National Energy Retail Law (NSW)

This Law may be cited as the National Energy Retail Law (NSW).

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 decision whether to grant, vary or revoke an individual exemption;

a decision whether to impose, vary or revoke conditions on an individual exemption;

a decision whether to make, vary or revoke a determination specifying deemed exemptions or registrable exemptions, including any associated conditions;

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—

the AER performance regime under Division 2 of Part 12;

a retailer authorisation under Part 5;

an AER exempt selling regulatory function or power;

the AER Retail Pricing Information Guidelines and price comparator;

approval of deemed AER approved standard connection contracts under Division 5 of Part 3;

the RoLR scheme under Part 6;

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—

an employee or agent of the retailer or distributor; and

a person contracted by the retailer or distributor; and

a person who receives or is contracted to receive commissions from the retailer or distributor;

billing standards, for Part 5, Division 6A—see section 116A;

Note—

This definition is an additional New South Wales provision.

business customer means a customer who is not a residential customer;

business day means a day that is not—

a Saturday or Sunday; or

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—

without provision in that contract for the terms and conditions to apply after expiry or termination for the continued provision of those services; and

without applying to a retailer for the provision (after that expiry or termination) of those services;

centralised air-conditioning means a centralised system operated by an embedded network operator for the distribution of heated or cooled air to embedded network customers;

Note—

This definition is an additional New South Wales provision.

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 liability for a civil penalty; or

an infringement penalty under provisions applied by this Law; or

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—

where this Law applies as a law of the Commonwealth, the Federal Court;

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 service relating to a new connection for the premises;

a service relating to a connection alteration for the premises;

a supply service for the premises, including (but not limited to) the energisation, de-energisation or re-energisation of the premises;

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—

in the case of electricity—the opening of a connection; or

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—

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

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—

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

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

for a nominated distributor under section 12—the nominated distribution system that is specified under that section;

distributor means—

a regulated distribution system operator within the meaning of the NEL; or

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

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—

the frequency and duration of supply interruptions;

the timely notice of planned interruptions;

the quality of supply (excluding frequency) for electricity (including voltage variations);

wrongful de-energisation;

timeframes for de-energisation and re-energisation;

being on time for appointments;

response times for fault calls;

the provision of fault information;

embedded network has the same meaning as in the NER;

Note—

This definition is an additional New South Wales provision.

embedded network commodity means the following if supplied through an embedded network—

energy;

hot water;

centralised air-conditioning;

Note—

This definition is an additional New South Wales provision.

embedded network customer—see section 2AA;

Note—

This definition is an additional New South Wales provision.

embedded network operator means a person who operates an embedded network that delivers embedded network commodities sold by embedded network sellers.

Note—

This definition is an additional New South Wales provision.

embedded network seller means a person who sells an embedded network commodity to an embedded network customer;

Note—

This definition is an additional New South Wales provision.

energisation of premises means—

in the case of electricity—the closing of a connection; or

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—

national energy legislation; and

jurisdictional energy legislation; and

the Rules, the NER and the NGR; and

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—

customer connection services; or

customer retail services; or

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—

in the case of electricity—the retailer who is the financially responsible Market Participant responsible for the premises under the NER; or

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—

natural gas;

a natural gas equivalent;

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;

IPART, for Part 5, Division 6A—see section 116A;

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—

1 Minister from the Commonwealth;

1 Minister from each State (totalling 6 Ministers);

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—

in the case of electricity—the NMI; or

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—

the national energy retail legislation; and

the national electricity legislation as defined in the NEL; and

the national gas legislation as defined in the NGL;

national energy retail legislation means—

this Law as applying, by the application Act of a participating jurisdiction, as a law of that jurisdiction; and

the National Regulations; and

the application Act of a participating jurisdiction; and

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—

the initial National Energy Retail Rules; and

Rules made under Part 10 Division 3 Subdivision 2; and

Rules made by the AEMC under this Law, including Rules that amend or revoke—

the initial National Energy Retail Rules or Rules made under Part 10 Division 3 Subdivision 2; or

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—

for gas, under the distributor’s access arrangement and Parts 12 and 12A of the NGR; and

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 hardship customer; or

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 retailer; or

a distributor; or

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—

in the case of electricity—the Retail Market Procedures within the meaning of the NER; and

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—

that—

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

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

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.

A reference in this Law to the sale and supply of energy includes a reference to the sale or supply of energy.

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.

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.

To avoid doubt, a customer can be a residential customer in respect of particular premises and a business customer in respect of other premises.

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.

(Repealed)

A local instrument may provide that a prescribed covered gas is not a prescribed covered gas in the relevant participating jurisdiction.

The following persons are embedded network customers—

a person who uses one or more embedded network commodities in the person’s residential premises;

a person whose consumption of the following is not more than the upper consumption threshold prescribed by the regulations for the type of energy—

energy supplied through an embedded network;

energy used to create an embedded network commodity.

Despite subsection (1), a person is not an embedded network customer, for the use of electricity, if the person—

occupies premises with a metering installation for which an NMI has been issued; and

is billed for electricity by an authorised retailer of the person’s choice; and

retains the ability to switch electricity supply to another authorised retailer of the person’s choice.

In this section—

metering installation has the same meaning as in the National Electricity Rules.

Note—

This section is an additional New South Wales provision.

A covered gas is a natural gas equivalent if the gas is suitable for use as natural gas and—

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

the gas is supplied through an existing distribution system or an extension of an existing distribution system.

The following are not natural gas equivalents—

natural gas;

a prescribed covered gas.

In this section—

existing distribution system means a distribution system that—

on the NGL extension date was a natural gas distribution system; and

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.

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.

The National Regulations may modify the way that this Law, the National Regulations and the Rules apply to a prescribed covered gas.

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.

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.

An exemption under this section may be made subject to conditions.

Note—

This section is an additional New South Wales provision.

A civil penalty provision is—

a provision of this Law specified in the Table at the foot of this subsection; or

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

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.

Subject to this section, the civil penalty for a breach of a civil penalty provision is—

in the case of a breach of a civil penalty provision, other than a provision prescribed under paragraph (b) or (c)—

if the breach is by a natural person—

an amount not exceeding $33 900; plus

an amount not exceeding $3 390 for every day during which the breach continues;

if the breach is by a body corporate—

an amount not exceeding $170 000; plus

an amount not exceeding $17 000 for every day during which the breach continues; or

in the case of a breach of a civil penalty provision prescribed by the National Regulations for the purposes of this paragraph—

if the breach is by a natural person—

an amount not exceeding $287 000; plus

an amount not exceeding $14 400 for every day during which the breach continues;

if the breach is by a body corporate—

an amount not exceeding $1 435 000; plus

an amount not exceeding $71 800 for every day during which the breach continues; or

in the case of a breach of a civil penalty provision prescribed by the National Regulations for the purposes of this paragraph—

if the breach is by a natural person—an amount not exceeding $500 000;

if the breach is by a body corporate—an amount not exceeding the greater of the following—

$10 000 000;

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;

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.

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.

A customer is a person—

to whom energy is sold for premises by a retailer; or

who proposes to purchase energy for premises from a retailer.

A small customer is a customer—

who is a residential customer; or

who is a business customer who consumes energy at business premises below the upper consumption threshold.

A large customer is a business customer who consumes energy at business premises at or above the upper consumption threshold.

Note—

This subsection is not applicable in New South Wales.

This section applies for the purposes of the consumption thresholds referred to in section 5.

The NSW regulations may—

determine or make provision for determining the upper consumption thresholds and lower consumption thresholds for business customers; and

prescribe a procedure for reviewing consumption thresholds so determined.

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.

Without limitation—

NSW regulations made for the purposes of subsection (2); and

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.