Electricity Transmission and Distribution Systems (Access) Act 1994 (WA)

Western Australia Electricity Transmission and Distribution Systems (Access) Act 1994 Western Australia Electricity Transmission and Distribution Systems (Access) Act 1994 Contents Part 1 — Preliminary 1. Short title 1 2. Terms used in this Act 1 Part 6 — Access to electricity transmission and distribution systems 89. Definitions 1 94. Enforcement 1 95. Regulations for access and pricing — existing access agreements 1 95A. Phasing‑out of operation of access and procurement provisions 1 96. Regulations 1 Notes Compilation table 1 Uncommenced provisions table 1 Other notes 1 Defined terms Western Australia Electricity Transmission and Distribution Systems (Access) Act 1994 An Act to make provision for the availability of access to electricity transmission and distribution systems, and for related matters. [Long title inserted: No. 18 of 2005 s. 139.] Part 1 — Preliminary 1. Short title This Act may be cited as the Electricity Transmission and Distribution Systems (Access) Act 1994. [Section 1 amended: No. 18 of 2005 s. 139.] 2. Terms used in this Act In this Act, unless the contrary intention appears — corporation means each of — (a) the Electricity Networks Corporation established by section 4(1)(b); and (b) the Regional Power Corporation established by section 4(1)(d), of the Electricity Corporations Act 2005; isolated system means a system for the transmission and distribution of electricity that is not connected to — (a) the North West interconnected system; or (b) the South West interconnected system as defined in section 3 of the Electricity Corporations Act 2005; North West interconnected system means the interconnected transmission and distribution systems, generating works and associated works — (a) located in the Pilbara region of the State; and (b) into which electricity is supplied by one or more of the electricity generation plants at Dampier, Port Hedland and Cape Lambert, as expanded or altered from time to time. [Section 2 inserted: No. 18 of 2005 s. 139.] [3. Deleted: No. 18 of 2005 s. 139.] [Parts 2, 3, 4 and 5 (s. 4-88) deleted: No. 18 of 2005 s. 139.] Part 6 — Access to electricity transmission and distribution systems [Heading inserted: No. 18 of 2005 s. 139.] 89. Definitions (1) In this Part and in Schedules 5 and 6 — electricity distribution capacity, in relation to the electricity distribution system operated by a corporation, means, subject to any provision made by the regulations, the capacity of the system to transport electricity from or to a particular point, consistent with the need to maintain the continuity and integrity of that system, whether or not that capacity is committed to existing users; electricity distribution system, in relation to a corporation, means — (a) the part or parts of the system operated by the corporation for the transportation of electricity that is or are prescribed by the regulations for the purposes of this paragraph; and (b) plant and equipment that is — (i) used by the corporation — (I) in connection with the transfer of electricity to or from any part referred to in paragraph (a); or (II) for a purpose related to such transfer; and (ii) prescribed, or of a kind that is prescribed, by the regulations for the purposes of this subparagraph; electricity transmission capacity, in relation to the electricity transmission system operated by a corporation, means the capacity of the system to transport electricity, consistent with the need to maintain the continuity and integrity of that system; electricity transmission system, in relation to a corporation, means — (a) the part or parts of the system operated by the corporation for the transportation of electricity that is or are prescribed by the regulations for the purposes of this paragraph; and (b) plant and equipment that is — (i) used by the corporation — (I) in connection with the transfer of electricity to or from any part referred to in paragraph (a); or (II) for a purpose related to such transfer; and (ii) prescribed, or of a kind that is prescribed, by the regulations for the purposes of this subparagraph; regulations means the regulations referred to in section 95. (2) In this Part user, in relation to a corporation, means a person who has an arrangement with the corporation for access to either or both of electricity transmission capacity and electricity distribution capacity, and includes the corporation to the extent that it has access to either or both of electricity transmission capacity and electricity distribution capacity. (3) In this Part a reference to Schedule 5 or 6 is a reference to that Schedule as in force before its repeal by the Electricity Transmission and Distribution Systems (Repeal and Related Provisions) Regulations 2007. [Section 89 amended: No. 53 of 2003 s. 107; No. 18 of 2005 s. 139; amended in Gazette 26 Jun 2007 p. 3019.] [90, 91. Deleted in Gazette 26 Jun 2007 p. 3019.] [92, 93. Deleted: No. 18 of 2005 s. 139.] 94. Enforcement (1) The obligations imposed on a corporation by this Part and by Schedules 5 and 6 create duties that are enforceable by civil proceedings in a court, but no breach of those obligations gives rise to an action for damages. (2) A grant of access by a corporation under clause 2 of Schedule 5 or clause 2 of Schedule 6 to a user and the terms and conditions of that grant are to be taken to constitute a contract between the corporation and the user, and rights and obligations under the grant are enforceable accordingly. (3) Nothing in subsection (1) affects — (a) the enforceability of any contract, including a deemed contract under subsection (2), to which a corporation is a party; or (b) the availability of damages for a breach of any such contract. (4) Sections 177 and 178 of The Criminal Code do not apply to the obligations created by or under this Part and Schedules 5 and 6. [Section 94 amended: No. 18 of 2005 s. 139; amended in Gazette 26 Jun 2007 p. 3019.] 95. Regulations for access and pricing — existing access agreements (1) Regulations may be made under section 96 providing for matters relating to — (a) access to, and pricing for, electricity transmission capacity; and (b) access to, and pricing for, electricity distribution capacity, to the extent that provision in respect of those matters is necessary or expedient for the operation and enforcement of existing access agreements. (2) For the purposes of subsection (1) an existing access agreement is — (a) an access agreement as defined in the Electricity Transmission Regulations 1996 regulation 3(1); or (b) a distribution access agreement as defined in the Electricity Distribution Regulations 1997 regulation 3(1), that is in operation on 1 July 2007. (3) Without limiting subsection (1) the regulations may, to the extent mentioned in that subsection, make provision for any matter in respect of which regulations could have been made under Schedule 5 clause 2(2), (3) or (4) or Schedule 6 clause 2(2), (3) or (4). [Section 95 inserted in Gazette 26 Jun 2007 p. 3020.] 95A. Phasing‑out of operation of access and procurement provisions (1) The Minister may, by instrument published in the Government Gazette, declare that a specified relevant provision does not have effect on and after a specified day, and a declaration so made has effect accordingly. (2) A declaration is not to be made in respect of a relevant provision unless the Minister is of the opinion that the matters to which the relevant provision relates — (a) no longer need to be dealt with, or will no longer need to be dealt with on and after the specified day, under this Act or any other written law; or (b) are adequately dealt with, or will be adequately dealt with on and after the specified day, under — (i) another provision of this Act; or (ii) the Electricity Industry Act 2004 Part 8, the Code established under that Part and the electricity system and market rules under that Act. (3) A declaration is not to be made after the expiration of the period of 18 months beginning on the day on which Schedule 5 clause 17 of the Electricity Corporations Act 2005 comes into operation. (4) Regulations made under section 96 may — (a) repeal any specified relevant provision that has ceased to have effect because of a declaration; (b) effect any repeal of or amendment to any other provision of this Part or Schedule 5, 6 or 7 that is consequential on a repeal referred to in paragraph (a); and (c) prescribe any matter that it is necessary or convenient to prescribe for transitional or savings purposes in relation to a declaration or in relation to a repeal or amendment referred to in paragraph (a) or (b). (5) In this section — declaration means a declaration made under subsection (1); relevant provision means any of section 90 or 91 or Schedule 5 or 6, or any portion of any of those sections or Schedules; specified means specified in the declaration. [Section 95A inserted: No. 33 of 2004 s. 26; amended: No. 18 of 2005 s. 139; No. 1 of 2024 s. 50.] 96. Regulations The Governor may make regulations prescribing all matters that are required or permitted by this Act to be prescribed or are necessary or convenient to be prescribed for giving effect to the purposes of this Act. [Section 96 inserted: No. 18 of 2005 s. 139.] [Part 7 deleted: No. 18 of 2005 s. 139.] [Schedules 1, 2, 3 and 4 deleted: No. 18 of 2005 s. 139.] [Schedules 5 and 6 deleted in Gazette 26 Jun 2007 p. 3019.] [Schedule 7 deleted: No. 18 of 2005 s. 139.] Notes This is a compilation of the Electricity Transmission and Distribution Systems (Access) Act 1994 and includes amendments made by other written laws 2. For provisions that have come into operation, and for information about any reprints, see the compilation table. For provisions that have not yet come into operation see the uncommenced provisions table. Compilation table Short title Number and year Assent Commencement Act other than s. 90, 91 and 93: 1 Jan 1995 (see s. 2(1) and Gazette 23 Dec 1994 p. 7069); Electricity Corporation Act 1994 3 86 of 1994 15 Dec 1994 s. 90 and 93: 1 Jan 1997 (see s. 2(2) and Gazette 31 Dec 1996 p. 7255); s. 91: 1 Jul 1997 (see s. 2(2) and Gazette 1 Jul 1997 p. 3249) State Enterprises (Commonwealth Tax Equivalents) Act 1996 s. 10(3) 55 of 1996 11 Nov 1996 1 Jul 1996 (see s. 2 and 3(3)) Statutes (Repeals and Minor Amendments) Act 1997 s. 52 57 of 1997 15 Dec 1997 15 Dec 1997 (see s. 2(1)) Statutes (Repeals and Minor Amendments) Act (No. 2) 1998 s. 32 10 of 1998 30 Apr 1998 30 Apr 1998 (see s. 2(1)) Acts Amendment and Repeal (Financial Sector Reform) Act 1999 s. 76 26 of 1999 29 Jun 1999 1 Jul 1999 (see s. 2(1) and Gazette 30 Jun 1999 p. 2905) Gas Corporation (Business Disposal) Act 1999 s. 45 and 87 58 of 1999 24 Dec 1999 s. 45: 24 Dec 1999 (see s. 2(1)); s. 87: 1 Jul 2000 (see s. 2(2) and Gazette 4 Jul 2000 p. 3545) Reprint of the Electricity Corporation Act 1994 as at 4 Jan 2000 (includes amendments listed above except those in the Gas Corporation (Business Disposal) Act 1999 s. 87) Statutes (Repeals and Minor Amendments) Act 2000 s. 14 24 of 2000 4 Jul 2000 4 Jul 2000 (see s. 2) State Superannuation (Transitional and Consequential Provisions) Act 2000 s. 42 43 of 2000 2 Nov 2000 17 Feb 2001 (see s. 2(1) and Gazette 16 Feb 2001 p. 903) Corporations (Consequential Amendments) Act 2001 Pt. 22 10 of 2001 28 Jun 2001 15 Jul 2001 (see s. 2 and Gazette 29 Jun 2001 p. 3257 and Cwlth Gazette 13 Jul 2001 No. S285) Labour Relations Reform Act 2002 s. 27 20 of 2002 8 Jul 2002 15 Sep 2002 (see s. 2(1) and Gazette 6 Sep 2002 p. 4487) Electricity Corporation (Act Amendment) Regulations 2002 published in Gazette 1 Nov 2002 p. 5375‑87 1 Nov 2002 Reprint 2: The Electricity Corporation Act 1994 as at 3 Jan 2003 (includes amendments listed above) Corporations (Consequential Amendments) Act (No. 3) 2003 Pt. 4 4 21 of 2003 23 Apr 2003 11 Mar 2002 (see s. 2 and Cwlth Gazette 24 Oct 2001 No. GN42) Acts Amendment (Equality of Status) Act 2003 Pt. 18 28 of 2003 22 May 2003 1 Jul 2003 (see s. 2 and Gazette 30 Jun 2003 p. 2579) Sentencing Legislation Amendment and Repeal Act 2003 s. 57 50 of 2003 9 Jul 2003 15 May 2004 (see s. 2 and Gazette 14 May 2004 p. 1445) Labour Relations Reform (Consequential Amendments) Regulations 2003 r. 21 published in Gazette 15 Aug 2003 p. 3685‑92 15 Sep 2003 (see r. 2) Energy Legislation Amendment Act 2003 s. 102‑108, 109(1)‑(3) and 110(1)‑(3) 7 53 of 2003 8 Oct 2003 8 Oct 2003 (see s. 2(1) and (2)) Statutes (Repeals and Minor Amendments) Act 2003 s. 49 74 of 2003 15 Dec 2003 15 Dec 2003 (see s. 2) Electricity Legislation Amendment Act 2004 Pt. 2 Div. 2 33 of 2004 20 Oct 2004 24 Nov 2004 (see s. 2 and Gazette 23 Nov 2004 p. 5243) Electricity Corporations Act 2005 Sch. 5 cl. 7-22 5, 6 18 of 2005 (as amended by No. 8 of 2009 s. 50(3)(b)) 13 Oct 2005 Sch. 5 (other than cl. 21(2)(a)(ii)): 1 Apr 2006 (see s. 2(2) and Gazette 31 Mar 2006 p. 1153) Sch. 5 cl. 21(2)(a)(ii) deleted by No. 8 of 2009 s. 50(3)(b) Reprint 3: The Electricity Transmission and Distribution Systems (Access) Act 1994 as at 4 Aug 2006 (includes amendments listed above) Electricity Transmission and Distribution Systems (Repeal and Related Provisions) Regulations 2007 published in Gazette 26 Jun 2007 p. 3018-21 8 r. 1 and 2: 26 Jun 2007 (see r. 2(a)); Regulations other than r. 1 and 2: 1 Jul 2007 (see r. 2(b)) Electricity Industry Amendment (Distributed Energy Resources) Act 2024 Pt. 2 Div. 4 1 of 2024 7 Mar 2024 6 Feb 2025 (see s. 2(b) and SL 2025/31 cl. 2) Uncommenced provisions table To view the text of the uncommenced provisions see Acts as passed on the WA Legislation website. Short title Number and year Assent Commencement Electricity Industry Amendment (Distributed Energy Resources) Act 2024 Pt. 3 Div. 3 1 of 2024 7 Mar 2024 To be proclaimed (see s. 2(b)) Other notes 1 Footnote no longer required. 2 The Energy Corporations (Transitional and Consequential Provisions) Act 1994 Pt. 3 (as amended by the Electricity Corporations Act 2005 s. 139) reads as follows: " Part 3 — Transitional provisions for succession from Commission to New Corporations Division 1 — Preliminary 42. Intention The intention of the provisions of this Part is that the Electricity Corporation and the Gas Corporation will, in accordance with those provisions, stand in place of and be the successors to the Commission, except so far as section 48 applies. 43. Definitions In this Part, unless the contrary intention appears — assets means — (a) property of every kind whether tangible or intangible, real or personal, corporeal or incorporeal; and (b) without limiting paragraph (a) includes choses in action, goodwill, rights, interests and claims of every kind in or to property, whether arising from, accruing under, created or evidenced by or the subject of, an instrument or otherwise and whether liquidated or unliquidated, actual, contingent or prospective; commencement day means the day on which Part 2 comes into operation; Commission means the Commission under the principal Act as in force before the commencement day; corporation means the Electricity Corporation or the Gas Corporation but in section 47 corporations means both of those corporations; Electricity Corporation means the body corporate established by section 4 of the Electricity Corporation Act 1994; Gas Corporation means the body corporate established by section 4 of the Gas Corporation Act 1994; liability means any liability, duty or obligation whether actual, contingent or prospective, liquidated or unliquidated, or whether owed alone or jointly or jointly and severally with any other person; principal Act means the State Energy Commission Act 1979; right means any right, power, privilege or immunity whether actual, contingent or prospective; transfer order means the order and any amendments to it made by the Minister under section 44, and includes any order made under subsection (5) of that section. Division 2 — Devolution of Commission's assets and liabilities etc 44. Minister to make order for allocation of assets and liabilities (1) As soon as is practicable after this section comes into force the Minister is to make and publish in the Gazette an order specifying — (a) how assets, rights and liabilities of the Commission are to be allocated to the Electricity Corporation and the Gas Corporation; and (b) any proceedings in which the Electricity Corporation or the Gas Corporation is to be, or both of those corporations are to be, substituted for the Commission as a party or parties. (2) An allocation under subsection (1)(a) may be made to — (a) the Electricity Corporation; (b) the Gas Corporation; or (c) both of those corporations either jointly or as tenants in common in equal or unequal shares. (3) Without limiting subsection (1), an order under that subsection may — (a) provide for the allocation of income in respect of any asset; (b) in respect of a particular liability, allocate a specified share of the liability to each of the corporations; (c) provide for the transfer, debiting, crediting, closing or otherwise dealing with any account, reserve, fund, provision, profit or liability for any levy; and (d) contain such incidental or supplementary provisions as the Minister thinks fit. (4) The transfer order may be amended by the Minister, by further order published in the Gazette, but no such amendment may be made after the commencement day. (5) Where for any reason it is not practicable to allocate any asset, right or liability to a corporation, or to both of the corporations, under this section before the commencement date — (a) the transfer order is to specify that the asset, right or liability is to be allocated under this subsection; and (b) the Minister may make a further order under this section in respect of that asset, right or liability not later than 90 days after the commencement day. (6) An order under subsection (5) is to have effect from the commencement day. (7) The Commission is to be taken to continue to hold an asset or right, and to be liable for a liability, to which subsection (5) applies until an order is made under that subsection. 45. Transfer of assets and liabilities to the Electricity Corporation (1) On and after the commencement day — (a) the assets and rights of the Commission allocated to the Electricity Corporation by the transfer order vest in that corporation by force of this section; (b) the liabilities of the Commission (including a share of a liability) allocated to the Electricity Corporation by the transfer order become, by force of this section, the liabilities of that corporation; (c) subject to section 49, any agreement or instrument relating to the assets, rights and liabilities referred to in paragraphs (a) and (b) has effect, by force of this section, as if the Electricity Corporation were substituted for the Commission in the agreement or instrument; (d) the Electricity Corporation is a party to any proceedings by or against the Commission commenced before the commencement day in accordance with any provision of the transfer order to that effect made under section 44(1)(b); (e) any proceedings or remedy that might have been commenced by or available against or to the Commission in relation to the assets, rights and liabilities referred to in paragraphs (a) and (b), may be commenced and are available, by or against or to the Electricity Corporation; (f) any act, matter or thing done or omitted to be done in relation to the assets, rights and liabilities referred to in paragraphs (a) and (b) before the commencement day by, to or in respect of the Commission (to the extent that that act, matter or thing has any force or effect) is to be taken to have been done or omitted by, to or in respect of the Electricity Corporation; (g) the Commission is to deliver to the Electricity Corporation all registers, papers, documents, minutes, receipts, books of account and other records (however compiled, recorded or stored) relating to — (i) the assets, rights and liabilities referred to in paragraphs (a) and (b); and (ii) proceedings referred to in paragraph (d); and (h) all provisions of the transfer order relevant to this section have effect. (2) Subsection (1)(c) and (e) has effect subject to any provision of the transfer order made under section 44(3)(b). 46. Transfer of assets and liabilities to the Gas Corporation (1) On and after the commencement day — (a) the assets and rights of the Commission allocated to the Gas Corporation by the transfer order vest in that corporation by force of this section; (b) the liabilities of the Commission (including a share of a liability) allocated to the Gas Corporation by the transfer order become, by force of this section, the liabilities of that corporation; (c) subject to section 49, any agreement or instrument relating to the assets, rights and liabilities referred to in paragraphs (a) and (b) has effect, by force of this section, as if the Gas Corporation were substituted for the Commission in the agreement or instrument; (d) the Gas Corporation is a party to any proceedings by or against the Commission commenced before the commencement day in accordance with any provision of the transfer order to that effect made under section 44(1)(b); (e) any proceedings or remedy that might have been commenced by or available against or to the Commission in relation to the assets, rights and liabilities referred to in paragraphs (a) and (b), may be commenced and are available, by or against or to the Gas Corporation; (f) any act, matter or thing done or omitted to be done in relation to the assets, rights and liabilities referred to in paragraphs (a) and (b) before the commencement day by, to or in respect of the Commission (to the extent that that act, matter or thing has any force or effect) is to be taken to have been done or omitted by, to or in respect of the Gas Corporation; (g) the Commission is to deliver to the Gas Corporation all registers, papers, documents, minutes, receipts, books of account and other records (however compiled, recorded or stored) relating to — (i) the assets, rights and liabilities referred to in paragraphs (a) and (b); and (ii) proceedings referred to in paragraph (d); and (h) all of the provisions of the transfer order relevant to this section have effect. (2) Subsection (1)(c) and (e) has effect subject to any provision of the transfer made under section 44(3)(b). 47. Transfer of assets and liabilities to both corporations On and after the commencement day — (a) the assets and rights of the Commission allocated to the corporations jointly by the transfer order vest in those corporations jointly by force of this section; (b) the assets and rights of the Commission allocated to the corporations as tenants in common by the transfer order vest in those corporations as tenants in common in the shares specified in the transfer order by force of this section; (c) the liabilities of the Commission allocated to the corporations jointly by the transfer order become, by force of this section, the liabilities of those corporations jointly; (d) subject to section 49, any agreement or instrument relating to the assets, rights and liabilities referred to in paragraphs (a) and (b) has effect, by force of this section, as if the corporations were substituted for the Commission in the agreement or instrument; (e) the corporations jointly are parties to any proceedings by or against the Commission commenced before the commencement day in accordance with any provision of the transfer order to that effect made under section 44(1)(b); (f) any proceedings or remedy that might have been commenced by or available against or to the Commission in relation to the assets, rights and liabilities referred to in paragraphs (a), (b) and (c), may be commenced and are available, by or against or to the corporations jointly or severally in accordance with the transfer order; (g) any act, matter or thing done or omitted to be done in relation to the assets, rights and liabilities referred to in paragraphs (a), (b) and (c) before the commencement day by, to or in respect of the Commission (to the extent that that act, matter or thing has any force or effect) is to be taken to have been done or omitted by, to or in respect of the corporations jointly or severally in accordance with the transfer order; (h) the Commission is to deliver to the Electricity Corporation all registers, papers, documents, minutes, receipts, books of account and other records (however compiled, recorded or stored) relating to — (i) the assets, rights and liabilities referred to in paragraphs (a), (b) and (c); and (ii) proceedings referred to in paragraph (e); and (i) all of the provisions of the transfer order relevant to this section have effect. 48. Unallocated assets and liabilities Subject to section 44(5), on and after the commencement day — (a) any assets and rights of the Commission that do not vest in a corporation or the corporations under section 45, 46 or 47, are to be dealt with as the Minister directs; (b) any liability of the Commission that does not become a liability of a corporation or the corporations under section 45, 46 or 47 is, so far as it is properly payable, to be discharged in such manner and from such source as the Minister, with the approval of the Treasurer, directs; (c) subject to section 49, any agreement or instrument relating to the assets, rights and liabilities referred to in paragraphs (a) and (b) has effect, by force of this section, as if the State were substituted for the Commission in the agreement or instrument; (d) any proceedings or remedy that might have been commenced by or available against or to the Commission in relation to the assets, rights and liabilities referred to in paragraphs (a) and (b), may be commenced and are available, by or against or to the State; (e) any act, matter or thing done or omitted to be done in relation to the assets, rights and liabilities referred to in paragraphs (a) and (b) before the commencement day by, to or in respect of the Commission (to the extent that that act, matter or thing has any force or effect) is to be taken to have been done or omitted by, to or in respect of the State; and (f) the Commission is to deliver to the Minister all registers, papers, documents, minutes, receipts, books of account and other records (however compiled, recorded or stored) relating to the assets, rights and liabilities referred to in paragraphs (a) and (b). 49. References to Commission in Government agreements (1) The transfer order is to also specify for each provision in a Government agreement in which there is a reference to the Commission whether that reference is to be read as a reference to — (a) the Electricity Corporation; (b) the Gas Corporation; (c) both those corporations either jointly or as tenants in common in equal or unequal shares; (d) a Minister of the Crown or the State; or (e) the Coordinator of Energy referred to in section 4 of the Energy Coordination Act 1994. (2) Subsection (1) does not apply to a provision of a Government agreement that is spent or has had its effect. (3) On and after the commencement day a provision of a Government agreement which under subsection (1) is affected by the transfer order has effect by force of this section as so affected. (4) In this section "Government agreement" has the same meaning as it has in the Government Agreements Act 1979. 50. Debentures and inscribed stock (1) Without limiting section 45, 46 or 47 any debentures or inscribed stock which devolve under any of those sections, and the determination of rights and obligations in respect of the same, continue to be governed by sections 108 and 111 of the principal Act and regulations made under section 110 of that Act, despite the repeal of those sections, as if — (a) those sections and regulations remained in force; and (b) references in those sections and regulations to the "Commission" were references to — (i) a new corporation; or (ii) 2 or more of the new corporations jointly or severally, in accordance with a transfer order. (1a) In subsection (1)(b) — new corporation and transfer order have the meanings given to those terms in section 142(1) of the Electricity Corporation