New South Wales: National Energy Retail Law (NSW)

National Energy Retail Law (NSW) No 37a of 2012 Editorial note— The National Energy Retail Law is applied (with changes and additions) as a law of NSW by the NSW National Energy Retail Law (Adoption) Act 2012. This version is the Law as it applies in NSW. Part 1 Preliminary Division 1 Citation and interpretation 1 Citation This Law may be cited as the National Energy Retail Law (NSW). 2 Interpretation (1) In this Law— AEMC means the Australian Energy Market Commission established by section 5 of the Australian Energy Market Commission Establishment Act 2004 of South Australia; AEMO means Australian Energy Market Operator Limited (ACN 072 010 327); AER means the Australian Energy Regulator established by section 44AE of the Competition and Consumer Act 2010 of the Commonwealth; AER Exempt Selling Guidelines—see section 118; AER exempt selling regulatory function or power means a function or power performed or exercised by the AER under Division 6 or 7 of Part 5 and the Rules relating to exemptions from the requirement to hold a retailer authorisation, including (but not limited to) the following— (a) a decision whether to grant, vary or revoke an individual exemption; (b) a decision whether to impose, vary or revoke conditions on an individual exemption; (c) a decision whether to make, vary or revoke a determination specifying deemed exemptions or registrable exemptions, including any associated conditions; (d) a decision to make or vary the AER Exempt Selling Guidelines; AER regulatory function or power means a function or power performed or exercised by the AER under this Law or the Rules that relates to— (a) the AER performance regime under Division 2 of Part 12; (b) a retailer authorisation under Part 5; (c) an AER exempt selling regulatory function or power; (d) the AER Retail Pricing Information Guidelines and price comparator; (e) approval of deemed AER approved standard connection contracts under Division 5 of Part 3; (f) the RoLR scheme under Part 6; (g) the AER trial waiver functions under Part 5A; AER Retail Pricing Information Guidelines—see section 61; AER Retailer Authorisation Guidelines—see section 117; annual turnover has the same meaning as in section 2(1) of Schedule 2 to the Competition and Consumer Act 2010 of the Commonwealth; application Act means an Act of a participating jurisdiction that applies, as a law of that jurisdiction, this Law or any part of this Law; associate of a retailer or distributor includes— (a) an employee or agent of the retailer or distributor; and (b) a person contracted by the retailer or distributor; and (c) a person who receives or is contracted to receive commissions from the retailer or distributor; business customer means a customer who is not a residential customer; business day means a day that is not— (a) a Saturday or Sunday; or (b) observed as a public holiday on the same day in each of the participating jurisdictions (except the Commonwealth); business premises means premises of a business customer, other than premises used solely or principally for personal, household or domestic use; carry-over customer means a small customer who continues consuming energy at premises after the customer's previously current customer retail contract expires or terminates— (a) without provision in that contract for the terms and conditions to apply after expiry or termination for the continued provision of those services; and (b) without applying to a retailer for the provision (after that expiry or termination) of those services; Centrepay means the voluntary direct deduction facility operated by Centrelink; civil monetary liability means a liability for damages, compensation or any other monetary amount that can be recovered by way of civil proceedings, but does not include— (a) a liability for a civil penalty; or (b) an infringement penalty under provisions applied by this Law; or (c) a liability for the costs of a proceeding; civil penalty—see section 4A; civil penalty provision has the meaning given by section 4(1); Commonwealth Minister means the Minister of the Commonwealth administering the Australian Energy Market Act 2004 of the Commonwealth; conduct provision has the meaning given by section 4(2); connection means a physical link between a distribution system and a customer's premises to allow the flow of energy; connection alteration means an alteration to an existing connection, including an addition, upgrade, extension, expansion, augmentation or any other kind of alteration; Court means— (a) where this Law applies as a law of the Commonwealth, the Federal Court; (b) where this Law applies as a law of a participating jurisdiction that is a State or a Territory, the Supreme Court of that jurisdiction; covered gas has the same meaning as in the NGL; customer—see section 5; customer connection contract means a contract between a distributor and a customer of the kind referred to in section 67; customer connection service for premises means any or all of the following— (a) a service relating to a new connection for the premises; (b) a service relating to a connection alteration for the premises; (c) a supply service for the premises, including (but not limited to) the energisation, de-energisation or re-energisation of the premises; (d) a service prescribed by the Rules as a customer connection service for the purposes of this definition; customer hardship policy means a customer hardship policy approved under Division 6 of Part 2; customer retail contract means a contract between a small customer and a retailer of a kind referred to in section 20 for the provision of customer retail services for particular premises; customer retail service means the sale of energy by a retailer to a customer at premises; declared wholesale gas market has the same meaning as in the NGL; de-energisation or disconnection of premises means— (a) in the case of electricity—the opening of a connection; or (b) in the case of gas—the closing of a connection, in order to prevent the flow of energy to the premises; deemed AER approved standard connection contract means a customer connection contract that is taken to be entered into under section 76; deemed customer retail arrangement—see section 54; deemed standard connection contract means a customer connection contract that is taken to be entered into under section 70; delivery point identifier means the meter installation identification as defined under the relevant Retail Market Procedures within the meaning of the NGL and made under the NGR; designated retailer for a small customer's premises means— (a) in a case where there is no existing connection—the local area retailer for the relevant geographical area, premises or customer (see section 11(3)); or (b) in a case where there is an existing connection (including where a connection alteration to an existing connection is required)—the financially responsible retailer for the premises; disconnection—see the definition of de-energisation; distribution system means— (a) for a distributor who is a regulated distribution system operator within the meaning of the NEL—a distribution system within the meaning of the NEL; or (b) for a distributor who is a service provider within the meaning of the NGL who owns, operates or controls a distribution pipeline that is a scheme pipeline under that law—a distribution pipeline within the meaning of the NGL; or (c) for a nominated distributor under section 12—the nominated distribution system that is specified under that section; distributor means— (a) a regulated distribution system operator within the meaning of the NEL; or (b) a service provider within the meaning of the NGL who owns, operates or controls a distribution pipeline that is a scheme pipeline under that Law; or (c) a nominated distributor, to the extent provided by section 12; distributor service standards means service standards imposed on distributors by or under energy laws, including, for example, service standards relating to the following— (a) the frequency and duration of supply interruptions; (b) the timely notice of planned interruptions; (c) the quality of supply (excluding frequency) for electricity (including voltage variations); (d) wrongful de-energisation; (e) timeframes for de-energisation and re-energisation; (f) being on time for appointments; (g) response times for fault calls; (h) the provision of fault information; energisation of premises means— (a) in the case of electricity—the closing of a connection; or (b) in the case of gas—the opening of a connection, in order to allow the flow of energy to the premises; energy means electricity or gas or both; energy laws includes— (a) national energy legislation; and (b) jurisdictional energy legislation; and (c) the Rules, the NER and the NGR; and (d) instruments made under this Law, the Rules, the NER and the NGR (including the Retail Market Procedures); energy marketing activity means an activity that is carried on to market, advertise or promote— (a) customer connection services; or (b) customer retail services; or (c) a supplier or prospective supplier of customer connection services or customer retail services, to a small customer; energy ombudsman means a body or person prescribed by the National Regulations as an energy ombudsman; Energy Security Board means the Energy Security Board referred to in section 2(1) of the NEL; entry criteria (in relation to retailer authorisations)—see section 90; exempt seller means a person who is exempted by the AER under Division 6 of Part 5 from the requirement to hold a retailer authorisation; explicit informed consent—see section 39; financially responsible retailer for premises means— (a) in the case of electricity—the retailer who is the financially responsible Market Participant responsible for the premises under the NER; or (b) in the case of gas—the retailer who is responsible for settling the account for gas withdrawn from the delivery point (however described) associated with the premises under the relevant Retail Market Procedures; gas means the following— (a) natural gas; (b) a natural gas equivalent; (c) a prescribed covered gas; GSL scheme means a scheme set out in energy laws under which there are distributor service standards to which an associated payment (a Guaranteed Service Level payment or GSL payment) is payable by a distributor to the customer where the distributor fails to meet the service standard; hardship customer means a residential customer of a retailer who is identified as a customer experiencing financial payment difficulties due to hardship in accordance with the retailer's customer hardship policy; hardship program indicators means the hardship program indicators under section 287; initial National Energy Retail Rules means the Initial National Energy Retail Rules made under Part 10 Division 3; innovative trial principles—see section 13A; jurisdictional energy legislation means legislation of a participating jurisdiction (other than national energy legislation), or any instrument made or issued under or for the purposes of that legislation, that regulates energy in that jurisdiction; jurisdictional gas legislation has the same meaning as in the NGL; jurisdictional regulator means a body or person that is prescribed by the National Regulations as a jurisdictional regulator; large customer—see section 5; life support equipment means life support equipment of a kind or kinds defined in the Rules; local area retailer means a retailer nominated under section 11; local instrument means a regulation, rule, order, declaration or other instrument made under an application Act, but does not include the National Regulations; Note— See also subsection (6). lower consumption threshold—see sections 5 and 6; Note— Provisions for determining and reviewing the consumption thresholds are contained in the NSW regulations. Provisions for applying the thresholds are contained in the Rules. market offer means an offer by a retailer to a small customer to provide customer retail services under a market retail contract; market offer prices means the tariffs and charges that a retailer charges a small customer for or in connection with the sale of energy to a small customer under a market retail contract; market retail contract means a customer retail contract referred to in section 33; MCE means the group of Ministers (constituting or forming part of a Ministerial Council, Standing Council of Ministers or similar body (however described)) responsible for energy matters at a national level comprising 9 Ministers as follows— (a) 1 Minister from the Commonwealth; (b) 1 Minister from each State (totalling 6 Ministers); (c) 1 Minister from each Territory (totalling 2 Ministers), acting in accordance with its own procedures; MCE directed review means a review conducted by the AEMC under Division 4 of Part 9; MCE statement of policy principles means a statement of policy principles issued by the MCE under section 14; meter identifier means— (a) in the case of electricity—the NMI; or (b) in the case of gas—the MIRN or the delivery point identifier; Minister of a participating jurisdiction—see section 10; MIRN means the meter installation registration number as defined under the relevant gas Retail Market Procedures; move-in customer means a small customer who starts consuming energy at premises without first applying to a retailer for the provision of customer retail services; national energy legislation means— (a) the national energy retail legislation; and (b) the national electricity legislation as defined in the NEL; and (c) the national gas legislation as defined in the NGL; national energy retail legislation means— (a) this Law as applying, by the application Act of a participating jurisdiction, as a law of that jurisdiction; and (b) the National Regulations; and (c) the application Act of a participating jurisdiction; and (d) the local instruments of a participating jurisdiction; national energy retail objective means the objective set out in section 13; National Energy Retail Regulations or National Regulations means the Regulations made under Part 11; National Energy Retail Rules or Rules means— (a) the initial National Energy Retail Rules; and (ab) Rules made under Part 10 Division 3 Subdivision 2; and (b) Rules made by the AEMC under this Law, including Rules that amend or revoke— (i) the initial National Energy Retail Rules or Rules made under Part 10 Division 3 Subdivision 2; or (ii) Rules made by it; natural gas has the same meaning as in the NGL; natural gas equivalent—see section 2A; negotiated connection contract means a customer connection contract that is entered into in accordance with section 78; NEL means the National Electricity Law set out in the Schedule to the National Electricity (South Australia) Act 1996 of South Australia; NER means the National Electricity Rules as in force from time to time under the NEL; network charges means charges that a distributor is entitled to charge for customer connection services— (a) for gas, under the distributor's access arrangement and Parts 12 and 12A of the NGR; and (b) for electricity, under Chapters 5A and 6 of the NER; new connection means a connection established or to be established, in accordance with energy laws, where there is no existing connection; NGL means the National Gas Law set out in the Schedule to the National Gas (South Australia) Act 2008 of South Australia; NGR means the National Gas Rules as in force from time to time under Chapter 9 of the NGL; NMI means a national metering identifier as defined in the NER; nominated distributor—see section 12; NSW regulations means regulations made under the National Energy Retail Law (Adoption) Act 2012; Note— This definition is an additional New South Wales provision. offence provision means a provision of this Law the breach or contravention of which by a person exposes that person to a finding of guilt by a court; participating jurisdiction means a jurisdiction that is a participating jurisdiction by reason of section 9; payment plan means a plan for— (a) a hardship customer; or (b) a residential customer who is not a hardship customer but who is experiencing payment difficulties, to pay a retailer, by periodic instalments in accordance with the Rules, any amounts payable by the customer for the sale and supply of energy; prepayment meter market retail contract means a market retail contract in respect of particular premises to which energy is supplied using a prepayment meter system; prepayment meter system means a device, componentry, software or other mechanism that operates to permit the flow of energy through a meter after prepayment and when activated by a card, code or some other method; prescribed covered gas means a covered gas, other than natural gas, prescribed for this definition by the National Regulations that has not, for a participating jurisdiction, been excluded by a local instrument of the jurisdiction; price comparator—see section 62; Public Register of Authorised Retailers and Exempt Sellers—see section 119; reconnection—see the definition of re-energisation; re-energisation or reconnection of premises means the energisation of the premises after their de-energisation; regulated entity means— (a) a retailer; or (b) a distributor; or (c) any other person identified in the Rules as a regulated entity; residential customer means a customer who purchases energy principally for personal, household or domestic use at premises; retail consultation procedure means the consultation procedure prescribed by the Rules; retail marketer means a retailer or an associate of a retailer; Retail Market Procedures means— (a) in the case of electricity—the Retail Market Procedures within the meaning of the NER; and (b) in the case of gas—the Retail Market Procedures within the meaning of the NGL and made under the NGR; retailer means a person who is the holder of a retailer authorisation; retailer authorisation means a retailer authorisation issued under Part 5; revocation process—see section 120; shared customer, in relation to a distributor and a retailer, means a person who is a customer of the retailer and whose premises are connected to the distributor's distribution system; short term trading market for gas has the same meaning as in the NGL; small customer—see section 5; small market offer customer Note— This definition is not applicable in New South Wales. South Australian Minister means the Minister of the Crown in right of South Australia administering Part 2 of the National Energy Retail Law (South Australia) Act 2011 of South Australia; standard complaints and dispute resolution procedures—see section 81; standard retail contract means a customer retail contract that takes effect under section 26 as a contract between a small customer and a designated retailer; standing offer—see section 22; standing offer prices means all of the tariffs and charges that a retailer charges a small customer for or in connection with the sale and supply of energy to a small customer under a standard retail contract; Territory means the Australian Capital Territory or the Northern Territory. this jurisdiction—see the definition of that term in the application Act of each participating jurisdiction; trial project means a project— (a) that— (i) the AER is satisfied is genuinely innovative taking into account the innovative trial principles (in relation to a trial waiver for a trial project); or (ii) the AEMC is satisfied is genuinely innovative taking into account the innovative trial principles (in relation to a trial Rule for the purposes of a trial project); and (b) tests an approach in relation to customer connection services or customer retail services; trial Rule—see section 235; trial waiver—see section 121C; Tribunal means the Australian Competition Tribunal referred to in the Competition and Consumer Act 2010 of the Commonwealth and includes a member of the Tribunal or a Division of the Tribunal performing functions of the Tribunal; upper consumption threshold—see sections 5 and 6; Note— Provisions for determining and reviewing the consumption thresholds are contained in the National Regulations. Provisions for applying the thresholds are contained in the Rules. (2) A reference in this Law to the sale and supply of energy includes a reference to the sale or supply of energy. (3) A reference in this Law to a customer (including a reference to a small customer or a large customer) includes a reference to a prospective customer. (4) A reference in this Law to the premises of a customer in the context of a customer retail contract or customer connection contract is a reference to the premises of the customer to which the contract relates, but does not include a reference to other premises of the customer. (5) To avoid doubt, a customer can be a residential customer in respect of particular premises and a business customer in respect of other premises. (6) The Minister responsible for administering the application Act (other than the application Act of South Australia) under which a local instrument is made is to make arrangements for notice of the making and publication of the instrument to be published for information in the South Australian Government Gazette. (6A) (Repealed) (7) A local instrument may provide that a prescribed covered gas is not a prescribed covered gas in the relevant participating jurisdiction. 2A Natural gas equivalent (1) A covered gas is a natural gas equivalent if the gas is suitable for use as natural gas and— (a) the gas has been prescribed by a local instrument for use in a jurisdiction or a specified area in the jurisdiction as a natural gas equivalent; or (b) the gas is supplied through an existing distribution system or an extension of an existing distribution system. (2) The following are not natural gas equivalents— (a) natural gas; (b) a prescribed covered gas. (3) In this section— existing distribution system means a distribution system that— (a) on the NGL extension date was a natural gas distribution system; and (b) after the NGL extension date is authorised to haul a covered gas, other than natural gas or a prescribed covered gas; NGL extension date means the date on which the Statutes Amendment (National Energy Laws) (Other Gases) Act 2023 commenced. 3 Application of Law, National Regulations and Rules in this jurisdiction This Law, the National Regulations and the Rules apply in this jurisdiction except to the extent provided by or under the application Act of this jurisdiction or any other Act of this jurisdiction. Note— This Law, the National Regulations and the Rules are, in their application to a jurisdiction, to be read in conjunction with the application Act and jurisdictional energy legislation of the jurisdiction. 3A Application to prescribed covered gas The National Regulations may modify the way that this Law, the National Regulations and the Rules apply to a prescribed covered gas. 3AZ Application of Law to sale of electricity Insofar as this Law applies to electricity, this Law, subject to the NSW regulations, applies only in relation to the sale of electricity to customers whose premises are connected, or are to be connected, to the national electricity system within the meaning of the NEL. Note— This section is an additional New South Wales provision. 3B Exemptions from Law (1) The NSW regulations may exempt, or provide for the exemption of, any area or person from any or all of the provisions of this Law. (2) An exemption under this section may be made subject to conditions. Note— This section is an additional New South Wales provision. 4 Meaning of civil penalty provision and conduct provision (1) A civil penalty provision is— (a) a provision of this Law specified in the Table at the foot of this subsection; or (b) a provision of this Law (other than an offence provision) or the Rules that is prescribed by the National Regulations to be a civil penalty provision. Provision Section heading Section 20(2) Kinds of customer retail contracts Section 22(1) and (3) Obligation to make offer to small customers Section 23(1) Standing offer prices Section 25(1) Adoption of form of standard retail contract Section 27 Obligation to comply with standard retail contract Section 38 Requirement for explicit informed consent for certain transactions Section 43(2) and (3)(b) Customer hardship policies Section 50(1) Payment plans Section 53(2) Energy Marketing Rules Section 57 Contractual arrangements for use of prepayment meter systems Section 59(1) Persons on life support equipment Section 63 AER information gathering powers for pricing guidelines and comparator Section 66 Obligation to provide customer connection services Section 69(1) Adoption of form of deemed standard connection contract Section 71(1) Obligations to comply with deemed standard connection contract and to bill retailer Section 88 Requirement for authorisation or exemption Section 103(8) Deciding transfer application Section 105(9) Surrender of retailer authorisation Section 106 Transfer of customers following surrender Section 108 Transfer of customers following revocation Section 112(2) Conditions Section 120(11) Revocation process—retailer authorisations and exemptions Section 143(2)(a) Compliance requirements following service of RoLR notice Section 156 Compliance with RoLR regulatory information notices Section 274(1) Obligation of regulated entities to provide information and data about compliance Section 276(1), (2) and (4) Compliance audits by regulated entities Section 282(1) Obligation of regulated entities to provide information and data about performance (2) A conduct provision is a provision of this Law (other than an offence provision) or the Rules that is prescribed by the National Regulations to be a conduct provision. 4A Civil penalty amounts for breaches of civil penalty provisions (1) Subject to this section, the civil penalty for a breach of a civil penalty provision is— (a) in the case of a breach of a civil penalty provision, other than a provision prescribed under paragraph (b) or (c)— (i) if the breach is by a natural person— (A) an amount not exceeding $33 900; plus (B) an amount not exceeding $3 390 for every day during which the breach continues; (ii) if the breach is by a body corporate— (A) an amount not exceeding $170 000; plus (B) an amount not exceeding $17 000 for every day during which the breach continues; or (b) in the case of a breach of a civil penalty provision prescribed by the National Regulations for the purposes of this paragraph— (i) if the breach is by a natural person— (A) an amount not exceeding $287 000; plus (B) an amount not exceeding $14 400 for every day during which the breach continues; (ii) if the breach is by a body corporate— (A) an amount not exceeding $1 435 000; plus (B) an amount not exceeding $71 800 for every day during which the breach continues; or (c) in the case of a breach of a civil penalty provision prescribed by the National Regulations for the purposes of this paragraph— (i) if the breach is by a natural person—an amount not exceeding $500 000; (ii) if the breach is by a body corporate—an amount not exceeding the greater of the following— (A) $10 000 000; (B) if the Court can determine the value of any benefit reasonably attributable to the breach of the civil penalty provision that the body corporate, and any body corporate related to the body corporate, has obtained, directly or indirectly—3 times the value of that benefit; (C) if the Court cannot determine the value of the benefit—10% of the annual turnover of the body corporate during the 12-month period ending at the end of the month in which the body corporate breached, or began breaching, the civil penalty provision. Note— See section 300A, which provides for the amounts specified in this subsection to be adjusted every 3 years to reflect movements in the consumer price index. The adjusted amounts are published on the AER's website. (2) Subsection (1)(c)(ii)(B) or (C) will only apply in a particular case if the AER, in applying for an order under section 291(2)(a), requests that those provisions be applied in that particular case. 5 Meaning of customer and associated terms (1) A customer is a person— (a) to whom energy is sold for premises by a retailer; or (b) who proposes to purchase energy for premises from a retailer. (2) A small customer is a customer— (a) who is a residential customer; or (b) who is a business customer who consumes energy at business premises below the upper consumption threshold. (3) A large customer is a business customer who consumes energy at business premises at or above the upper consumption threshold. (4) Note— This subsection is not applicable in New South Wales. 6 Provisions relating to consumption thresholds for business customers (1) This section applies for the purposes of the consumption thresholds referred to in section 5. (2) The NSW regulations may— (a) determine or make provision for determining the upper consumption thresholds and lower consumption thresholds for business customers; and (b) prescribe a procedure for reviewing consumption thresholds so determined. (3) The upper consumption thresholds may apply (in relation to the provision of customer retail services to a business customer) on the basis of an aggregation of 2 or more business premises of a business customer in accordance with the Rules. (4) Without limitation— (a) NSW regulations made for the purposes of subsection (2); and (b) Rules made for the purposes of subsection (3), may differ in their application to different classes of business customers or different regulatory requirements, or both. 7 Classification and reclassification of customers The Rules may make provision for or with respect to the classification and reclassification of customers, including, for example— (a) whether a person is a residential customer by reference to whether the person purchases energy principally for personal, household or domestic use at premises; or (b) whether a business customer is a small customer or a large customer; or (c) whether a business customer is a small market offer customer. 7A Related bodies corporate For the purposes of this Law, 2 or more bodies corporate are related to each other if they are related bodies corporate within the meaning of the Corporations Act 2001 of the Commonwealth. 8 Interpretation generally (1) Schedule 2 to the NGL applies to this Law, the National Regulations and the Rules and any other statutory instrument made under this Law in the same way as it applies to the NGL and the regulations, rules and any other statutory instruments made under the NGL. (2) For that purpose— (a) (without limiting subsection (1)) a reference in that Schedule to the NGL or NGR (however expressed) is taken to be a reference to this Law or the Rules respectively; and (b) clauses 2, 29, 40(3) and 52, and Part 7 of that Schedule are taken to be omitted; and (c) the definition of business day in clause 10 is taken to be omitted. Note— See section 320 of this Law which applies instead of clauses 2 and 52 of Schedule 2 to the NGL. 8A Savings and transitionals Schedule 1 has effect. Division 2 Matters relating to participating jurisdictions 9 Participating jurisdictions (1) The following jurisdictions are participating jurisdictions for the purposes of this Law— (a) the State of South Australia; and (b) the Commonwealth, a Territory or a State (other than South Australia) if there is in force, as part of the law of that jurisdiction, a law that applies this Law or any part of this Law (whether by a law that corresponds to Part 2 of the National Energy Retail Law (South Australia) Act 2011 of South Australia or by some other law). (2) If a law of a participating jurisdiction referred to in subsection (1)(b) ceases to be in force, the jurisdiction ceases to be a participating jurisdiction. 10 Ministers of participating jurisdictions The Ministers of the participating jurisdictions are— (a) the South Australian Minister; and (b) the Ministers of the Crown in right of the other participating jurisdictions administering the laws of those jurisdictions that apply this Law or any part of this Law (whether by a law that corresponds to Part 2 of the National Energy Retail Law (South Australia) Act 2011 of South Australia or by some other law). (c) (Repealed) 11 Local area retailers (1) The regulations under the application Act of a participating jurisdiction must nominate a retailer as a local area retailer for that jurisdiction for the purposes of this Law. (2) One or more retailers may be nominated for a jurisdiction. (3) A nomination of a retailer may be made for any or all of the following— (a) the whole or a specified part of the geographical area of a jurisdiction; (b) specified premises or a specified class of premises; (c) specified customers or a specified class of customers. (4) A nomination of a retailer may relate to 1 or more of the following— (a) electricity; (b) natural gas and natural gas equivalents; (c) 1 or more types of prescribed covered gas. 12 Nominated distributors (1) The regulations under an application Act of a participating jurisdiction may nominate an entity (being an entity that is licensed or otherwise authorised under jurisdictional energy legislation of that jurisdiction) to provide customer connection services as a nominated distributor for the purposes of this Law. (2) A nomination of an entity may be made for any or all of the following— (a) the whole or a specified part of the geographical area of a jurisdiction; or (b) the whole or a specified part of a distribution system that is owned, controlled or operated by the entity. (3) A nomination of an entity has the effect of applying this Law and the Rules (in whole or in part as specified in the regulations and with any specified modifications) to the entity as if it were a distributor within the meaning of this Law, and references in this Law and the Rules to a distributor are accordingly taken to include references to the nominated distributor. Division 3 National energy retail objective and policy principles 13 National energy retail objective The objective of this Law is to promote efficient investment in, and efficient operation and use of, energy services for the long term interests of consumers of energy with respect to— (a) price, quality, safety, reliability and security of supply of energy; and (b) the achievement of targets set by a participating jurisdiction— (i) for reducing Australia's greenhouse gas emissions; or (ii) that are likely to contribute to reducing Australia's greenhouse gas emissions. Note— The AEMC must publish targets in a targets statement: see section 224A. 13AA National Regulations may prescribe matters for national energy retail objective Without limiting Part 11 of this Law, the National Regulations may make provision about a matter relating to the achievement of targets mentioned in section 13(b). 13A Innovative trial principles The following principles (the innovative trial principles) must be taken into account in determining whether a trial project is genuinely innovative in connection with granting a trial waiver or making a trial Rule relating to a trial project— (a) whether the trial project is focused on developing new or materially improved customer connection services or customer retail services; (b) whether the trial project is likely to contribute to the achievement of the national energy retail objective; (c) whether the trial project is able to demonstrate a reasonable prospect of giving rise to materially improved services and outcomes for consumers of energy; (d) whether the trial project maintains adequate consumer protections, including whether the trial project may involve risks to consumers and (if so), how those risks might be mitigated; (e) whether the trial project is unable to proceed under the existing regulatory framework; (f) whether the trial project has moved beyond research and development stages but is not yet established, or of sufficient maturity, size or otherwise commercially ready, to attract investment; (g) whether the trial project may negatively impact on AEMO's operation of national energy systems and national energy markets or AEMO's facilitation of customer connection services and customer retail services and, if there are impacts, how those impacts can be mitigated; (h) whether the trial project may impact on competition in a competitive sector of a national energy market; (ha) whether the licences, authorisations and consents required for the trial project under jurisdictional gas legislation have been obtained or will be obtained; (i) any other principle prescribed by the National Regulations. 14 MCE statements of policy principles (1) Subject to this section, the MCE may issue a statement of policy principles in relation to any matters that are relevant to the performance and exercise by the AEMC of its functions and powers in— (a) making a Rule; or (b) conducting a review under section 232. (2) Before issuing a statement of policy principles, the MCE must be satisfied that the statement is consistent with the national energy retail objective. (3) As soon as practicable after issuing a statement of policy principles, the MCE must give a copy of the statement to the AEMC. (4) The AEMC must publish the statement in the South Australian Government Gazette and on its website as soon as practicable after it is given a copy of the statement. Division 4 Operation and effect of National Energy Retail Rules 15 Rules to have force of law The National Energy Retail Rules have the force of law in this jurisdiction. Division 5 Application of this Law and the Rules to forms of energy 16 Application of Law and Rules to energy (1) This Law and the Rules apply to— (a) the sale and supply to customers of 1 or more of the following— (i) electricity; (ii) natural gas or natural gas equivalents, or both; (iii) 1 or more types of prescribed covered gas; and (b) a retailer to the extent that the retailer sells 1 or more of the following— (i) electricity; (ii) natural gas or natural gas equivalents, or both; (iii) 1 or more types of prescribed covered gas; and (c) a distributor to the extent that the distributor supplies 1 or more of the following— (i) electricity; (ii) natural gas or natural gas equivalents, or both; (iii) 1 or more types of prescribed covered gas. (2) References in this Law and the Rules to energy are to be construed accordingly. (3) Nothing in this section affects the application of provisions of this Law or the Rules to persons who are neither retailers nor distributors. Division 6 Miscellaneous 17 Extraterritorial operation of Law It is the intention of the Parliament of this jurisdiction that the operation of this Law is to, as far as possible, include operation in relation to the following— (a) things situated in or outside the territorial limits of this jurisdiction; (b) acts, transactions and matters done, entered into or occurring in or outside the territorial limits of this jurisdiction; (c) things, acts, transactions and matters (wherever situated, done, entered into or occurring) that would, apart from this Law, be governed or otherwise affected by the law of another jurisdiction. 18 Law binds the State (1) This Law binds the State. (2) In this section— State means the Crown in right of this jurisdiction, and includes— (a) the Government of this jurisdiction; and (b) a Minister of the Crown in right of this jurisdiction; and (c) a statutory corporation, or other entity, representing the Crown in right of this jurisdiction. Part 2 Relationship between retailers and small customers Division 1 Preliminary 19 Application of this Part (1) This Part applies to the relationship between retailers and small customers. (2) This Part, other than Division 12, does not apply to or affect the relationship between retailers and large customers. (3) This Part does not apply to business customers of a retailer who aggregate 2 or more business premises in accordance with the Rules. Division 2 Customer retail contracts generally 20 Kinds of customer retail contracts (1) There are 2 kinds of customer retail contracts, as follows— (a) standard retail contracts; (b) market retail contracts. (2) A retailer cannot provide customer retail services to small customers under any other kind of contract or arrangement. Note— This subsection is a civil penalty provision. (3) This section does not affect deemed customer retail arrangements under Division 9. (4) This section does not affect RoLR deemed small customer retail arrangements under Part 6. Division 3 Standing offers and standard retail contracts for small customers 21 Model terms and conditions The Rules must set out model terms and conditions for standard retail contracts (referred to in this Division as the model terms and conditions). 22 Obligation to make offer to small customers (1) A retailer must make an offer (a standing offer) to provide customer retail services to small customers for whom it is the designated retailer— (a) at the standing offer prices; and (b) under the retailer's form of standard retail contract. Note— This subsection is a civil penalty provision. (1a) If— (a) a small customer has an interval meter; and (b) a local instrument of this jurisdiction declares that this subsection applies in relation to this jurisdiction, then a retailer's standing offer must include— (c) such tariff structures as may be prescribed by local instrument; or (d) if and to the extent that a local instrument declares such Rules to apply—such tariff structures as may be prescribed by the National Energy Retail Rules in connection with the operation of this subsection. (1b) In connection with the operation of subsection (1a), a local instrument applying under subsection (1a)(c) or the Rules applying under subsection (1a)(d) may include provisions that will allow a small customer to elect that a certain specified tariff will, or will not, apply in relation to the customer. (2) The Rules may provide for the manner and form in which a standing offer is to be made. (3) Without limiting the power to make Rules relating to the manner and form in which a standing offer is to be made, a designated retailer must publish the terms and conditions of the standing offer on the retailer's website. Note— This subsection is a civil penalty provision. (4) A designated retailer must comply with the terms and conditions of the retailer's standing offer. (5) A designated retailer is not obliged to make a standing offer to a small customer if the customer's premises are not, or are not proposed to be, connected to a distributor's distribution system. (6) In this section— interval energy data means interval energy data as defined in the NER; interval meter means a meter that measures and records interval energy data. Note— Section 31 provides for the satisfaction of a designated retailer's obligation to make a standing offer by making an offer to certain small customers to sell energy under a market retail contract. 23 Standing offer prices (1) Publication of standing offer prices A retailer must publish its standing offer prices on its website, and the standing offer prices so published remain in force until varied in accordance with this section. Notes— 1 A standing offer price may be a regulated price under jurisdictional energy legislation. 2 This subsection is a civil penalty provision. (2) Variation of standing offer prices A retailer may vary the standing offer prices from time to time, but a variation has no effect unless— (a) it is made in accordance with the requirements (if any) of jurisdictional energy legislation; and (b) the variation (or the standing offer prices as varied) is published on the retailer's website. (3) Publication and notification of variation A retailer must— (a) publish the variation (or the standing offer prices as varied) on the retailer's website; and (b) publish a notice about the variation in a newspaper circulating in the participating jurisdictions in which the retailer has small customers, notifying customers that— (i) there has been a variation; and (ii) the variation (or the standing offer prices as varied) is published on the retailer's website; and (c) inform each affected customer of the variation when the retailer sends the next bill to the customer. (4) Commencement of variation on specified date Unless subsection (5) applies, a variation of the standing offer prices takes effect on and from the date specified in the variation. (5) Limitations on commencement of variation A variation of the standing offer prices takes effect— (a) if the date specified in the variation is before or within the period of 6 months starting with the date the last variation took effect (or, if the standing offer prices have not previously been varied, the period of 6 months since the date of publication of the standing offer prices)—on the date that immediately follows the 6-month period; or (b) if the date specified in the variation is before or within the period of 10 business days starting with the first business day after the date on which the variation was published—on the date that immediately follows the 10-day period. If both paragraphs (a) and (b) are applicable and the dates mentioned in those paragraphs are different, the variation takes effect on the later of those dates. Note— A retailer is not subject to subsection (5) in respect of a variation of its standing offer prices as a result of a RoLR cost recovery scheme under Part 6 (see section 167(6)). (6) Notification to AER A retailer must, as soon as practicable, notify the AER of details of the standing offer prices and any variation of the standing offer prices in the manner and form required by the AER Retail Pricing Information Guidelines. (7) Publication by AER The AER must, as soon as practicable after being notified by a retailer, publish the standing offer prices or any variation of the standing offer prices on the AER's website, but failure to do so does not affect the operation or effect of the standing offer prices or any variation. 24 Presentation of standing offer prices (1) A retailer must— (a) present its standing offer prices (including any variation of those prices) in accordance with the AER Retail Pricing Information Guidelines; and (b) without limitation, present those prices in accordance with those guidelines when publishing, advertising or notifying the AER of those prices or any variation. (2) The retailer must present its standing offer prices (including any variation of those prices) prominently on its website and in any other relevant material provided by the retailer in accordance with those guidelines. Note— See section 61 for the AER Retail Pricing Information Guidelines. 25 Adoption of form of standard retail contract (1) Adoption and publication A retailer must adopt a form of standard retail contract and publish it on the retailer's website. Note— This subsection is a civil penalty provision. (2) Rules The Rules may make provision for or with respect to the adoption, form and contents of forms of standard retail contracts, and in particular may provide for the manner of adoption and publication of forms of standard retail contracts by retailers. (3) Adoption without alteration except as permitted or required A retailer's form of standard retail contract— (a) must adopt the relevant model terms and conditions with no alterations, other than permitted alterations or required alterations; and (b) if there are any required alterations—must include those required alterations. (4) Permitted alterations Permitted alterations are— (a) alterations specifying details relating to identity and contact details of the retailer; and (b) minor alterations that do not change the substantive effect of the model terms and conditions; and (c) alterations of a kind specified or referred to in the Rules. (5) Required alterations Required alterations are— (a) alterations that the Rules require to be made to the retailer's form of standard retail contract in relation to matters relating to specific jurisdictions; and (b) alterations of a kind specified or referred to in the Rules. (6) Definition In this section— alterations includes omissions and additions. 26 Formation of standard retail contract (1) A designated retailer's form of standard retail contract takes effect as a contract between the retailer and a small customer when the customer— (a) requests the provision of customer retail services at premises under the retailer's standing offer; and (b) complies with the requirements specified in the Rules as pre-conditions to the formation of standard retail contracts. (2) A designated retailer cannot decline to enter into a standard retail contract if the customer makes the request and complies with the requirements referred to in subsection (1). 27 Obligation to comply with standard retail contract A designated retailer must comply with the obligations imposed on the retailer under the terms and conditions of a standard retail contract between the retailer and a small customer. Note— This section is a civil penalty provision. 28 Variation of standard retail contract (1) Variation of form of standard retail contract—permitted alterations A retailer may vary the terms and conditions of the retailer's form of standard retail contract by making permitted alterations. (2) Variation of form of standard retail contract—required alterations A retailer must vary the terms and conditions of the retailer's form of standard retail contract by making required alterations, and must do so by the date specified in the relevant Rule referred to in section 237(4). (3) Permitted alterations Permitted alterations are— (a) alterations specifying details relating to identity and contact details of the retailer; and (b) minor alterations that do not change the substantive effect of the model terms and conditions; and (c) alterations of a kind specified or referred to in the Rules. (4) Required alterations Required alterations are— (a) alterations that the Rules require to be made to the retailer's form of standard retail contract in relation to matters relating to specific jurisdictions; and (b) alterations to a term or condition that is already adopted by the retailer so as to make the adopted term or condition consistent with the model terms and conditions as currently required by the Rules; and (c) alterations of a kind specified or referred to in the Rules. (5) When variation takes effect on existing contracts A variation of the retailer's form of standard retail contract takes effect as a variation of an existing standard retail contract between the retailer and a customer on and from the date on which the retailer publishes the variation on the retailer's website or a later date specified in the published variation. (6) Definition In this section— alterations includes omissions and additions. 29 Standard retail contract to be consistent with model terms and conditions (1) The terms and conditions (whether original or varied) of a standard retail contract have no effect to the extent of any inconsistency with the model terms and conditions as currently in force and any required alterations. (2) If there is such an inconsistency, the model terms and conditions or required alterations (as the case requires) apply instead to the extent of the inconsistency. 30 Duration of standard retail contract A standard retail contract between a designated retailer and a small customer for the provision of customer retail services to the premises of the small customer remains in force until the standard retail contract is terminated in accordance with this Law, the Rules or the contract. 31 Note— This section is not applicable in New South Wales. 32 Rules Without limiting the power to make Rules, the Rules may make provision for or with respect to standard retail contracts generally, including but not limited to the following— (a) procedures for small customers requesting the provision of customer retail services in accordance with the standing offer; (b) information that retailers may require of small customers requesting the provision of customer retail services in accordance with the standing offer; (c) the responsibilities of retailers in responding to requests for the provision of customer retail services in accordance with the standing offer; (d) the conditions to be complied with by small customers in respect of the formation of standard retail contracts. Division 4 Market retail contracts for small customers 33 Formation of market retail contracts A small customer and a retailer may, subject to and in accordance with this Division and section 147, negotiate and enter into a market retail contract for the provision of— (a) customer retail services; and (b) any other services, as agreed between the small customer and the retailer. 34 Minimum requirements for market retail contracts (1) The Rules may set out— (a) minimum requirements that are to apply in relation to small customers who purchase energy under a market retail contract; and (b) minimum requirements that are to apply in relation to the terms and conditions of market retail contracts. (2) A retailer must ensure that the terms and conditions of a market retail contract are not inconsistent with the applicable minimum requirements set out in the Rules. However, this subsection does not prevent a higher level of service than those minimum requirements from being provided. (3) A market retail contract may contain terms and conditions dealing with other matters, other than terms or conditions that the Rules provide must not be included in the contract. (4) A market retail contract must contain additional terms or conditions that the Rules require to be included in the contract in relation to matters relating to specific jurisdictions. (5) A retailer who sells energy to a small customer under a market retail contract must comply with the requirements of the Rules referred to in subsection (1). 35 Variation of market retail contract Any variation of the terms and conditions of a market retail contract must not be inconsistent with the requirements of the Rules in relation to the variation of market retail contracts. 36 Market retail contract to be consistent with minimum requirements of the Rules (1) The terms and conditions (whether original or varied) of a market retail contract have no effect to the extent of any inconsistency with any relevant minimum requirements of the Rules as currently in force. (2) If there is such an inconsistency, the minimum requirements apply instead to the extent of the inconsistency (unless the terms and conditions provide for a higher level of service to the customer). 37 Presentation of market offer prices (1) A retailer must— (a) present its market offer prices (including any variation of those prices) in accordance with the AER Retail Pricing Information Guidelines; and (b) without limitation, present those prices in accordance with those guidelines when publishing, advertising or notifying the AER of those prices or any variation. (2) The retailer must present its market offer prices (including any variation of those prices) prominently on its website and in any other relevant material provided by the retailer in accordance with those guidelines. Note— See section 61 for the AER Retail Pricing Information Guidelines. Divisions 4A, 4B 37AA–37E (Repealed) Division 5 Explicit informed consent 38 Requirement for explicit informed consent for certain transactions A retailer must obtain the explicit informed consent of a small customer for the following transactions— (a) except as provided by sections 103(7), 105(8) and under Part 6, the transfer of the customer to the retailer from another retailer; (b) the entry by the customer into a market retail contract with the retailer; (c) without limiting paragraph (b), the entry by the customer into a prepayment meter market retail contract with the retailer; (d) other transactions specified in this Law or the Rules as requiring explicit informed consent. Notes— 1 See section 41 for the consequences of not obtaining explicit informed consent as required. 2 This section is a civil penalty provision. 39 Nature of explicit informed consent (1) Explicit informed consent to a transaction is consent given by a small customer to a retailer where— (a) the retailer, or a person acting on behalf of the retailer, has clearly, fully and adequately disclosed all matters relevant to the consent of the customer, including each specific purpose or use of the consent; and (b) the customer gives the consent to the transaction in accordance with subsection (2); and (c) any requirements prescribed by the Rules for the purposes of this subsection have been complied with. (2) Explicit informed consent requires the consent to be given by the small customer— (a) in writing signed by the customer; or (b) verbally, so long as the verbal consent is evidenced in such a way that it can be verified and made the subject of a record under section 40; or (c) by electronic communication generated by the customer. 40 Record of explicit informed consent (1) A retailer must— (a) create a record of each explicit informed consent required by this Division and provided by a small customer; and (b) retain the record for at least 2 years. (2) The record must be in such a format and include such information as will enable— (a) the AER to verify the retailer's compliance with the relevant requirements of this Part and the Rules relating to explicit informed consent; and (b) the retailer to answer enquiries from a small customer relating to the customer's explicit informed consent. (3) A retailer must, on request by a small customer and at no charge, provide the customer with access to a copy of the record of any explicit informed consent given by the customer and then retained by the retailer. 41 No or defective explicit informed consent (1) A transaction referred to in section 38 between a retailer and small customer is void if it is established, in accordance with subsection (2) and any applicable provisions of the Rules, that explicit informed consent as required by this Division was not obtained. (2) It is established that the required explicit informed consent was not obtained if— (a) the customer raises the issue with the retailer either by asserting that the consent was not obtained or by requesting production of a record of the consent; and (b) the issue is so raised within 12 months after the date of the transaction; and (c) the retailer— (i) admits that the consent was not obtained; or (ii) does not produce a satisfactory record of the informed consent as soon as practicable, but withi