Australian Energy Market Commission Establishment Act 2004

This Act may be cited as the Australian Energy Market Commission Establishment Act 2004.

In this Act, unless the contrary intention appears—

AEMC means the Australian Energy Market Commission established under section 5;

AEMO means the Australian Energy Market Operator Limited (ACN 072 010 327);

Chairperson means the Commissioner appointed to be Chairperson of the AEMC under section 12;

Commissioner means the Chairperson or another Commissioner appointed to the AEMC under section 12;

eligible MCE Minister means a Minister of the MCE eligible to vote on a question arising for decision by the MCE, in accordance with its procedures;

Jurisdictional Energy Law means a law of the Commonwealth, or a State or Territory of the Commonwealth, that relates to energy and is prescribed by regulation for the purposes of this definition;

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;

National Electricity Application Act means—

the National Electricity (South Australia) Act 1996; or

the Electricity (National Scheme) Act 1997 of the Australian Capital Territory; or

the National Electricity (New South Wales) Act 1997 of New South Wales; or

the Electricity - National Scheme (Queensland) Act 1997 of Queensland; or

the Electricity - National Scheme (Tasmania) Act 1999 of Tasmania; or

the National Electricity (Victoria) Act 1997 of Victoria; or

an Act of the Commonwealth, or any other State or Territory of the Commonwealth, that applies the National Electricity Law as a law of that jurisdiction;

National Electricity Law means the National Electricity Law as applied by a National Electricity Application Act;

National Electricity Regulations means the National Electricity (South Australia) Regulations as applied by a National Electricity Application Act;

National Electricity Rules means the National Electricity Rules as defined in section 2 of the National Electricity Law;

National Energy Law means—

a National Electricity Application Act; or

the National Electricity Law; or

the National Electricity Regulations; or

the National Electricity Rules; or

a National Gas Application Act; or

the National Gas Law; or

the National Gas Regulations; or

the National Gas Rules; or

a National Energy Retail Law Application Act; or

the National Energy Retail Law; or

the National Energy Retail Regulations; or

the National Energy Retail Rules;

National Energy Retail Law Application Act means—

the National Energy Retail Law (South Australia) Act 2011; or

any other Act of a State or Territory of the Commonwealth that applies the National Energy Retail Law set out in the Schedule to the National Energy Retail Law (South Australia) Act 2011, with or without modification and whether as in force at a particular time or as in force for the time being, as a law of that jurisdiction;

National Energy Retail Law means the National Energy Retail Law set out in the Schedule to the National Energy Retail Law (South Australia) Act 2011 applying as a law of South Australia or as applied, with or without modification and whether as in force at a particular time or as in force for the time being, as a law of another jurisdiction;

National Energy Retail Regulations means the National Energy Retail Regulations as defined in section 2 of the National Energy Retail Law;

National Energy Retail Rules means the National Energy Retail Rules as defined in section 2 of the National Energy Retail Law;

National Gas Application Act means—

the National Gas (South Australia) Act 2008; or

the Australian Energy Market Act 2004 of the Commonwealth; or

any other Act of a State or Territory of the Commonwealth that applies the National Gas Law set out in the Schedule to the National Gas (South Australia) Act 2008, with or without modification and whether as in force at a particular time or as in force for the time being, as a law of that jurisdiction;

National Gas Law means the National Gas Law set out in the Schedule to the National Gas (South Australia) Act 2008 applying as a law of South Australia or as applied, with or without modification and whether as in force at a particular time or as in force for the time being, as a law of another jurisdiction;

National Gas Regulations means regulations that, under a National Gas Application Act, apply as regulations for the purposes of a National Gas Law;

National Gas Rules means the National Gas Rules as defined in section 2 of the National Gas Law;

natural gas has the same meaning as in the National Gas Law;

Territory means the Australian Capital Territory or the Northern Territory.

A reference in this Act to an Act, regulations or law of another jurisdiction is a reference to the Act, regulations or law as amended and in force for the time being, or to any Act, regulations or law enacted or made in substitution for the Act, regulations or law.

For the purposes of this Act, if the calculation of two‑thirds of the eligible MCE Ministers results in a fraction, two‑thirds of the eligible MCE Ministers will be the number resulting from rounding up that fraction.

This Act binds the Crown, not only in right of South Australia but also, so far as the legislative power of the Parliament permits, the Crown in all its other capacities.

The Australian Energy Market Commission is established.

The AEMC—

is a body corporate; and

has perpetual succession and a common seal; and

is capable of suing and being sued in its corporate name.

The AEMC has all the powers of a natural person together with powers conferred on the AEMC by or under this Act, National Energy Laws or Jurisdictional Energy Laws.

The AEMC has the following functions:

the rule-making, market development and other functions conferred on the AEMC under National Energy Laws or Jurisdictional Energy Laws;

the provision of advice to the MCE as requested by the MCE;

other functions conferred on the AEMC under this or any other Act or any other law;

other functions that are reasonably incidental to any of the foregoing.

The AEMC may perform its functions and exercise its powers in and outside the State.

The AEMC must, in the performance of its functions, have regard to any relevant objectives set out in National Energy Laws.

The AEMC is not subject to direction by the Minister in the performance of its functions.

Subsection (1) does not limit any provision of the National Energy Laws about the giving of directions to the AEMC by the MCE.

The AEMC may publish statements, reports and guidelines relating to the performance of its functions.

The AEMC may enter into a Memorandum of Understanding with other bodies for the purposes of facilitating and coordinating the performance of its functions.

The AEMC must ensure that the Memorandum of Understanding is published.

The AEMC is to consist of at least 3 and not more than 5 Commissioners appointed by the Governor on the recommendation of the Minister, of whom—

1, who will be appointed to be the Chairperson, will be a person nominated for such appointment by at least two‑thirds of the eligible MCE Ministers; and

the remainder will be persons nominated for appointment by at least two‑thirds of the eligible MCE Ministers.

A Commissioner will be appointed—

for a term, not exceeding 5 years, specified in the instrument of appointment (and, at the expiration of a term of office, is eligible for reappointment); and

on conditions as to remuneration and other matters specified in the instrument of appointment.

The term of office and conditions of appointment of a Commissioner must be matters that the Minister has recommended to the Governor in accordance with a resolution of the MCE.

The Governor may remove a Commissioner from office—

for breach of, or non-compliance with, a condition of appointment; or

for misconduct; or

for failure or incapacity to carry out official functions satisfactorily.

The office of a Commissioner becomes vacant if the Commissioner—

dies; or

completes a term of office and is not reappointed; or

resigns by written notice to the Minister; or

is removed from office under subsection (2).

If the office of a Commissioner becomes vacant, the following provisions apply:

if, immediately before the occurrence of the vacancy, the AEMC consisted of 3 or fewer Commissioners, a person must be appointed in accordance with this Act to the vacant office;

if, immediately before the occurrence of the vacancy, the AEMC consisted of more than 3 Commissioners and—

the vacancy occurs in the office of the Commissioner appointed to be the Chairperson, a person must be appointed in accordance with this Act to the vacant office; or

the vacancy occurs in the office of any other Commissioner, the office ceases to exist on the occurrence of the vacancy.