, and(b) must make the accreditation scheme available to the public for inspection in the manner described in the notice.cll 121–125 (previously cll 87–91): Renumbered 2013 (165), Sch 1 [50].
122 Ministerially recognised accreditation schemes and accrediting agencies
(1) The Minister may, by order published in the Gazette, declare that:(a) a specified scheme is recognised as an accreditation scheme, and(b) a specified person or body (other than a service provider) is recognised as an accrediting agency in relation to that scheme.(2) A scheme may not be recognised as an accreditation scheme unless it complies with the requirements of clauses 123, 124 and 125.(3) A person or body may not be recognised as an accrediting agency in relation to an accreditation scheme unless the person or body satisfies the Minister that, having regard to the provisions of this Part, the person or body has the resources and expertise to prepare and administer that scheme.(4) An accrediting agency that is recognised in relation to an accreditation scheme:(a) must publish a notice in a newspaper circulating generally in this State stating where the scheme can be inspected free of charge, and(b) must make the scheme available to the public for inspection in the manner described in the notice.cll 121–125 (previously cll 87–91): Renumbered 2013 (165), Sch 1 [50].
123 General requirements
An accreditation scheme must include the following matters:(a) the qualifications, experience and training required for accreditation, including the requirements of the accrediting agency in relation to distribution systems,(b) the means for ensuring adequate technical performance by an accredited person in providing the relevant services,(c) any commercial prudential requirements (including insurance) required of or in respect of an accredited person,(d) the means by which a person applying for accreditation can give evidence of his or her qualifications, experience and training and any other necessary matter,(e) payments required for application for, or renewal of, accreditation,(f) any undertakings required to be made by an accredited person,(g) the procedure for inspection or audit of an accredited person by the accrediting agency,(h) the procedure for assessment by the accrediting agency of the work of an accredited person,(i) a statement as to the extent to which the scheme adopts a scheme of accreditation prepared by some other accrediting agency, as authorised by clause 124 (1),(j) a statement as to the extent to which the scheme is operated jointly with some other accrediting agency, as authorised by clause 124 (2),(k) the policy for consultation with relevant stakeholders (including representative electrical contracting industry bodies) in receiving submissions on the accreditation scheme and reviewing and developing the scheme,(l) such other matters as are required to be included in the scheme by any guidelines in force under clause 125.cll 121–125 (previously cll 87–91): Renumbered 2013 (165), Sch 1 [50].
124 Joint accreditation schemes
(1) An accreditation scheme prepared for the purposes of this Regulation may be prepared:(a) by the accrediting agency preparing its own scheme of accreditation, or(b) in the case of a service provider, by the service provider adopting (whether in whole or in part) a scheme of accreditation prepared by a Ministerially recognised accrediting agency, or(c) in the case of a Ministerially recognised accrediting agency, by the accrediting agency adopting (whether in whole or in part) a scheme of accreditation prepared:(i) by a service provider, or(ii) by some other Ministerially recognised accrediting agency.(2) An accrediting agency’s scheme of accreditation may provide for the scheme to be administered jointly:(a) in the case of a service provider, by the service provider and by one or more Ministerially recognised accrediting agencies, or(b) in the case of a Ministerially recognised accrediting agency:(i) by the agency and by one or more service providers, or(ii) by the agency and by one or more other Ministerially recognised accrediting agencies, or(iii) by the agency, by one or more service providers and by one or more other Ministerially recognised accrediting agencies.(3) If the accreditation scheme prepared for an accrediting agency (the adopting scheme) adopts an accreditation scheme prepared by some other accrediting agency (the adopted scheme), all accreditations under the adopted scheme are taken to be accreditations under the adopting scheme.cll 121–125 (previously cll 87–91): Renumbered 2013 (165), Sch 1 [50].
125 Ministerial guidelines
The Minister may, by order published in the Gazette, establish guidelines with respect to the matters to be included in an accrediting agency’s scheme for the accreditation of persons to provide contestable services.cll 121–125 (previously cll 87–91): Renumbered 2013 (165), Sch 1 [50].
Division 4 Appeals
126 Definitions
In this Division:alternative dispute resolution procedures includes negotiation, conciliation and mediation, but does not include arbitration.appeal means an appeal under clause 128.appellant means a person who makes an appeal.cll 126–131 (previously cll 92–97): Renumbered 2013 (165), Sch 1 [50].
127 Appeal against decisions regarding accreditation
(1) A person may apply to the accrediting agency for a review:(a) of a decision by an accrediting agency to refuse to accredit the person to provide a particular contestable service, or(b) of a decision by an accrediting agency to suspend or cancel the person’s accreditation to provide a particular contestable service, or(c) of a decision by an accrediting agency not to act on a suspension.(2) For the purposes of subclause (1) (c), the failure by an accrediting agency:(a) to cancel a person’s accreditation, orwithin 28 days after it has suspended the person’s accreditation is taken to be a decision by the accrediting agency not to act on the suspension.(b) to lift the suspension of a person’s accreditation,cll 126–131 (previously cll 92–97): Renumbered 2013 (165), Sch 1 [50].
128 Appeals against decisions of service providers
(1) An appeal by a person against the decision of an accrediting agency as to the accreditation of the person to provide a contestable service must be made in accordance with this clause.(2) The appeal:(a) must be in writing, and(b) must be served on the accrediting agency no later than 28 days after the person receives written notice of the decision, and(c) must state the reasons why the appellant considers that the decision should be reviewed.cll 126–131 (previously cll 92–97): Renumbered 2013 (165), Sch 1 [50].
129 Review of decision by accrediting agency
(1) On receiving an appeal, the accrediting agency must review its decision and make a determination under this clause.(2) After reviewing its decision, the accrediting agency:(a) may determine that the decision is to stand, or(b) may determine to vary or revoke the decision.(3) As soon as practicable after it makes its determination, the accrediting agency must give written notice to the appellant:(a) of its determination, together with its reasons for the determination, and(b) if the determination is to vary the decision, of the manner in which the decision is to be varied, and(c) of the rights available to the appellant under this Part, and(d) of the circumstances in which the appellant may become liable for costs under this Part.(4) An accrediting agency that fails to give such a notice within 14 days after the appeal is made is taken to have determined that its decision is to stand.cll 126–131 (previously cll 92–97): Renumbered 2013 (165), Sch 1 [50].
130 Request for alternative dispute resolution
(1) An appellant who is dissatisfied with a determination of an appeal by an accrediting agency may request the appeal be dealt with by way of alternative dispute resolution procedures.(2) The request:(a) must be in writing, and(b) must be served on the accrediting agency no later than 28 days after the appellant received written notice of the determination or (if no such notice is received within 14 days after the appeal was made) within 42 days after the appeal was made, and(c) must state the reasons why the appellant is dissatisfied with the determination by the accrediting agency.(3) As soon as practicable after receiving such a request, the accrediting agency must give written notice to the appellant:(a) of the rights available to the appellant under this Part, and(b) of the circumstances in which the appellant may become liable for costs under this Part.cll 126–131 (previously cll 92–97): Renumbered 2013 (165), Sch 1 [50].
131 Alternative dispute resolution
(1) The accrediting agency must establish an alternative dispute resolution procedure which must:(a) operate independently of the accrediting agency, and(b) be kept separate from the affairs of the accrediting agency, and(c) be convenient for and accessible to the appellant, and(d) operate without cost to the appellant, and(e) allow the appellant to choose whether to be bound by any finding or determination of the facilitator, and(f) allow the facilitator to choose not to deal with the appeal, if the facilitator forms the view that:(i) the appellant has been vexatious in pursuing the appeal, or(ii) the appeal is an abuse of process.(2) The appellant may elect to use the alternative dispute resolution procedure made available by the accrediting agency under subclause (1).(3) If the appellant does not elect to use the alternative dispute resolution procedure made available by the accrediting agency under subclause (1), then:(a) the alternative dispute resolution procedure is to be as agreed by the appellant and the accrediting agency, and(b) the facilitator is to be chosen jointly by the appellant and the accrediting agency, and(c) participation is to be voluntary and the alternative dispute resolution procedure may be terminated at any time by either party or by the facilitator, and(d) the appellant and the accrediting agency are to bear their own costs of participating in the alternative dispute resolution procedure, and(e) the costs of the facilitator are to be borne by the appellant and the accrediting agency in equal proportions.cll 126–131 (previously cll 92–97): Renumbered 2013 (165), Sch 1 [50].
132 Arbitration
(1) An appellant who is dissatisfied with a determination by the accrediting agency of an appeal may refer the appeal to arbitration.(2) Such a referral may not be made until:(a) the time provided for in clause 130 for a request for the appeal to be dealt with by way of alternative dispute resolution procedures has expired, or(b) any alternative dispute resolution procedures commenced under clause 130 have terminated without resolution of the appeal.(3) That referral must:(a) be in writing, and(b) be served on the accrediting agency, and(c) state the reasons why the appellant considers that the accrediting agency’s determination should be reviewed.(4) As soon as practicable after receiving such a referral, the accrediting agency must give written notice to the appellant:(a) of the rights available to the appellant under this Part, and(b) of the circumstances in which the appellant may become liable for costs under this Part.(5) The arbitrator is to be chosen and appointed jointly by the appellant and the accrediting agency or, if an arbitrator has not been appointed within 21 days after the request for arbitration is made, by the Director-General.(6) In deciding an appeal, the arbitrator:(a) must apply any principles determined by the Minister with respect to the determination of appeals, and(b) must have regard to the accrediting agency’s determination of the appeal.(7) The arbitrator must give written notice to the parties:(a) of his or her decision, together with his or her reasons for the decision, and(b) if the decision is to vary the accrediting agency’s determination of the appeal, of the manner in which the determination is to be varied.(8) The arbitrator’s decision on an appeal is final and binding on the parties to the appeal.(9) The Commercial Arbitration Act 2010 applies to any arbitration under this clause, subject to the provisions of this clause.cl 132 (previously cl 98): Am 2009 No 100, Sch 2.2 [1]; 2010 No 61, Sch 2.8. Renumbered 2013 (165), Sch 1 [50].
133 Costs of arbitration
(1) The costs of arbitration are to be borne by the accrediting agency unless the arbitrator determines otherwise.(2) The arbitrator may determine the proportion of the costs to be borne by each of the parties, having regard to the merits of the case and, in that event, the costs are to be borne by the parties according to the arbitrator’s determination.cl 133 (previously cl 99): Renumbered 2013 (165), Sch 1 [50].
Part 10 Tree preservation
pt 10 (previously Part 11): Renumbered 2013 (165), Sch 1 [51].
134 Object and application of Part
(1) The object of this Part is to regulate the removal and trimming of trees by service providers so as to minimise damage to or destruction of trees growing under or near powerlines.(2) This Part applies only to the extent to which a service provider may lawfully remove or trim trees apart from this Part (which it may do, for example, on behalf of a council) and does not itself authorise the removal or trimming of trees.cll 134–138 (previously cll 100–104): Renumbered 2013 (165), Sch 1 [50].
135 Definitions
In this Part:powerlines includes structures and equipment used for or in connection with the supply of electricity by a service provider.tree means a tree taller than 3 metres, or having a canopy more than 3 metres in maximum diameter or having a trunk with a circumference at a height of 1 metre from the ground of more than 0.3 metres.tree management plan means a tree management plan referred to in clause 137.cll 134–138 (previously cll 100–104): Renumbered 2013 (165), Sch 1 [50].
136 Preservation of trees
(1) A service provider must not remove any tree, or trim any tree in a way that substantially damages the tree, unless:(a) it is of the opinion that it is necessary to do so to protect its powerlines or the safety of persons or property under or near its powerlines, and(b) it has considered alternative methods and is of the opinion that none of those methods are feasible in the circumstances (including economically feasible), and(c) the service provider is acting in accordance with a tree management plan.(2) Alternative methods include, but are not limited to, the use of aerial bundled cables, the controlled trimming of trees and the appropriate location or relocation of powerlines (including placing them underground).cll 134–138 (previously cll 100–104): Renumbered 2013 (165), Sch 1 [50].
137 Tree management plans
(1) A service provider may establish a tree management plan for the trimming, or for the staged removal and replacement, of those species of trees that have a propensity to interfere with powerlines.(2) A tree management plan may contain (but need not be limited to) the following matters:(a) lists of suitable species of trees for planting under or near powerlines in different localities or situations,(b) plans for trimming or removing and replacing existing trees and for controlling future planting of suitable species of trees,(c) trimming or removing trees in an emergency,(d) methods for trimming trees,(e) the use of accredited contractors for trimming trees,(f) the intended allocation of costs between the service provider and the relevant council or councils for the district in which the plan is to operate,(g) the environmental factors to be considered in trimming trees,(h) the development of public education and publicity programs encouraging the selection of appropriate species of trees for planting under or near powerlines.(3) A tree management plan may make different provision with respect to public land, private land, urban land and rural land.(4) A tree management plan may be amended by a subsequent tree management plan.cll 134–138 (previously cll 100–104): Renumbered 2013 (165), Sch 1 [50].
138 Consultation with councils and the public
A tree management plan is to be prepared in a way that gives an opportunity to comment on the proposed plan to the relevant council or councils for the district in which it is to operate, to the residents of the district and to local community groups.cll 134–138 (previously cll 100–104): Renumbered 2013 (165), Sch 1 [50].
Part 11 Infrastructure protection
pt 11 (previously Part 11A): Ins 2010 (331), Sch 1. Renumbered 2013 (165), Sch 1 [51].
139 Definitions
(1) In this Part:development consent means:(a) a development consent under Part 4 of the Environmental Planning and Assessment Act 1979, or(b) an approval under Part 3A or Part 5.1 of that Act.notifiable excavation work means excavation work to which section 63Z of the Act applies (as set out in clause 140).power lines information means information provided by the designated information provider or a network operator in response to a request by a person under section 63Z (1) of the Act.utility service means a water, gas, electricity, sewerage, drainage or telecommunications service.(2) Words and expressions used in this Part have the same meaning as they have in Part 5E of the Act.cl 139 (previously cl 104A): Ins 2010 (331), Sch 1. Am 2011 No 22, Sch 2.5. Renumbered 2013 (165), Sch 1 [50].
140 Excavation work requiring contact with designated information provider
(1) Work of the following kind, that is carried out within the distribution district of a distribution network service provider, is excavation work to which section 63Z of the Act applies:(a) excavation for which development consent is required or that is carried out under a development consent,(b) excavation that is, or is carried out in connection with, an activity within the meaning of Part 5 of the Environmental Planning and Assessment Act 1979,(c) excavation of any land conducted by or on behalf of a public authority,(d) excavation of any land on which an underground utility service is located, or proposed to be located, by or on behalf of the owner or proposed owner of the service,(e) excavation of any land on which an underground utility service is located for the purpose of the repair or maintenance of works connected with the utility service.(2) Despite subclause (1), work of the following kind is not excavation work to which section 63Z of the Act applies:(a) excavation conducted with the use of machinery or powered tools to a depth of less than 150 mm,(b) excavation for the purposes of ploughing, to a depth of less than 250 mm, on land within a rural zone or a rural-residential zone under an environmental planning instrument,(c) excavation conducted without the use of machinery or powered tools to a depth of less than 300 mm,(d) excavation conducted under a lease, licence or mineral claim under the Mining Act 1992,(e) excavation conducted in an emergency, including (but not limited to) work to prevent or mitigate injury or death or to prevent or mitigate serious damage to property or the environment,(f) excavation conducted without the use of machinery or powered tools by, or on behalf of, the owner of a utility service for the purpose of ascertaining the location of the service or testing the integrity of the service,(g) excavation conducted by, or on behalf of, the owner of a utility service to stop loss of water, if urgently required in response to water main leaks and breaks.cll 140–144 (previously cll 104B–104F): Ins 2010 (331), Sch 1. Renumbered 2013 (165), Sch 1 [50].
141 Requirements for carrying out excavation work: s63Z (4) of Act
(1) Notification of network operator Subclauses (2) and (3) apply if power lines information provided to a person contains a requirement that notice of proposed notifiable excavation work must be given to the network operator that owns underground electricity power lines in the vicinity of the proposed work before the work is commenced.(2) A person must not commence to carry out, or authorise the commencement of, the notifiable excavation work unless the person has first given notice of the proposed work to the network operator.(3) The person must also provide to the network operator any information about the proposed work that is requested by the network operator.(4) Recent request for information A person who carries out notifiable excavation work must have made a request for information under section 63Z of the Act not earlier than 30 days before the work is commenced, unless a request has been made by another person in relation to that work within that period.(5) Regard to be had to information A person who carries out notifiable excavation work must, in carrying out that work, have regard to the following:(a) any information, provided by the designated information provider or a network operator, as to the location and type of any underground electricity power line in the vicinity of the work,(b) any other information provided to the person by a network operator or the designated information provider in respect of underground electricity power lines.Note—A person who undertakes excavation work is subject to duties and responsibilities under the Occupational Health and Safety Act 2000. The WorkCover Authority has prepared the Work Near Underground Assets Guideline, which contains practical advice for working near underground utility services and guidance as to how to meet the requirements of the Occupational Health and Safety Act 2000 when carrying out excavation work.cll 140–144 (previously cll 104B–104F): Ins 2010 (331), Sch 1. Renumbered 2013 (165), Sch 1 [50].
142 Provision of information by network operator
(1) A network operator that is notified of proposed notifiable excavation work in the vicinity of underground electricity power lines owned by the network operator must ensure that the person who notifies the work, or the person proposing to carry out the work, is informed of the existence of the Work Near Underground Assets Guideline published in 2007 by the WorkCover Authority.(2) The network operator must provide a copy of that Guideline if requested to do so by the person who notifies the work or who is proposing to carry out the work.cll 140–144 (previously cll 104B–104F): Ins 2010 (331), Sch 1. Renumbered 2013 (165), Sch 1 [50].
143 Notification of damage to underground electricity power lines
A person who is required to notify a network operator under section 63ZA (1) of the Act of damage to an underground electricity power line must notify the network operator:(a) by telephoning the contact telephone number provided to the person by the designated information provider for that purpose, or(b) if no such contact telephone number is provided, by telephoning the emergency contact telephone number for the network operator that is listed in a telephone or internet directory.cll 140–144 (previously cll 104B–104F): Ins 2010 (331), Sch 1. Renumbered 2013 (165), Sch 1 [50].
144 Maximum amount of civil monetary liability
The maximum amount of civil monetary liability of a designated information provider, any officer or employee of a designated information provider or any person acting on behalf of a designated information provider for an act or omission of a kind referred to in section 63ZC (2) of the Act done or made through negligence is $10 million.cll 140–144 (previously cll 104B–104F): Ins 2010 (331), Sch 1. Renumbered 2013 (165), Sch 1 [50].
Part 12 Solar bonus scheme
pt 12 (previously Part 11B): Ins 2010 (723), Sch 1 [4]. Renumbered 2013 (165), Sch 1 [51].
145 Additional criteria for receiving credit under solar bonus scheme
For the purposes of section 191 (1A) (k) of the Act, the additional criteria are as follows:(a) a credit must not be recorded in respect of a customer for electricity produced by more than one generator,(b) a credit must not be recorded in respect of electricity produced by a generator that connects to the distribution network by way of an inverter if the inverter has a capacity of more than 10 kilowatts,(c) a credit must not be recorded in respect of electricity produced by a solar photovoltaic generator installed and connected after the commencement of section 15A of the Act unless the generator was installed by a person, who at the time of the installation had a Grid-connect Design & Install accreditation from the Clean Energy Council.cl 145 (previously cl 104G (previously cl 114A)): Ins 2009 (583), Sch 1 [2]. Renumbered 2010 (723), Sch 1 [5]. Am 2013 (165), Sch 1 [52]. Renumbered 2013 (165), Sch 1 [61].
146 Solar bonus scheme transition day—net feed-in generators
For the purposes of the definition of transition day in clause 61 (5) of Schedule 6 to the Act, 1 July 2011 is prescribed but only in respect of electricity supplied to the distribution network of Endeavour Energy, Essential Energy or Ausgrid by a net feed-in generator.cl 146 (previously cl 104H (previously cl 114B)): Ins 2010 (272), cl 3. Renumbered 2010 (723), Sch 1 [5]. Am 2013 (165), Sch 1 [53] [54]. Renumbered 2013 (165), Sch 1 [61].
147 Form of evidence as to eligibility for higher rate
(1) For the purposes of clause 61 (2) (c) of Schedule 6 to the Act, a person who makes an application to connect a generator to the distribution network must provide the following documents (or copies) to the Director-General (or a person or body appointed by the Director-General) on request:(a) a document (such as a receipt or a copy of an application form) that proves that the application was received by the relevant distribution network service provider before 19 November 2010, and(b) a document, such as a signed contract, order form, tax invoice or receipt, that proves that the customer to which the application relates entered a binding agreement to purchase or lease the generator before 28 October 2010.(2) If the person who made the application is not the customer and that person fails to produce a document when requested to do so under subclause (1), the customer must provide the document (or copy) if requested to do so.cl 147 (previously cl 104I): Ins 2010 (723), Sch 1 [4]. Am 2013 (165), Sch 1 [55]. Renumbered 2013 (165), Sch 1 [61].
148 Reporting and provision of information
(1) For the purposes of section 15A (7) of the Act, a distribution network service provider must provide to the Minister and the Director-General:(a) a report containing the information set out in section 15A (7) (a) and (c) of the Act as soon as practicable after the end of each reporting period, being each period of 14 days following the commencement of this clause, and(b) a report containing the information set out in section 15A (7) (b) and (d) of the Act as soon as practicable after the end of each reporting period, being each period of 6 months following the commencement of this clause.(2) The report under subclause (1) (a) must also specify the total number of customers in the distribution network service provider’s distribution district who have applied to install and connect a complying generator but who have not yet connected the generator and the total generating capacity of those generators.(3) The information under section 15A (7) (b) of the Act is to specify the number of customers within each postcode who have installed and connected complying generators.(4) The information under section 15A (7) (d) of the Act is to specify the amount of electricity supplied each calendar month by complying generators.(5) The information in a report is to reflect the position as at the end of the relevant reporting period or calendar month as the case may be.(6) A distribution network service provider must also provide to the Director-General, at such times and in such form as the Director-General may request, the following information in relation to a customer who has connected, or applied to connect, a complying generator:(a) the date that the application to connect the generator was received by the distribution network service provider,(b) the name and address of the customer and the address where the generator is, or is to be, installed,(c) the name and address of the person (if any) who made the application on behalf of the customer,(d) whether the customer is a regulated offer customer or other customer eligible for a credit under section 15A of the Act and if so, the reason why,(e) the rate per kilowatt hour recorded, or to be recorded, in respect of electricity supplied by the customer,(f) the name, licence number and contact details of the person who installed, or is to install, the generator.(7) In this clause:complying generator includes a generator that is taken to be a complying generator because of clause 60 of Schedule 6 to the Act.cl 148 (previously cl 104J): Ins 2010 (723), Sch 1 [4]. Am 2013 (165), Sch 1 [56] [57]. Renumbered 2013 (165), Sch 1 [61].
149 Changed domestic circumstances
For the purposes of clause 61 (4) of Schedule 6 to the Act, clause 61 of that Schedule does not cease to apply in respect of a complying generator if the new person in respect of whom the credit is to be recorded for electricity produced by the generator has a domestic relationship (within the meaning of the Crimes (Domestic and Personal Violence) Act 2007) with the person in respect of whom the credit was previously recorded.cl 149 (previously cl 104K): Ins 2010 (723), Sch 1 [4]. Renumbered 2013 (165), Sch 1 [61].
150 Higher rate available where generator capacity increased
(1) For the purposes of section 15A (5) of the Act, the amount of $0.60 per kilowatt hour is prescribed if:(a) the electricity is generated by a complying generator (including a generator that is taken to be a complying generator because of clause 60 of Schedule 6 to the Act) that was first connected to the distribution network before 28 October 2010, and(b) the generator had its capacity increased on or after that date using eligible components, and(c) the customer retains a proof of purchase document, and provides that document (or a copy), within a reasonable time, to the Director-General (or a person or body appointed by the Director-General) on request.(2) This clause ceases to apply in respect of a generator if the capacity of the generator is increased to more than 10 kilowatts or is increased using components other than eligible components.(3) This clause ceases to apply in respect of a generator (including a generator that replaces that generator) if there is a change in the person in respect of whom the credit is recorded for electricity produced by the generator unless the new person in respect of whom the credit is to be recorded has a domestic relationship (within the meaning of the Crimes (Domestic and Personal Violence) Act 2007) with the person in respect of whom the credit was previously recorded.(4) An agreement entered into by a customer to purchase or lease a generator is a binding agreement for the purposes of this clause even if the agreement permits the customer to terminate the agreement without penalty.(5) In this clause:eligible components mean components that a customer had entered a binding agreement to purchase or lease before 28 October 2010.proof of purchase document means a document, such as a signed contract, order form, tax invoice or receipt, that proves that the customer entered a binding agreement to purchase or lease the component before 28 October 2010.cl 150 (previously cl 104L): Ins 2010 (723), Sch 1 [4]. Am 2013 (165), Sch 1 [58]. Renumbered 2013 (165), Sch 1 [61].
151 Saving of rights of solar bonus scheme applicants who applied for connection to distribution network before 29/4/2011 and were connected on or before 30/6/2012
(1) This clause is made pursuant to section 15A (8F) of, and clause 1 of Schedule 6 to, the Act.(2) This clause applies to a regulated offer customer or other customer eligible for a credit under section 15A of the Act if:(a) a notice is published under section 15A (8C) of the Act, and(b) before 29 April 2011, a distribution network service provider received an application under section 15A (3) of the Act by or on behalf of the customer to have customer connection services provided so as to connect, or permit the connection of, a complying generator to the distribution network service provider’s distribution network, and(c) the complying generator was not connected to the distribution network before the date specified in the notice but was connected on or before 30 June 2012.(3) The customer is entitled to have credits recorded under section 15A of the Act, and amounts paid under section 34A of the Act, in respect of electricity produced by the complying generator as if the generator had been connected to the distribution network before the notice was published.cl 151 (previously cl 104M): Ins 2011 (343), cl 3. Am 2012 (169), cl 3; 2013 (165), Sch 1 [59] [60]. Renumbered 2013 (165), Sch 1 [61].
Part 13 Miscellaneous
pt 13 (previously Part 12): Renumbered 2013 (165), Sch 1 [62].
Division 1 Savings and transitional provisions
152 Definition
In this Division:former Regulation means the Electricity Supply (General) Regulation 1996.cl 152 (previously cl 105): Am 2013 (165), Sch 1 [63]. Renumbered 2013 (165), Sch 1 [66].
153 Energy distributors taken to hold licences
Each energy distributor (within the meaning of the Energy Services Corporations Act 1995) that was in existence at the commencement of the former Regulation, and that was taken to hold, on the commencement of this Regulation, a service provider’s licence authorising it to operate its distribution system so as to convey electricity for or on behalf of retailers, continues to be taken to hold that licence.cl 153 (previously cl 110): Ins 2013 (165), Sch 1 [65]. Renumbered 2013 (165), Sch 1 [66].
154 Accreditation schemes
(1) An accreditation scheme recognised under the former Regulation immediately before the commencement of this Regulation is taken to have been recognised under this Regulation.(2) Nothing in this Regulation affects an appeal made under Part 7 of the former Regulation and not determined before the commencement of this Regulation.cl 154 (previously cl 113): Renumbered 2013 (165), Sch 1 [66].
155 Savings and transitional provisions consequent on Electricity Supply (General) Amendment (Retail Supply) Regulation 2012
(1) The amendments made by the Electricity Supply (General) Amendment (Retail Supply) Regulation 2012 (the amending Regulation) do not extend to or in relation to the following:(a) any amount payable under a bill issued before the commencement of that Regulation, or to any bill issued before that commencement,(b) the recovery of an undercharged amount if the supplier determined before that commencement that the amount had been undercharged,(c) the reimbursement of an overcharged amount if the supplier determined before that commencement that the amount had been overcharged,(d) the disconnection of premises or discontinuance of the supply of electricity to premises, if the right to take action to disconnect the premises or discontinue supply arose before that commencement,(e) a security deposit paid before that commencement.(2) This Regulation, as in force before the commencement of the amending Regulation, continues to apply in respect of a matter referred to in subclause (1) (a)–(e).cl 155 (previously cl 113D): Ins 2012 (299), Sch 1 [32]. Renumbered 2013 (165), Sch 1 [66].
Division 2 General matters
156 Variation of distribution districts
Schedule 4 has effect.cl 156 (previously cl 116): Renumbered 2013 (165), Sch 1 [76].
157 Market operations rules
For the purposes of section 63C of the Act, market operations rules may be made for or with respect to the following matters:(a) (Repealed)(b) record keeping by retailers and service providers,(c) obligations and procedures relating to the implementation of systems relating to the transfer of information between retailers and service providers, including if required to be made under any Act or other law relating to the supply of electricity related services.cl 157 (previously cl 118): Am 21.12.2001; 2013 (165), Sch 1 [68]–[70]. Renumbered 2013 (165), Sch 1 [76].
158 Point of supply and distribution systems
For the purposes of the definition of point of supply in the Dictionary to the Act, the point of supply in relation to premises of wholesale and retail customers is to be determined in the same way as the point of supply within the meaning of the Service and Installation Rules of New South Wales, as in force from time to time, and published by the Department of Trade and Investment, Regional Infrastructure and Services.cl 158 (previously cl 118A): Ins 2013 (165), Sch 1 [71]. Renumbered 2013 (165), Sch 1 [76].
159 How notice is to be given
(1) A requirement of this Regulation that a person be given written notice is a requirement that the person be given notice in writing either personally or by post.(2) If previously agreed between the parties, a person may be given written notice by personal e-mail or facsimile transmission.(3) For the purposes of section 76 of the Interpretation Act 1987, a notice served by post on a person for the purposes of this Regulation is to be treated as being properly addressed if it is addressed to the address of the person last known to the person giving the notice.cl 159 (previously cl 119): Renumbered 2013 (165), Sch 1 [76].
160 Service of documents
For the purposes of this Regulation, a document may be given to or served on an applicant for accreditation as an accredited abatement certificate provider, an accredited abatement certificate provider, a service provider or a supplier by leaving it at or sending it by post to any office of the applicant, accredited abatement certificate provider, service provider or supplier. This clause does not affect the operation of any provision of a law or of the rules of a court authorising a document to be served on an applicant for accreditation as an accredited abatement certificate provider, an accredited abatement certificate provider, a service provider or a supplier in a different manner.cl 160 (previously cl 120): Am 14.2.2003. Renumbered 2013 (165), Sch 1 [76].
161 Prescribed electricity works
For the purposes of section 54 (1A) of the Act, the following are prescribed electricity works:(a) electricity service equipment for which the retailer has responsibility,(b) systems for the metering and control of electricity supply for which the retailer has responsibility.cl 161 (previously cl 121): Am 2013 (165), Sch 1 [72]. Renumbered 2013 (165), Sch 1 [76].
162 Date on which Division 5 of Part 4 of Act ceases to have effect
(1) For the purpose of section 43EJ (1) of the Act, 30 June 2016 is prescribed as the day on which Division 5 of Part 4 of the Act ceases to have effect.(2) (Repealed)cl 162 (previously cl 121A): Ins 19.9.2003. Am 2007 (114), Sch 1 [2]; 2009 (478), Sch 1 [2] [3]; 2013 (165), Sch 1 [73] [74]. Renumbered 2013 (165), Sch 1 [76].sch 1: Am 21.12.2001; 2008 No 62, Sch 2.19; 2012 (299), Sch 1 [33]–[35]. Rep 2013 (165), Sch 1 [77].sch 2: Am 21.12.2001; 2004 No 4, Sch 4.5 [7]; 2007 (283), Sch 1 [12]–[15]; 2012 (299), Sch 1 [36]–[40]. Rep 2013 (165), Sch 1 [78].sch 3: Am 21.12.2001; 2004 No 4, Sch 4.5 [8]; 2007 (283), Sch 1 [16] [17]; 2012 (299), Sch 1 [41]–[45]. Rep 2013 (165), Sch 1 [79].
Schedules 1–3 (Repealed)
Schedule 4 Variation of distribution districts
(Clause 156)
1 Distribution district of Essential Energy
(1) The part of Wakool referred to in the description of Essential Energy’s distribution district in Schedule 3 to the Act is such part of Wakool as is illustrated as being within that distribution district by the map marked “Far West Energy—Distribution District”, copies of which are displayed on the website of the Department.(2) The part of Windouran referred to in the description of Essential Energy’s distribution district in Schedule 3 to the Act is such part of Windouran as is illustrated as being within that distribution district by the map marked “Far West Energy—Distribution District”, copies of which are displayed on the website of the Department.(3) The part of the unincorporated area referred to in the description of Essential Energy’s distribution district in Schedule 3 to the Act is the whole of that area.
2 Distribution district of Essential Energy
(1) The part of Wakool referred to in the description of Essential Energy’s distribution district in Schedule 3 to the Act is such part of Wakool as is illustrated as being within that distribution district by the map marked “Energy South—Distribution District”, copies of which are displayed on the website of the Department.(2) The part of Windouran referred to in the description of Essential Energy’s distribution district in Schedule 3 to the Act is such part of Windouran as is illustrated as being within that distribution district by the map marked “Energy South—Distribution District”, copies of which are displayed on the website of the Department.(3) The part of Merriwa referred to in the description of Essential Energy’s distribution district in Schedule 3 to the Act is such part of Merriwa as was within the distribution district of Ulan Electricity, as it was immediately before the date of amalgamation.(4) The part of the unincorporated area referred to in the description of Essential Energy’s distribution district in Schedule 3 to the Act is such part of that area as includes:(a) Western Land Portions WL 3486, WL 3487 and WL 3488 in the County of Fitzgerald, and(b) the County of Ularara (Western Land Portions WL 1056, WL 1059, WL 1062, WL 1063 and WL 3069 excepted), and(c) the Counties of Delalah and Thoulcanna.
3 Distribution district of Ausgrid
The part of Merriwa referred to in the description of Ausgrid’s distribution district in Schedule 3 to the Act is such part of Merriwa as was within the distribution district of Shortland Electricity, as it was immediately before the date of amalgamation.
sch 4: Am 2013 (165), Sch 1 [80]–[86].