s 1
Amendments to Electricity Act 1992 160 Amendments to Electricity Act 1992 | 90 |
161 Purposes | 90 |
162 Interpretation | 90 |
163 New section 43A inserted | 91 |
43A Different Ministries responsible for different codes | 91 |
164 | Consequential amendments and repeal of spent provisions Repeal of Electricity Industry Reform Act 1998 | 91 |
165 | Repeal of Electricity Industry Reform Act 1998 Amendments to other enactments | 91 |
166 | Amendments to other enactments | 92 |
| Schedule 1 Material incorporated by reference | 93 |
| Schedule 2 When person is involved in distributor, generator, or retailer for purposes of Part 3 | 96 |
| Schedule 3 Arm’s-length rules | 104 |
| Schedule 4 Dispute resolution scheme | 109 |
| Schedule 5 Existing agreements in respect of Waitaki Power Scheme | 118 |
| Schedule 6 Amendments to other enactments | 120 |
| | | | |
The Parliament of New Zealand enacts as follows:
1 Title
This Act is the Electricity Industry Act 2010.
2 Commencement
(1) Sections 34 and 35, 116 to 127, and 130 come into force on the day after the date on which this Act receives the Royal assent.
(2) The rest of this Act comes into force on 1 November 2010.
3 Act binds the Crown
This Act binds the Crown.
Part 1 s 5
Part 1 Preliminary provisions
4 Purpose
The purpose of this Act is to provide a framework for the regulation of the electricity industry.
5 Interpretation
In this Act, unless the context otherwise requires,— ancillary service agent means a person who, pursuant to an agreement with the system operator, provides frequency keeping, instantaneous reserve, voltage support, over frequency reserve, black start, or any other ancillary service specified in the Code, and as defined in the Code approved test housemeans a meter testing and calibration facility that has been approved in accordance with the procedures in the Code
Authority, or Electricity Authority, means the Electricity Authority established by section 12
breach has the meaning given in section 6
Code, or Electricity Industry Participation Code, means the Code administered by the Authority, as brought into force under section 36 and amended from time to time under section 38, 40, or 43 clearing manager means the person appointed by the Authority to act as the clearing manager under the Code community trust, in relation to a distributor or a retailer, means a trust in respect of which—
(a) at least 90% of the income beneficiaries comprise persons who are a class or classes identified by reference to their domicile or location or operation within the geographic area or areas of operation of the distributor or retailer; and
(b) at least 90% of its income distributions are paid to those beneficiaries or for purposes related to that geographic area or areas
consumer means any person who is supplied, or applies to be supplied, with electricity other than for resupply customer co-operative, in relation to a distributor or a retailer, means a cooperative company (as defined in section 2(1) of the Co-operative Companies Act 1996) that has the characteristics described in the definition of customer trust in this section, applied as if references to trusts were to co-operatives, references to income beneficiaries were to shareholders, and all other necessary modifications were made
Part 1 s 5
customer trust, in relation to a distributor or a retailer, means a trust in respect of which—
(a) at least 90% of the income beneficiaries comprise persons who are a class or classes identified by reference to any of— (i) the person’s connection to the lines of the distributor:
(ii) the person’s liability for payment for supply of electricity from the retailer that retails to customers that are connected to the distributor’s network:
(iii) the person’s receipt of electricity from the retailer that retails to customers that are connected to the distributor’s network:
(iv) the person’s liability for payment for the connection to the lines of the distributor:
(v) the person’s liability for payment for line services supplied by the distributor; and
(b) at least 90% of its income distributions are paid to those beneficiaries distribution means the conveyance of electricity on lines other than lines that are part of the national grid distributor means a business engaged in distribution domestic consumer means a person who purchases or uses electricity in respect of domestic premises domestic premises means premises that are used or intended for occupation by a person principally as a place of residence; but does not include premises that constitute any part of premises described in section 5(1)(c) to (k) of the Residential Tenancies Act 1986 (which refers to places such as jails, hospitals, hostels, hotels, and other places providing temporary accommodation) generation means the generation of electricity that is fed into the national grid or a network generator means a business engaged in generation industry participant, or participant, means a person, or a person belonging to a class of persons, identified in section 7 as being a participant in the electricity industry
industry service provider means a person who—
(a) provides a service or performs a role in the electricity industry that is recognised in the Code, including the people listed in section 7(2); but (b) is not any of the industry participants identified in section 7(1)(a) to (h) line function services has the meaning given in section 2(1) of the Electricity Act 1992 lines means works used or intended to be used to convey electricity
Part 1 s 5
load aggregator means a person who contracts with 1 or more consumers so that the person is able to deal with the electricity otherwise required by those consumers in any way, including putting in place agreements under which those consumers voluntarily change their consumption level, so that the person is able to offer the combined increase or reduction in the interruptable load of all those consumers as collective demand, either in the wholesale electricity market or under any other bilateral agreement or contract
market operation service provider means the system operator and any person appointed by the Authority under the Code to perform any of the following market operation service provider roles:
(a) the registry manager:
(b) the reconciliation manager:
(c) the pricing manager:
(d) the clearing manager:
(e) the market administrator:
(f) the wholesale information trading system provider:
(g) any other role identified in regulations as a market operation service provider role
metering equipment owner and meter owner means a person who owns any or all of the items of metering equipment installed in a metering installation metering equipment provider means a person who, in accordance with the Code,—
(a) assumes responsibility for any metering installation; or
(b) is appointed to be responsible for any metering installation
Minister, in any provision, means the Minister of the Crown who, under the authority of any warrant or with the authority of the Prime Minister, is responsible for the administration of that provision or the Part containing that provision
Ministry, in any provision, means the department responsible for the administration of that provision or the Part that contains that provision
national grid means the lines and associated equipment used or owned by Transpower to convey electricity networkmeans a distributor’s lines and associated equipment used for distribution publicise, in relation to a document or information being publicised by a person, means making the document or information available, free of charge,—
(a) on the person’s Internet site at all reasonable times (except to the extent that doing so would infringe copyright in the material or be inconsistent with any enactment or rule of law); and
Part 1 s 5
(b) in any other manner that the person may decide publicly available, in relation to making a document or information available, means that—
(a) the document or information is available for inspection, free of charge, on an Internet site that is publicly accessible at all reasonable times (except to the extent that doing so would infringe copyright in the material or be inconsistent with any enactment or rule of law); and
(b) a copy of the document or information is available for inspection at all reasonable times, free of charge, at the head office of the person required to make it publicly available or, if the person is a Minister, at the head office of the relevant Ministry; and
(c) copies of the document may be purchased by any person at a reasonable price
purchaser means an industry participant who buys electricity from the clearing manager; and includes any other participant that has assumed that person’s rights and obligations in relation to the purchaser regulations means regulations made under this Act retailer means a business engaged in retailing retailing means the sale of electricity to a consumer other than for the purpose of resale
Rulings Panel means the Rulings Panel continued by section 23 system operator means the person who ensures the real-time co-ordination of the electricity system, and is the person referred to in section 8 trader in electricity means a person who trades in electricity or electricity derivatives, and includes—
(a) a person who buys or sells contracts under which the payment obligations may change according to the changes in the price at which electricity is bought or sold in any market in New Zealand; and
(b) any related clearing house or exchange
transmission means the conveyance of electricity through the national grid
Transpower means Transpower New Zealand Limited or any subsidiary of, or successor to, that company
works—
(a) means any fittings (as defined in section 2(1) of the Electricity Act 1992) that are used, designed, or intended for use in or in connection with the generation, conversion, transformation, or conveyance of electricity; but
(b) does not include any part of an electrical installation (as defined in section 2(1) of the Electricity Act 1992).
Part 2 s 7
6 Extended meaning of breach
(1) In this Act, the regulations, and the Code, unless the context otherwise requires, a reference to a person who breaches a provision of this Act, the regulations, or the Code is a reference to a person who—
(a) breaches the provision; or
(b) attempts to breach the provision; or
(c) aids, abets, counsels, or procures any other person to breach the provision; or
(d) induces, or attempts to induce, any other person, whether by threats or promises or otherwise, to breach the provision; or
(e) is in any way, directly or indirectly, knowingly concerned in, or party to, the breach by any other person of the provision; or (f) conspires with any other person to breach the provision.
(2) A breach includes a failure to comply.
Compare: SR 2003/374 r 5(1)
Part 2 Electricity industry governance
Subpart 1—Who does what
Industry participants
7 Industry participants
(1) The following are industry participants for the purposes of this Act:
(a) a generator:
(b) Transpower:
(c) a distributor:
(d) a retailer:
(e) any other person who owns lines:
(f) a person who consumes electricity that is conveyed to the person directly from the national grid:
(g) a person, other than a generator, who generates electricity that is fed into a network:
(h) a person who buys electricity from the clearing manager:
(i) any industry service provider identified in subsection (2).
(2) The following industry service providers are industry participants:
(a) a market operation service provider:
Part 2 s 8
(b) a metering equipment provider:
(c) a metering equipment owner:
(d) an ancillary service agent:
(e) a person that operates an approved test house:
(f) a load aggregator:
(g) a trader in electricity:
(h) any other industry service provider identified in regulations made under section 109.
(3) The Authority is not an industry participant, except to the extent that it performs functions as an industry service provider.
Compare: SR 2003/374 r 4
8 Transpower is system operator
(1) The system operator is Transpower.
(2) As well as acting as system operator for the electricity industry, the system operator must—
(a) provide information, and short- to medium-term forecasting on all aspects of security of supply; and (b) manage supply emergencies.
(3) The Code must—
(a) specify the functions of the system operator; and
(b) specify how the system operator’s functions are to be performed; and (c) set requirements relating to transparency and performance.
(4) A failure to comply with subsection (2) is to be treated, for the purposes of enforcement under this Part, as a breach of the Code.
Compare: SR 2003/374 r 30
9 Industry participants to register and comply with Code
(1) Every industry participant must—
(a) register as an industry participant by supplying the Authority with the information specified in section 27(2); and (b) comply with the Code.
(2) A failure to comply with subsection (1) may result in an industry participant being—
(a) liable to conviction for an offence under section 31, in the case of failure to register; and
(b) subject to the enforcement measures set out in this Part, in the case of failure to comply with the Code.
Part 2 s 11
10 Exemption from obligation to register
(1) Despite section 9(1)(a), an industry participant need not register if—
(a) it is a member of a class of industry participants identified in regulations made under section 110 as a class of industry participants that is exempt from the obligation to register; or
(b) the Authority exempts the participant by issuing an individual exemption notice in the Gazette that—
(i) identifies the industry participant that is exempt from the obligation to register; and
(ii) gives reasons for the exemption.
(2) The Authority may grant an individual exemption to an industry participant only if the Authority is satisfied that—
(a) it is not necessary, for the purpose of achieving the Authority’s objective under section 15, for the participant to be registered; and
(b) exempting the participant will reduce overall administration and compliance costs.
(3) The Authority may amend or revoke an individual exemption, by issuing a notice in the Gazette that identifies the exempt participant and gives reasons for the amendment or revocation, but only if the Authority—
(a) has given notice of the proposed amendment or revocation to the exempt participant and given the participant a reasonable opportunity to comment on the proposal; and (b) is satisfied that—
(i) the amendment or revocation is necessary or desirable for the purpose of achieving the Authority’s objective under section 15; and
(ii) the benefit of the amendment or revocation outweighs any disadvantage resulting from any increased administration and compliance costs.
(4) To avoid doubt, an individual exemption notice issued under subsection (1)(b) is not a regulation for any purpose.
(5) The Authority must publicise a list of all current class and individual exemptions.
11 Exemption from obligation to comply with Code
(1) Despite section 9(1)(b), an industry participant need not comply with the Code, or specific provisions of the Code, if—
(a) it is a member of a class of industry participants identified in regulations made under section 110 as a class of industry participants that is exempt from the obligation to comply with the Code or specific provisions of the Code; or
Part 2 s 12
(b) the Authority exempts the participant by issuing an individual exemption notice in the Gazette that—
(i) identifies the industry participant that is exempt from the obligation to comply with the Code or specific provisions of the Code; and
(ii) gives reasons for the exemption.
(2) The Authority may grant an individual exemption to an industry participant only if the Authority is satisfied that—
(a) it is not necessary, for the purpose of achieving the Authority’s objective under section 15, for that participant to comply with the Code or the specific provisions of the Code; and
(b) exempting the participant will reduce overall administration and compliance costs.
(3) The Authority may amend or revoke an individual exemption, by issuing a notice in the Gazette that identifies the exempt participant and gives reasons for the amendment or revocation, but only if the Authority—
(a) has given notice of the proposed amendment or revocation to the exempt participant and given the participant a reasonable opportunity to comment on the proposal; and (b) is satisfied that—
(i) the amendment or revocation is necessary or desirable for the purpose of achieving the Authority’s objective under section 15; and
(ii) the benefit of the amendment or revocation outweighs any disadvantage resulting from any increased administration and compliance costs.
(4) To avoid doubt, an individual exemption notice issued under subsection (1)(b) is not a regulation for any purpose.
(5) The Authority must publicise a list of all current class and individual exemptions.
Electricity Authority
12 Authority established
(1) The Electricity Authority is established.
(2) The Authority is a Crown entity for the purposes of section 7(1) of the Crown Entities Act 2004 (and, by virtue of being named in Part 3 of Schedule 1 of that Act, is an independent Crown entity).
(3) The Crown Entities Act 2004 applies to the Authority except to the extent that this Act expressly provides otherwise.
Compare: 1992 No 122 s 172M
Part 2 s 16
13 Membership of Authority
(1) The Authority comprises between 5 and 7 members.
(2) When recommending a person for membership of the Authority, the Minister must have regard to the need to ensure that the Authority has amongst its members knowledge and experience of, and capability in, the following:
(a) the electricity industry:
(b) consumer issues:
(c) business generally.
(3) The Minister may not recommend a person for membership of the Authority unless he or she has first publicised an invitation for nominations from interested parties and considered any nominations received.
Compare: 1992 No 122 s 172R
14 Independence of members of Authority
(1) No member of the Authority, when acting as a member, may represent, or promote the interests or views of, any organisation or any particular industry participant or group of industry participants.
(2) This section does not limit, and is in addition to, the duties of members set out in Part 2 of the Crown Entities Act 2004.
Compare: 1992 No 122 s 172S
15 Objective of Authority
The objective of the Authority is to promote competition in, reliable supply by, and the efficient operation of, the electricity industry for the long-term benefit of consumers.
Compare: 1992 No 122 s 172N
16 Functions of Authority
(1) The Authority’s functions are as follows:
(a) to maintain a register of industry participants in accordance with subpart 2, and to exempt individual industry participants from the obligation to be registered:
(b) to make and administer the Electricity Industry Participation Code in accordance with subpart 3:
(c) to monitor compliance with the Act, the regulations, and the Code, and to exempt individual industry participants from the obligation to comply with the Code or specific provisions of the Code:
(d) to investigate and enforce compliance with this Part, Part 4, the regulations, and the Code (see subpart 4 of this Part):
(e) to investigate and enforce compliance with Part 3 (see subpart 2 of Part 3):
Part 2 s 17
(f) to undertake market-facilitation measures (such as providing education, guidelines, information, and model arrangements), and to monitor the operation and effectiveness of market facilitation measures:
(g) to undertake industry and market monitoring, and carry out and make publicly available reviews, studies, and inquiries into any matter relating to the electricity industry:
(h) to contract for market operation services (but see subsection (2)) and system operator services:
(i) to promote to consumers the benefits of comparing and switching retailers:
(j) to perform any other specific functions imposed on it under this or any other Act.
(2) Instead of, or as well as, contracting for market operation services, the Authority may itself perform—
(a) the functions of the market administrator, if the Authority considers it desirable to do so; and
(b) any other market operation service, but only on a temporary basis (such as when there is no current contract, or the contractor is unable or unwilling to perform the service).
Compare: 1992 No 122 s 172O
17 Statements of government policy
(1) In performing its functions, the Authority must have regard to any statements of government policy concerning the electricity industry that are issued by the Minister.
(2) Before issuing a statement under this section, the Minister must consult with the Authority.
(3) Every statement of government policy concerning the electricity industry must be—
(a) conveyed to the Authority in writing; and
(b) notified in the Gazette; and
(c) presented by the Minister to the House of Representatives; and (d) made publicly available.
(4) A statement of government policy concerning the electricity industry—
(a) comes into effect on the date specified in the Gazette notice, which must be on or after the date of the notice and is to be treated as the date on which the statement is issued; and
(b) may be amended, revoked, or replaced in the same way as it may be given.
Compare: 1992 No 122 s 172ZK; 1986 No 5 s 26; 2004 No 115 s 115
Part 2 s 19
18 Reviews on request by Minister
(1) On written request by the Minister, the Authority must review and report on any matter relating to the electricity industry that is specified by the Minister.
(2) The Minister must consult the Authority before issuing a request for a review.
(3) When requesting a review, the Minister may, without limitation,—
(a) specify a date by which, or a period within which, the Authority must provide its report; and
(b) give the Authority any specific directions about how to conduct the review (such as directions about consultation, the issue of draft reports, timing); and
(c) specify particular matters that the Authority is to consider.
(4) If, in the course of a review, the Authority considers that there are matters that fall outside the scope of the review but which it should nevertheless report on to the Minister, the Authority may include a report on those matters in the final report or in a separate report.
(5) Within 15 days after receiving a final report on a review conducted under this section, the Minister must make the report publicly available.
(6) However, in making the report publicly available, the Minister may omit any information that he or she would be likely to withhold if it were requested under the Official Information Act 1982.
Security and Reliability Council, and other advisory groups
19 Charter about advisory groups
(1) The Authority must make, and make publicly available, a charter that sets out—
(a) how it will establish and interact with advisory groups appointed under sections 20 and 21; and
(b) when and how it will consult advisory groups on material changes to the Code; and
(c) how advisory groups must operate, including provisions concerning procedure.
(2) Before making a charter, the Authority must consult interested parties on a draft charter.
(3) The Authority and all advisory groups must comply with the charter made under this section.
(4) The first charter must be made within the first year after this section comes into force.
(5) Until the first charter is made under this section,—
Part 2 s 20
(a) the Authority may establish and interact with advisory groups as it
thinks fit; and
(b) advisory groups may determine their own procedure, subject to any specific directions or requirements of the Authority.
20 Security and Reliability Council
(1) The Authority must appoint a Security and Reliability Council.
(2) The function of the Security and Reliability Council is to provide independent advice to the Authority on—
(a) the performance of the electricity system and the system operator; and (b) reliability of supply issues.
(3) The Council must meet at least once every 6 months.
(4) The Council may determine its own procedure, subject to this Act and the charter (once made) prepared under section 19.
(5) The Authority must ensure that the members of the Council have between them appropriate knowledge and experience of the electricity industry to provide advice to the Authority, but members need not be independent persons.
(6) The Authority may not appoint a person as a member of the Council unless the Authority has first publicised an invitation for nominations for membership and considered any nominations received.
(7) The terms of appointment as a member of the Council are as determined by the Authority on an individual basis.
21 Other advisory groups
(1) The Authority must establish 1 or more other advisory groups to provide independent advice to the Authority on the development of the Code and on market facilitation.
(2) Every advisory group must include people whom the Authority considers have appropriate knowledge of, and experience in, the electricity industry and consumer issues, but members need not be independent persons.
22 Application of Crown Entities Act 2004
(1) The following provisions of the Crown Entities Act 2004 apply, with all necessary modifications, to or in respect of each member of an advisory group appointed under section 20 or 21 (an advisory group member) as if the advisory group were a statutory entity:
(a) sections 43, 48, 57, 77, 120, 121, 126, and 135:
(b) sections 62 to 72, as if the disclosure required by those sections must be made to both the relevant advisory group and the Authority.
Part 2 s 25
(2) Section 47(1) of the Crown Entities Act 2004 (which is about remuneration) applies to advisory group members as if the advisory groups were autonomous Crown entities.
(3) Each advisory group member is deemed to be a member of the Authority for the purpose of—
(a) the Authority indemnifying the member under section 122 of the Crown Entities Act 2004; and
(b) the Authority effecting insurance cover under section 123 of that Act; and
(c) the application of section 125 of that Act.
(4) For the purpose of section 152 of the Crown Entities Act 2004 (which is about disclosing payments in an annual report), the Authority must treat each advisory group member as if he or she were a member of the Authority.
Rulings Panel
23 Continuation of Rulings Panel
(1) There continues to be a Rulings Panel.
(2) The Rulings Panel is the same body as the body established by regulation 160 of the Electricity Governance Regulations 2003.
Compare: SR 2003/374 r 160
24 Membership of Rulings Panel
(1) The Rulings Panel comprises up to 5 members appointed by the GovernorGeneral.
(2) The Governor-General must appoint—
(a) 1 member to be the chairperson of the Rulings Panel, who must be a barrister or solicitor of the High Court of at least 7 years’ standing; and (b) 1 member to be deputy chairperson of the Rulings Panel.
(3) The Governor-General may make an appointment under subsection (1) or (2) only in accordance with a recommendation by the Minister given after the Minister has consulted with the Minister of Justice and the Authority.
(4) Further provisions relating to the membership of the Rulings Panel may be set out in regulations made under section 112.
Compare: SR 2003/374 rr 162, 165(1)
25 Function of Rulings Panel
The function of the Rulings Panel is—
(a) to assist in the enforcement of the Code by—
(i) hearing and determining complaints about breaches or possible breaches of the Code; and
Part 2 s 26
(ii) hearing and determining appeals from certain decisions made under the Code; and
(iii) considering and resolving certain disputes between industry participants relating to the Code; and
(iv) making appropriate remedial and other orders; and
(b) to review any suspension of trading by the Authority under section 49; and
(c) to exercise any other functions conferred on it under this Act or the regulations.
Compare: SR 2003/374 r 161
26 Funding of Rulings Panel and remuneration of members
(1) The Authority must fund the Rulings Panel.
(2) The Authority may recover the costs of that funding from industry participants through levies payable under section 128.
(3) The remuneration of members of the Rulings Panel, other than remuneration covered by subsection (4), must be set by the Remuneration Authority under section 12(1)(a)(va) of the Remuneration Authority Act 1977 as if the members were members of an independent Crown entity.
(4) Members of the Rulings Panel are entitled, in accordance with the fees framework (as defined in section 10(1) of the Crown Entities Act 2004), to be reimbursed for actual and reasonable travelling and other expenses incurred in carrying out their functions as members.
Compare: SR 2003/374 r 176
Subpart 2—Registration
27 Register of industry participants
(1) The Authority must maintain and publicise a register of industry participants.
(2) The register must record—
(a) the name, contact details, and business details of every current industry participant, other than a participant that is exempt from the obligation to register:
(b) the date on which a participant’s name was first entered in the register:
(c) the date and nature of every subsequent change to the details recorded for each participant:
(d) the name of every person who, after this section comes into force, has been recorded as a current industry participant but subsequently ceases to be.
(3) For the purposes of the register,—
Part 2 s 31
(a) an industry participant’s contact details are its physical address, postal address, telephone number, fax number, and email address; and
(b) an industry participant’s business details are details about the nature of its business (for example, whether it is involved in generation, transmission, distribution, retailing, or a combination of any of these).
(4) The register may, but need not, contain the names of all or any industry participants that are exempt from the obligation to be registered.
Compare: SR 2003/374 rr 9, 10, 12
28 Transfer of old information to register
The name, contact details, and business details of every person that, immediately before this section comes into force, is recorded as an industry participant on the register maintained by the Electricity Commission under regulation 9 of the Electricity Governance Regulations 2003—
(a) must be transferred to the register maintained under section 27(1); and
(b) is deemed to have been recorded on that register on the date on which the register is established.
29 Registration and requirement to update information
(1) An industry participant is registered as soon as its information is recorded, or deemed to be recorded, on the register.
(2) A registered industry participant must supply updated information, as soon as practicable, if its name, contact details, or business details change.
Compare: SR 2003/374 rr 8, 11
30 Ceasing to be registered
(1) The Authority must remove an industry participant’s name, contact details, and business details from the register of current registered participants if satisfied that the person has ceased to be a participant; but the Authority may retain a record of the participant’s name and business details on the register as a former participant.
(2) A person ceases to be a registered industry participant when the person’s name is no longer recorded on the register as a current industry participant.
(3) An industry participant’s obligations under the Code, and any proceedings underway or orders in effect under the Code, are not affected merely because the participant ceases to be registered as a current participant.
Compare: SR 2003/374 r 14
31 Offences relating to registration
(1) An industry participant that fails, without reasonable excuse, to register as an industry participant commits an offence and is liable on conviction to a fine not exceeding $20,000.
Part 2 s 32
(2) A registered industry participant commits an offence, and is liable on conviction to a fine not exceeding $20,000, if it knows or ought to know that the information recorded for it on the register is wrong or incomplete and it fails to supply updated information as required by section 29(2).
Section 31(1): amended, on 1 July 2013, by section 413 of the Criminal Procedure Act 2011 (2011 No 81).
Section 31(2): amended, on 1 July 2013, by section 413 of the Criminal Procedure Act 2011 (2011 No 81).
Subpart 3—Electricity Industry Participation Code
Content and status of Code
32 Content of Code
(1) The Code may contain any provisions that are consistent with the objective of the Authority and are necessary or desirable to promote any or all of the following:
(a) competition in the electricity industry:
(b) the reliable supply of electricity to consumers:
(c) the efficient operation of the electricity industry:
(d) the performance by the Authority of its functions:
(e) any other matter specifically referred to in this Act as a matter for inclusion in the Code.
(2) The Code may not—
(a) impose obligations on any person other than an industry participant or a person acting on behalf of an industry participant, or the Authority; or
(b) purport to do or regulate anything that the Commerce Commission is authorised or required to do or regulate under Part 3 or 4 of the Commerce Act 1986 (other than to set quality standards for Transpower and set pricing methodologies (as defined in section 52C of that Act) for Transpower and distributors); or
(c) purport to regulate any matter dealt with in or under the Electricity Act 1992.
(3) The Code may incorporate by reference any of the following:
(a) New Zealand Standards, or standards, requirements, or recommended practices of any overseas or international body:
(b) codes of practice issued under Part 4 of the Electricity Act 1992:
(c) any other written material dealing with technical matters that, in the opinion of the Authority,—
(i) is too long to publish as part of the Code; or
(ii) it is impracticable to publish as part of the Code.
Part 2 s 34
(4) Schedule 1 applies to any material incorporated by reference into the Code.
33 Status of Code
(1) The following are secondary legislation (see Part 3 of the Legislation Act 2019 for publication requirements):
(a) the Code:
(b) an amendment to the Code under section 38 or 40.
(2) If any provision of the Code conflicts with this or any other Act, or with any regulation made under this or any other Act, the Act or regulation prevails.
Legislation Act 2019 requirements for secondary legislation referred to in subsection (1)(a)
This note is not part of the Act.
Legislation Act 2019 requirements for secondary legislation referred to in subsection (1)(b) Publication The maker must: | LA19 ss 73, 74(1)(a), |
| • notify it in the Gazette | Sch 1 cl 14 |
| - publicise it (see definition in section 5)
- make it publicly available (see definition in section 5)
- comply with section 40(2)(aa) if applicable
The Ministry of Foreign Affairs and Trade considers that the secondary legislation may have international transparency obligations under the CPTPP. As a result the maker may also have to comply with s 75 of the Legislation Act 2019 | LA19 ss 74(2), 75 |
Presentation | The Minister must present it to the House of Representatives | LA19 s 114, Sch 1 cl 32(1)(a) |
Disallowance It may be disallowed by the House of Representatives This note is not part of the Act. | LA19 ss 115, 116 |
Section 33(1): replaced, on 28 October 2021, by section 3 of the Secondary Legislation Act 2021 (2021 No 7).
Making and amending Code
34 Content of initial Code
(1) The Code made under section 36 must comprise—
(a) a consolidation of the following enactments:
(i) the Electricity Governance Rules made under section 172H of the Electricity Act 1992:
Part 2 s 35
(ii) subpart 2 of Part 1 and Parts 2, 2A, and 3 of the Electricity Governance Regulations 2003:
(iii) subpart 2 of Part 10 of the Electricity Governance Regulations 2003 (the Comalco agreements exemptions):
(iv) the Electricity Governance (Security of Supply) Regulations 2008:
(v) the Electricity Governance (Connection of Distributed Generation) Regulations 2007:
(b) provisions referred to in section 8(3) (concerning the system operator):
(c) provisions to give effect to any exemptions granted under subpart 1 of Part 10 of the Electricity Governance Regulations 2003.
(2) The Code must include whatever changes to the text of the enactments referred to in subsection (1)(a) are necessary or reasonably required to ensure that the
Code—
(a) is consistent with this Act, the regulations, and any amendments made to other enactments by this Act; and
(b) is accurate and coherent; and
(c) addresses any transitional issues.
(3) To avoid doubt, the Code must not include provisions relating to statements of opportunities or grid planning assumptions.
(4) The Code is deemed to include the provisions of any regulations or rules made, within 6 months before this section comes into force, under section 172E(3) of the Electricity Act 1992 (which relates to regulations and rules made urgently); but—
(a) the provisions expire on the date that is 6 months after the date on which those regulations and rules come into force; and
(b) the text of those regulations and rules need not be included in any draft or final copy of the Code that is publicised or made publicly available.
35 Certification of draft Code
(1) The Minister must certify a draft Code that complies with section 34.
(2) The Minister must publicise the draft Code as soon as practicable after it is certified.
(3) The Minister’s certificate is conclusive evidence that the draft complies with section 34.
36 Code comes into force
(1) The certified draft Code comes into force as the Code on the day this section comes into force.
(2) That Code is deemed to have been made by the Authority on that day.
Part 2 s 39
37 Making Code accessible
[Repealed]
Section 37: repealed, on 28 October 2021, by section 3 of the Secondary Legislation Act 2021 (2021 No 7).
38 Authority amends Code
(1) The Authority may amend the Code at any time, subject to section 39 of this Act and section 54V of the Commerce Act 1986.
(2) An amendment may be an addition, an omission, a substitution, or a complete replacement.
(3) [Repealed]
(4) An amendment may not come into force until a date that is at least 28 days after the date on which it is published under the Legislation Act 2019 (see section 33).
Section 38(3): repealed, on 28 October 2021, by section 3 of the Secondary Legislation Act 2021 (2021 No 7).
Section 38(4): amended, on 28 October 2021, by section 3 of the Secondary Legislation Act 2021 (2021 No 7).
39 Consultation on proposed amendments
(1) Before amending the Code, the Authority must— (a) publicise a draft of the proposed amendment; and
(b) prepare and publicise a regulatory statement; and
(c) consult on the proposed amendment and the regulatory statement.
(2) The regulatory statement required for a proposed amendment to the Code must include the following:
(a) a statement of the objectives of the proposed amendment:
(b) an evaluation of the costs and benefits of the proposed amendment:
(c) an evaluation of alternative means of achieving the objectives of the proposed amendment.
(3) Despite subsection (1), the Authority need not comply with subsection (1)(b) or
(c) if it is satisfied on reasonable grounds that—
(a) the nature of the amendment is technical and non-controversial; or
(b) there is widespread support for the amendment among the people likely to be affected by it; or
(c) there has been adequate prior consultation (for instance, by or through an advisory group) so that all relevant views have been considered.
Part 2 s 40
40 Urgent amendments to Code
(1) The Authority may amend the Code without complying with section 39(1) if the Authority considers that it is necessary or desirable in the public interest that the proposed amendment be made urgently.
(2) Every amendment made under this section—
(aa) must be published (as required under section 33) with a statement of the Authority’s reasons why the urgent amendment is needed; and
(a) is not subject to section 38(4); and
(b) expires on the date that is 9 months after the date on which it comes into force.
Compare: 1992 No 122 s 172E(3)
Section 40(1): replaced, on 28 October 2021, by section 3 of the Secondary Legislation Act 2021 (2021 No 7).
Section 40(2)(aa): inserted, on 28 October 2021, by section 3 of the Secondary Legislation Act 2021 (2021 No 7).
Section 40(2)(a): replaced, on 28 October 2021, by section 3 of the Secondary Legislation Act 2021 (2021 No 7).
41 Authority to publish consultation charter
(1) The Authority must develop, issue, and make publicly available a consultation charter that includes guidelines, not inconsistent with this Act, relating to the processes for amending the Code and consulting on proposed amendments. (2) However, no amendment to the Code is invalid merely because—
(a) there was no consultation charter at the time the amendment was consulted on or made; or
(b) the Authority failed to comply with the charter.
Specific new matters in Code
42 Specific new matters to be in Code
(1) Before the date that is 1 year after this section comes into force, the Authority must either—
(a) have amended the Code so that it includes all the matters described in subsection (2) (the new matters); or
(b) to the extent that the Code does not include all the new matters, have delivered to the Minister a report described in subsection (3).
(2) The new matters are as follows:
(a) provision of compensation by retailers to consumers during public conservation campaigns:
Part 2 s 43
(b) imposing a floor or floors on spot prices for electricity in the wholesale market during supply emergencies (including public conservation campaigns):
(c) mechanisms to help wholesale market participants manage price risks caused by constraints on the national grid:
(d) mechanisms to allow participants who buy electricity on the wholesale market (commonly called the demand side) to benefit from demand reductions:
(e) requirements for distributors that do not send accounts to consumers directly to use more standardised tariff structures:
(f) requirements for all distributors to use more standardised use-of-system agreements, and for those use-of-system agreements to include provisions indemnifying retailers in respect of liability under the Consumer Guarantees Act 1993 for breaches of acceptable quality of supply, where those breaches were caused by faults on a distributor’s network:
(g) facilitating, or providing for, an active market for trading financial hedge contracts for electricity.
(3) A report provided under subsection (1)(b) must—
(a) identify which new matters are not included in the Code; and
(b) explain why the Authority has not amended the Code to include those matters; and
(c) suggest alternative methods by which the matters are or may be provided for; and
(d) set out if, when, and how the Authority proposes to provide for the matters.
43 Minister may amend Code to include new matters
(1) The Minister may amend the Code by including provisions for any of the new matters identified in section 42(2) if—
(a) the Minister considers that the Code’s provisions for a new matter are not satisfactory; or
(b) the Minister considers that, in light of the Authority’s report given under section 42(1)(b), it is necessary or desirable for the Minister to amend the Code to include provisions for the matter in the Code.
(2) The Minister may amend the Code as if he or she were the Authority, and sections 38 to 40 apply accordingly.
(3) Before amending the Code, the Minister must—
(a) consult with the Authority (in addition to any consultation required under section 39); and
Part 2 s 44
(b) be satisfied that the amendments will achieve the Authority’s objective in section 15.
(4) The power given by this section may not be exercised earlier than 1 year after, and not more than 3 years after, the date on which this section comes into force.
Section 43(2): amended, on 28 October 2021, by section 3 of the Secondary Legislation Act 2021 (2021 No 7).
Other specific content
44 Transmission agreements
(1) Without limiting section 32, the Code may require Transpower and 1 or more industry participants to enter into 1 or more agreements for connection to, use of, and (where relevant) investment in, the national grid (a transmission agreement).
(2) The Code may prescribe default terms and conditions that are deemed to be included in transmission agreements.
(3) The parties to a transmission agreement may, by mutual consent, agree to modify any default terms and conditions, but only if and to the extent that the Code permits those terms and conditions to be modified.
(4) Every transmission agreement between Transpower and an industry participant is deemed to include a provision under which the industry participant agrees to pay Transpower any amounts that Transpower charges the industry participant in accordance with the transmission pricing methodology.
(5) A transmission agreement is binding on both parties and enforceable as if it were a contract between the parties that had been freely and voluntarily entered into.
(6) If the parties do not comply with a requirement in the Code to enter into 1 or more transmission agreements, the default terms and conditions in the Code, and the provision in subsection (4), are binding on both parties and enforceable as if they were set out in a transmission agreement.
Compare: 1992 No 122 s 172KA
Subpart 4—Monitoring and enforcement
Authority’s powers and procedures
45 Purposes of exercise of Authority’s monitoring, investigation, and enforcement powers
The purposes for which the powers in section 46 may be exercised are as follows:
(a) carrying out the Authority’s monitoring functions, which are to—
Part 2 s 47
(i) monitor compliance with this Act (including Part 3), the regulations, and the Code; and
(ii) undertake and monitor the operation and effectiveness of marketfacilitation measures under section 16(1)(f); and
(iii) undertake industry and market monitoring, and carry out any other function referred to in section 16(1)(g):
(b) carrying out the Authority’s function of investigating breaches or possible breaches of, and enforcing compliance with, this Part, Part 4, the regulations, and the Code.
Compare: 1992 No 122 s 172KB
46 Authority’s monitoring, investigation, and enforcement powers
(1) The Authority may exercise the powers in this section only for a purpose described in section 45.
(2) The Authority may require an industry participant to do any of the following:
(a) provide, within any reasonable time specified by the Authority, any information, papers, recordings, and documents that are in the possession, or under the control, of the participant and that are requested for the purpose:
(b) permit its officers or employees to be interviewed (which interview may be recorded) and ensure as far as possible that they are made available for interview and answer truthfully and fully any questions put to them:
(c) give all other assistance that may be reasonable and necessary to enable the Authority to carry out its functions and exercise its powers.
(3) Nothing in this section requires a person to give the Authority access to any premises, except for a purpose described in section 45(b) and under a warrant issued under section 47.
(4) If an industry participant, whether directly or through an officer or employee, fails to comply with a requirement of the Authority under this section, the failure is treated as if it were a breach of the Code and the Authority may apply to the Rulings Panel for any order under section 54.
Compare: 1992 No 122 s 172KB
47 Power to search
(1) The Authority may, for a purpose specified in section 45(b), authorise an employee of the Authority (an authorised person) to search, under a warrant issued under subsection (2), any place named in the warrant for the purpose of ascertaining whether an industry participant has breached, or may breach, this Part, Part 4, the regulations, or the Code.
(2) An issuing officer (within the meaning of section 3 of the Search and Surveillance Act 2012), on an application made in the manner provided in subpart 3 of
Part 2 s 48
Part 4 of that Act, who is satisfied that there are reasonable grounds to believe that it is necessary, for the purpose of ascertaining whether an industry participant has breached, or may breach, this Part, Part 4, the regulations, or the Code, for an authorised person to search any place may, by warrant, authorise that person to search a place specified in the warrant.
(3) The provisions of Part 4 of the Search and Surveillance Act 2012 (except for sections 118 and 119) apply, with any necessary modifications.
Compare: 1992 No 122 s 172KD; 1986 No 5 s 98A
Section 47(2): amended, on 1 October 2012, by section 239(2) of the Search and Surveillance Act 2012 (2012 No 24).
Section 47(3): replaced, on 1 October 2012, by section 239(3) of the Search and Surveillance Act 2012 (2012 No 24).
48 Privileges protected
(1) Nothing in section 46 limits any claim for legal professional privilege.
(2) If the Authority requires an industry participant to do anything referred to in section 46, neither the industry participant nor any officer or employee of the industry participant is excused from answering a question or giving any information or document on the ground that to do so may incriminate or tend to incriminate the industry participant or the officer or employee.
(3) However, any self-incriminating statement or document made or given by an officer or employee, or an industry participant that is an individual, is not admissible as evidence in any criminal or civil proceedings against that person.
Compare: 1992 No 122 s 172KC
49 Authority may suspend trading in case of insolvency
(1) This section applies to a generator or purchaser that—
(a) is unable to pay its debts; or
(b) calls a meeting for the purpose of Part 14 of the Companies Act 1993; or
(c) is adjudicated bankrupt; or
(d) in the case of a company, society, or partnership, has a receiver or statutory manager or similar person appointed in respect of it or of all or any of its assets; or
(e) is put into liquidation.
(2) A generator or purchaser is adjudicated bankrupt if,—
(a) in the case of a partnership, all of the partners are adjudicated bankrupt; or
(b) in the case of an individual, that individual is adjudicated bankrupt.
(3) The Authority may suspend the generator’s or purchaser’s rights to make bids or offers under the Code, with effect from a time to be determined by the
Part 2 s 51
Authority, which must be a time later than the relevant event under subsection (1).
(4) Despite any suspension of trading ordered by the Authority, the generator or purchaser must continue to meet its common quality obligations under the Code, to the extent that the suspension order permits.
(5) After a suspension order under this section takes effect,—
(a) the Authority may order that any rights that were suspended be reinstated in respect of the generator or purchaser; and
(b) the Authority may apply to the Rulings Panel for a termination order in respect of the generator or purchaser; and
(c) the generator or purchaser may apply to the Rulings Panel to review the suspension by the Authority; and the Rulings Panel may, on review, exercise all the powers that the Authority has under subsection (3) and paragraph (a) of this subsection.
Compare: SR 2003/374 rr 143, 144, 145
Code enforcement
50 Complaints, appeals, and disputes
(1) Complaints about breaches or possible breaches of the Code must be made to the Authority at first instance.
(2) The Authority must deal with complaints in accordance with this Part and the regulations.
(3) Complaints may subsequently be referred to the Rulings Panel, in accordance with this Part and the regulations, by either the Authority or an industry participant.
(4) The Rulings Panel may determine appeals against decisions made under the Code, and resolve disputes between industry participants that relate to the Code, that are of a kind that are identified in the regulations or the Code.
(5) If the regulations or the Code prescribe practices and procedures in relation to any kind of such appeal or dispute, the Rulings Panel must apply those practices and procedures when dealing with the appeal or dispute.
51 Interim injunctions
(1) The Authority may at any time apply to the High Court for the grant of an interim injunction—
(a) restraining an industry participant from doing anything that is in breach of the Code; or
(b) requiring an industry participant to do something in accordance with the Code.
Part 2 s 52
(2) The court may grant the injunction if, in the opinion of the court, it is desirable to do so.
(3) Subsection (2) applies, in the case of an injunction under subsection (1)(a),— (a) whether or not the participant has done, or omitted to do, that thing; and
(b) whether or not there is an imminent danger of substantial damage to any person if the participant does, or omits to do, that thing.
(4) The court may rescind or vary the injunction on application by the Authority or any participant affected by the injunction.
(5) The court must not require the Authority, as a condition of granting an interim injunction, to give an undertaking as to damages, and must not, when determining the application, take into account the fact that the Authority is not required to give such an undertaking.
(6) Nothing in this Act or the regulations prevents the Authority from seeking an interim injunction under this section at any time.
Compare: SR 2003/374 r 68
52 Limitation periods for breaches of Code
(1) The Authority may not exercise its powers in relation to a breach or possible breach of the Code if the breach—
(a) was discovered, or ought reasonably to have been discovered, more than
3 years before the exercise of the power; or
(b) occurred more than 10 years before the exercise of the power.
(2) However, once the Authority has exercised a power in relation to the breach or possible breach, the limitations in subsection (1) do not apply.
Compare: SR 2003/374 r 5(2)
53 Powers and procedures of Rulings Panel
(1) Every complaint, appeal, or dispute before the Rulings Panel must be dealt with by a panel of 3 members, one of whom must be the chairperson (except when the deputy chairperson acts on his or her behalf).
(2) The Rulings Panel may determine its own procedures, subject to this Act and the regulations, the requirements of natural justice, and, in relation to particular kinds of appeals and disputes, the Code.
(3) The Rulings Panel has all the powers necessary to perform its functions in accordance with this Act, the regulations, and the Code.
Compare: SR 2003/374 rr 96, 171A, 177
54 Remedial orders for breach of Code
(1) On determining a complaint that an industry participant has breached the Code, the Rulings Panel may decide that no action should be taken, or do any 1 or more of the following:
Part 2 s 55
(a) issue a private warning or reprimand to an industry participant:
(b) make an order that a public warning or reprimand be issued to an industry participant:
(c) impose additional or more stringent record-keeping or reporting requirements under or in connection with the Code:
(d) make a pecuniary penalty order requiring an industry participant to pay a pecuniary penalty to the Crown of an amount not exceeding $200,000 (see section 56):
(e) make a compensation order requiring an industry participant to pay a sum by way of compensation to any other person:
(f) make a compliance order requiring an industry participant that is found not to be complying with the Code to take any action that is necessary to restore it to a position of compliance (see section 57):
(g) make orders regarding the reasonable costs of any investigations or proceedings:
(h) recommend to the Authority that a change should be made to the Code or the regulations:
(i) recommend to the Minister that a change should be made to the regulations or the Act.
(2) The Rulings Panel must take into account its own previous decisions in respect of any similar situations previously dealt with by the Authority or any predecessor of the Authority.
Compare: 1992 No 122 s 172KE
55 Restrictions on remedies
(1) The remedies that the Rulings Panel may impose under section 54 are the only remedies in respect of a breach of the Code.
(2) No one may bring an action for breach of statutory duty that arises out of, or relates to, a breach of the Code.
(3) No industry participant may bring an action in tort against a market operation service provider that arises out of, or relates to, any act, matter, or thing done, or required or omitted to be done, by the market operation service provider in the course of it providing market operation services, provided that the act or omission is not a fraudulent act or omission by the market operation service provider.
(4) Except as provided in subsection (3), nothing in this section limits the recovery of—
(a) a debt owing under any order of the Rulings Panel made under this Act; or
(b) damages in tort other than breach of statutory duty; or
Part 2 s 56
(c) damages for breach of contract, or for any other wrong, that arises from an act or omission that is also a breach of the Code.
Compare: 1992 No 122 ss 172KF, 172KG
56 Pecuniary penalty orders
(1) The Rulings Panel may make a pecuniary penalty order under section 54(1)(d) only on an application by the Authority.
(2) In determining whether to make a pecuniary penalty order and, if so, the amount of the order, the Rulings Panel must consider the seriousness of the breach of the Code, having regard to the following:
(a) the severity of the breach:
(b) the impact of the breach on other industry participants:
(c) the extent to which the breach was inadvertent, negligent, deliberate, or otherwise:
(d) the circumstances in which the breach occurred:
(e) any previous breach of the Code by the industry participant:
(f) whether the industry participant disclosed the matter to the Authority:
(g) the length of time the breach remained unresolved:
(h) the participant’s actions on learning of the breach:
(i) any benefit that the participant obtained, or expected to obtain, as a result of the breach:
(j) any other matters that the Rulings Panel thinks fit.
Compare: SR 2003/374 r 109
57 Offence to breach certain orders of Rulings Panel
An industry participant that breaches a compliance order made under section 54(1)(f), or an order made under section 54(1)(c), commits an offence and is liable on conviction to a fine not exceeding $20,000.
Compare: SR 2003/374 r 108
Section 57: amended, on 1 July 2013, by section 413 of the Criminal Procedure Act 2011 (2011 No 81).
58 Suspension and termination for breach of certain Rulings Panel orders
The Rulings Panel may make a suspension order or a termination order against an industry participant if—
(a) the industry participant has failed to comply with an order of the Rulings Panel, and the failure has seriously prejudiced the operational or financial security of the wholesale market or transmission system for electricity; or
Part 2 s 62
(b) the Authority has suspended trading in a generator or purchaser under section 49 and applies to the Rulings Panel for a termination order.
Compare: SR 2003/374 r 138
59 Effect of suspension and termination orders
(1) A suspension order suspends all or specified rights under the Code of the industry participant against whom it is made, subject to any conditions set out in the order, and for the period specified in the order.
(2) A termination order terminates all or specified rights under the Code of the industry participant against whom it is made.
(3) A termination order does not affect any liability for payment of money under the Code before the date of the relevant order.
Compare: SR 2003/374 rr 138(1), 146(2), (3)
60 Offences relating to suspension and termination orders
An industry participant commits an offence, and is liable on conviction to a fine not exceeding $20,000, if it fails to comply with—
(a) a suspension order or a termination order; or
(b) any direction or arrangement made by the Rulings Panel under the regulations in relation to a suspension order or a termination order.
Compare: SR 2003/374 r 139
Section 60: amended, on 1 July 2013, by section 413 of the Criminal Procedure Act 2011 (2011 No 81).
61 Powers in relation to appeals and disputes
In determining an appeal, or resolving a dispute, of a kind identified in the regulations or the Code, the Rulings Panel may make any determination, order, or direction that it thinks fit, subject to—
(a) any general provisions of the regulations relating to appeals and disputes; or
(b) if there are specific provisions in the regulations or the Code relating to that kind of appeal or dispute, those provisions.
62 Orders generally
Every order of the Rulings Panel under section 54 or 58—
(a) must be in writing; and
(b) is subject to this subpart and any regulations that limit or restrict the amount of liability under an order or cumulative orders; and
(c) may be amended or revoked at any time by the Rulings Panel.
Part 2 s 63
Appeals
63 Appeal on ground of lack of jurisdiction
An industry participant that is affected by a decision of the Rulings Panel may appeal that decision to the High Court on the ground of lack of jurisdiction.
Compare: 1992 No 122 s 172KH
64 Appeal on question of law
There is a right of appeal to the High Court, on a question of law only, against any decision of the Authority or the Rulings Panel.
Compare: 1992 No 122 s 172KJ
65 Appeal against certain orders of Rulings Panel
(1) The Authority or an industry participant may appeal to the High Court against the following orders made by the Rulings Panel:
(a) an order requiring a public warning or reprimand to be issued (section 54(1)(b)):
(b) a pecuniary penalty order, or the amount payable under a pecuniary penalty order (section 54(1)(d)):
(c) a compensation order, or the amount payable under a compensation order (section 54(1)(e)):
(d) a compliance order (section 54(1)(f)):
(e) a costs order (section 54(1)(g)):
(f) an order by the Rulings Panel, in relation to a particular kind of appeal or dispute, that is identified in the regulations or the Code as an order that may be appealed to the High Court under this section.
(2) An industry participant may appeal to the High Court against a suspension order or termination order made by the Rulings Panel.
(3) An industry participant may exercise a right of appeal under this section only if the participant is—
(a) an industry participant in whose favour or against whom the order of the Rulings Panel is made; or
(b) an industry participant who joined or was joined as a party to the proceeding that is the subject of the appeal.
Compare: 1992 No 122 ss 172KK, 172KL
66 How and when appeals made
An appeal under this Part must be made by giving notice of appeal within 20 working days after the date of the decision or order appealed against or within any further time that the High Court allows.
Compare: 1992 No 122 s 172KJ(2)
Part 2 s 71
67 Determination of appeals
In determining an appeal under section 65, the High Court may do any 1 or more of the following things:
(a) confirm, modify, or reverse the order, or any part of it:
(b) exercise any of the powers that could have been exercised by the Rulings Panel in relation to the matter to which the appeal relates.
Compare: 1986 No 5 s 93; 1992 No 122 s 172KM
68 High Court may refer appeals back for reconsideration
(1) The High Court may, instead of determining an appeal, direct the Rulings Panel to reconsider, either generally or in respect of any specified matters, the whole or any specified part of the matter to which the appeal relates. (2) In giving any direction under this section, the court must— (a) advise the Rulings Panel of its reasons for doing so; and
(b) give to the Rulings Panel any directions that it thinks just concerning the reconsideration or otherwise of the whole or any part of the matter that is referred back.
(3) In reconsidering the matter, the Rulings Panel must have regard to the court’s reasons for giving the direction, and the court’s directions.
Compare: 1986 No 5 s 94; 1992 No 122 s 172KN
69 Provisions pending determination of appeal
If an appeal is brought against any decision or order of the Rulings Panel, the decision or order remains in full force pending the determination of the appeal, unless the High Court orders to the contrary.
Compare: 1986 No 5 s 95; 1992 No 122 s 172KO
70 High Court may order proceedings be heard in private
(1) The High Court may, in its discretion, order that the hearing or any part of the hearing of any appeal under this Part be held in private.
(2) The High Court may make an order prohibiting the publication of any report or description of a proceeding or any part of a proceeding (whether heard in public or in private), but no order may prohibit the publication of any determination of the court.
Compare: 1986 No 5 s 96; 1992 No 122 s 172KP
71 Appeal to Court of Appeal in certain cases
(1) Any party to an appeal before the High Court under this Part who is dissatisfied with a decision or order of the High Court, may, with the leave of the High Court or of the Court of Appeal, appeal to the Court of Appeal.
(2) Section 56 of the Senior Courts Act 2016 applies to the appeal.
Part 3 s 72
(3) In determining whether to grant leave to appeal under this section, the court to which the application for leave is made must have regard to the following matters:
(a) whether any question of law or general principle is involved:
(b) the importance of the issues to the parties:
(c) the amount of money in issue:
(d) any other matters that in the particular circumstances the court thinks fit.
(4) The court granting leave may, in its discretion, impose any conditions that it thinks fit, whether as to costs or otherwise.
Compare: 1986 No 5 s 97; 1992 No 122 s 172KQ
Section 71(2): amended, on 1 March 2017, by section 183(b) of the Senior Courts Act 2016 (2016 No 48).
Part 3 Separation of distribution from certain generation and retailing
Subpart 1—Separation of distribution from certain generation and retailing
Purpose and outline of Part
72 Purpose and outline of this Part
(1) The purpose of this Part is to promote competition in the electricity industry—
(a) by prohibiting a person who is involved in a distributor from being involved in a generator where that may create incentives and opportunities to inhibit competition in the electricity industry; and
(b) by restricting relationships between a distributor and a generator or a retailer, where those relationships may not otherwise be at arm’s length.
(2) In general terms, this Part imposes rules in respect of distributors as follows:
(a) ownership separation, if a person is involved both in a distributor and in a generator with more than 250 MW of generation directly connected to the national grid:
(b) corporate separation and arm’s-length rules, if a person is involved both in a distributor and in either or both of—
(i) a generator that generates more than 50 MW of generation connected to the distributor’s network:
(ii) a retailer that retails more than 75 GWh per year to customers connected to the distributor’s network:
Part 3 s 73
(c) use-of-systems agreement rules, if a connected retailer retails more than 5 GWh per year to customers connected to the distributor’s local network:
(d) rules preventing persons involved in distributors from paying retailers in respect of the transfer of retail customers:
(e) no-discrimination rules that apply when distributors, or electricity trusts or customer co-operatives involved in distributors, pay dividends or rebates.
(3) Subsection (2) is intended only as a guide to the general scheme and effect of this Part.
Compare: 1998 No 88 s 2(2)
Interpretation of Part
73 Interpretation in this Part
In this Part and Schedules 2 and 3, unless the context otherwise requires,— arm’s-length rules means the objective and rules set out in Schedule 3 assets includes property of any kind, whether tangible or intangible, and includes rights, interests, and claims of every kind however they arise associate has the meaning given in clause 8 of Schedule 2 business means any undertaking that is carried on whether for gain or reward or not control right has the meaning given in clause 5 of Schedule 2 customer, in respect of a retailer, means a consumer to whom that retailer sells electricity director, in relation to a body corporate, means a person occupying the position of director of the body corporate by whatever name called equity return right has the meaning given in clause 6 of Schedule 2 financial year means a period of 12 months ending with 31 March involved in has the meaning given in section 74 manager has the meaning given in clause 10 of Schedule 2 material influence has the meaning given in clause 7 of Schedule 2 nameplate means the full-load continuous rating of a generating plant under specific conditions as designated by its manufacturer and measured in megawatts in accordance with International Electrotechnical Commission Standard 60034-1 or any successor to that standard or any recognised equivalent standard person includes the trustees of a trust acting in that capacity
Part 3 s 74
rights means all rights, powers, privileges, and immunities, whether actual, contingent, or prospective subsidiary has the meaning given in sections 5 and 6 of the Companies Act
1993 total capacity means the total nominal capacity of a generator in a financial year (determined according to the nameplates of all of the generator’s generating plants).
74 Meaning of involved in
(1) For the purposes of this Act, a person is involved in a distributor, a generator, or a retailer if the person—
(a) carries on a business that does any of those things, either alone or together with its associates and either on its own or another’s behalf; or
(b) exceeds the 10% threshold in respect of a business that does any of those things; or
(c) has material influence over a business that does any of those things.
(2) A person exceeds the 10% threshold in respect of a business if the person— (a) has more than 10% of the control rights in the business; or
(b) has more than 10% of the equity return rights in the business; or
(c) is one of 2 or more associates who, in aggregate, have more than 10% of the control rights in the business; or
(d) is one of 2 or more associates who, in aggregate, have more than 10% of the equity return rights in the business.
(3) Involvement has a corresponding meaning.
(4) This section is subject to Schedule 2.
Compare: 1998 No 88 ss 7, 8
Ownership separation
75 Ownership separation
(1) A person who is involved in a distributor must not be involved in 1 or more generators that have a total capacity of more than 250 MW that is generated by 1 or more generating plants that are directly connected to the national grid.
(2) To avoid doubt, generation connected to a distribution network is not directly connected to the national grid.
Compare: 1998 No 88 s 17
Part 3 s 77
Corporate separation and arm’s-length rules
76 Corporate separation and arm’s-length rules applying to distributors and connected generators and connected retailers
(1) The person or persons who carry on the business of distribution must carry on that business in a different company from the company that carries on the business of a connected generator or a connected retailer.
(2) Every person who is involved in a distributor, and every person who is involved in a connected generator or a connected retailer, must comply, and ensure that the person’s businesses comply, with the arm’s-length rules.
(3) In this section, unless the context otherwise requires,— connected generator, in relation to a distributor, means a generator—
(a) that has a total capacity of more than 50 MW of generation that is connected to any of the distributor’s networks; and
(b) in respect of which the distributor, or any other person involved in the distributor, is involved
connected retailer, in relation to a distributor, means a retailer—
(a) that is involved in retailing more than 75 GWh of electricity in a financial year to customers who are connected to any of the distributor’s networks; and
(b) in respect of which the distributor, or any other person involved in the distributor, is involved.
Compare: 1998 No 88 ss 17D, 17E
Other rules
77 Use-of-systems agreements
(1) Every director of a distributor in respect of which there is a connected retailer or a connected generator must ensure that—
(a) the distribution business has a comprehensive, written use-of-systems agreement that provides for the supply of line function services and information to the connected retailer or connected generator (as the case may be); and
(b) the terms of that use-of-systems agreement do not discriminate in favour of 1 business and do not contain arrangements that include elements that the business usually omits, or omit elements that the business usually includes, in use-of-systems agreements with parties that are—
(i) connected or related only by the transaction or dealing in question; and
(ii) acting independently; and
(iii) each acting in its own best interests; and
Part 3 s 77
(c) the business operates in accordance with that use-of-systems agreement; and
(d) the business publicises that use-of-systems agreement and provides it to the Authority.
(2) A use-of-systems agreement required by subsection (1)(a) must be entered into, in the case of a business to which the corporate separation rule does not apply, as if the distribution business and the connected retailer or connected generator were separate legal persons.
(3) In this section, unless the context otherwise requires,— connected generator, in relation to a distributor, means a generator—
(a) that has a total capacity of more than 10 MW of generation that is connected to any of the distributor’s networks; and
(b) in respect of which the distributor, or any other person involved in the distributor, is involved
connected retailer, in relation to a distributor, means a retailer—
(a) that is involved in retailing more than 5 GWh of electricity on the distributor’s local network in a financial year to customers who are connected to that network; and
(b) in respect of which the distributor, or any other person involved in the distributor, is involved
local network means a network operated by a distributor in a contiguous geographic area or areas.
(4) The directors of the distributor must ensure that there is also publicised, and provided to the Authority, a certificate signed by those directors stating whether or not, in the preceding calendar year,—
(a) the terms in the use-of-systems agreement are a true and fair view of the terms on which line function services and information were supplied in respect of the retailing or generating to which the agreement relates during that year; and
(b) this section was otherwise fully complied with during that year.
(5) Every director commits an offence who—
(a) refuses or knowingly fails to comply with this section; or
(b) allows a use-of-systems agreement or a certificate to be publicised or provided to the Authority knowing that it is false or misleading in a material particular.
(6) Every director who commits an offence under subsection (5) is liable on conviction to a fine not exceeding $200,000.
Compare: 1998 No 88 s 17F
Section 77(6): amended, on 1 July 2013, by section 413 of the Criminal Procedure Act 2011 (2011 No 81).
Part 3 s 79
78 Person involved in distributor must not pay for transfer of retail customers to connected retailers
(1) A distributor, and any other person listed in subsection (2), must not pay, or offer to pay, any consideration to a retailer in respect of the transfer to a connected retailer of any retail customers who are connected to the distributor’s networks.
(2) The persons are—
(a) the distributor or any other person involved in the distributor:
(b) a connected generator in respect of the distributor or any other person involved in the connected generator:
(c) a connected retailer in respect of the distributor or any other person involved in the connected retailer.
(3) In this section, connected retailer and connected generator have the same meaning as in section 77.
(4) To avoid doubt, subsection (1) includes a prohibition on—
(a) any agreement to acquire the assets or voting securities of another retailer (regardless of whether any, or only nominal, consideration is attributed to customers) as a result of which there is a transfer of responsibility for retailing electricity to customers; and
(b) any consideration that is directly or indirectly or in whole or in part in respect of the transfer of any of another retailer’s customers or customer accounts.
(5) Every person commits an offence who knowingly fails to comply with this section and is liable on conviction to a fine not exceeding $500,000.
Section 78(5): amended, on 1 July 2013, by section 413 of the Criminal Procedure Act 2011 (2011 No 81).
79 No discrimination when paying rebates or dividends
(1) This section applies if a distributor has a connected retailer.
(2) Every person listed in subsection (3) must ensure that any rebates or dividends or other similar payments paid do not discriminate between—
(a) customers of the connected retailer; and
(b) customers of other retailers where those customers are connected to the distributor’s networks.
(3) The persons are—
(a) the directors of the distributor:
(b) the trustees of any customer trust or community trust that is involved in the distributor and the connected retailer:
(c) the directors of any customer co-operative that is involved in the distributor and the connected retailer.
Part 3 s 80
(4) In this section, connected retailer has the same meaning as in section 77.
(5) Every director and trustee commits an offence who knowingly fails to comply with this section and is liable on conviction to a fine not exceeding $200,000.
Section 79(5): amended, on 1 July 2013, by section 413 of the Criminal Procedure Act 2011 (2011 No 81).
Subpart 2—Enforcement and general provisions
Enforcement and penalties for this Part
80 Pecuniary penalties
(1) If the High Court is satisfied on the application of the Authority that a person has breached a provision of this Part, the court may order the person to pay to the Crown a pecuniary penalty that the court determines to be appropriate.
(2) The amount of any pecuniary penalty must not, in the case of an individual, exceed $500,000 in respect of each act or omission.
(3) The amount of any pecuniary penalty must not, in the case of a body corporate, exceed, in respect of each act or omission, the greater of— (a) $10 million; or (b) either,—
(i) if it can be readily ascertained and if the court is satisfied that the contravention occurred in the course of producing a commercial gain, 3 times the value of any commercial gain resulting from the contravention; or
(ii) if the commercial gain cannot be readily ascertained, 10% of the turnover of the body corporate and all of its interconnected bodies corporate (within the meaning of the Commerce Act 1986 and section 92) (if any).
(4) In any proceedings under this section for a pecuniary penalty, the standard of proof is the standard of proof applying in civil proceedings.
(5) In determining whether to make a pecuniary penalty order and, if so, the amount of the order, the court must have regard to all relevant matters, including—
(a) the nature and extent of the act or omission:
(b) the nature and extent of any loss or damage suffered by any person as a result of the act or omission:
(c) the circumstances in which the act or omission took place:
(d) whether the person has previously been found by the court in proceedings under this Part (or any predecessor to this Part) to have engaged in any similar conduct.
Compare: 1986 No 5 s 80; 1998 No 88 s 51
Part 3 s 83
81 Injunctions
(1) Where it appears to the High Court, on the application of the Authority or any other person, that a person intends to engage, or is engaging, or has engaged, in conduct that constitutes or would constitute a breach of a provision of this Part, the court, by order, may do all or any of the following things:
(a) grant an injunction restraining any person from engaging in conduct that constitutes or would constitute such a breach:
(b) impose on any person obligations to be observed in the carrying on of any business or the safeguarding of any business or any assets of any business:
(c) provide for the carrying on of any business or the safeguarding of any business or assets of any business, either by the appointment of a person to conduct or supervise the conduct of any business (on such terms and with such powers as may be specified or described in the order), or in any other manner, as the court thinks necessary in the circumstances of the case.
(2) In any proceedings under this section, the Authority, upon the order of the court, may obtain discovery and administer interrogatories.
Compare: 1986 No 5 s 84; 1998 No 88 s 52
82 Actions for damages
Every person is liable in damages for any loss or damage caused by that person engaging in conduct that constitutes a breach of a provision of this Part.
Compare: 1986 No 5 s 82; 1998 No 88 s 53
83 Other powers to give directions, reopen agreements
(1) If the High Court is satisfied, on the application of the Authority or any other person, that a person has breached a provision of this Part, the court may give directions ordering a person in breach to renegotiate any agreement that contravenes, or gives rise to a breach of, a provision of this Part, on such terms as the court specifies.
(2) If directions under subsection (1) are not complied with to the satisfaction of the court, the court may—
(a) reopen any agreement that breaches, or gives rise to a breach of, a provision of this Part and make any orders it deems just and equitable for the purpose of reopening the transaction and setting aside the breach, and, if appropriate, reinstating the parties as nearly as may be in their former positions:
(b) give directions concerning the business or property of the person, or the management or administration of that person’s business or property
Part 3 s 84
(including a direction that a person cease to be a manager of the business), and every person is bound by the directions.
Compare: 1998 No 88 s 56
84 Miscellaneous provisions relating to civil proceedings under this Part
(1) In any civil proceedings under this Part, the Authority, upon the order of the High Court, may obtain discovery and administer interrogatories.
(2) Civil proceedings under this Part may not be commenced more than 3 years after the matter giving rise to the breach arose.
(3) Where conduct by any person constitutes a breach of 2 or more provisions of this Part, civil proceedings may be instituted under this Part against that person in relation to the breach of any 1 or more of the provisions; but no person is liable to more than 1 pecuniary penalty under this Part in respect of the same conduct.
(4) Criminal proceedings under this Part may be started against a person whether or not proceedings for an order under section 80 have been started against the person for the same or substantially the same breach in respect of which the criminal proceedings have been started.
(5) Uncompleted proceedings for an order under section 80 must be stayed if criminal proceedings are started or have already been started against the person for the same or substantially the same breach in respect of which the order is sought.
Compare: 1986 No 5 s 80(2)–(6); 1996 No 30 s 124F; 1998 No 88 s 57
85 Application of Commerce Act 1986 provisions
The following provisions of the Commerce Act 1986 apply for the purpose of the exercise by the Authority and the High Court of their jurisdiction and powers under this Part as if the Authority were the Commerce Commission, as if references to provisions of the Commerce Act 1986 were references to corresponding provisions of this Part of this Act, and with other necessary modifications:
(a) sections 77 and 78 (lay members):
(b) section 79 (evidence not otherwise admissible):
(c) section 88A (when undertaking as to damages not required by Authority):
(d) section 89 (other orders):
(e) section 90 (conduct by servants or agents):
(f) Part 7 (except sections 98H, 99A, 104, 105, 106, 108, 110, and 111).
Compare: 1998 No 88 s 58
Part 3 s 89
86 Additional proceedings
Proceedings brought under this Part are in addition to any proceedings brought under any other Act.
Compare: 1998 No 88 s 59
Territorial application of this Part
87 Application to persons outside New Zealand
This Part extends to persons outside New Zealand who are involved in a distributor, generator, or retailer in New Zealand.
Compare: 1986 No 5 s 4(3); 1998 No 88 s 15
Disclosure and reporting to Authority
88 Disclosure of information to Authority
(1) Each director of a distributor referred to in section 77(1) (use-of-system agreements) must ensure that the distributor discloses the quantity of electricity sold each financial year by connected retailers to customers who are connected to its local network (within the meanings in that section).
(2) The disclosure must be made in a statement to the Authority within 2 months after the end of the financial year.
(3) The statement must be in the form prescribed by the Authority from time to time.
(4) The statement must be publicised by the Authority and the distributor.
(5) Every director commits an offence who—
(a) refuses or knowingly fails to comply with this section; or
(b) provides the statement to the Authority knowing that it is false or misleading in a material particular.
(6) Every director who commits an offence under subsection (5) is liable on conviction to a fine not exceeding $200,000.
Compare: 1998 No 88 s 70A
Section 88(6): amended, on 1 July 2013, by section 413 of the Criminal Procedure Act 2011 (2011 No 81).
89 Directors must report compliance with arm’s-length rules
(1) Each director of a business to which the arm’s-length rules apply must provide to the Authority, no later than 31 March in each year, a statement confirming whether or not the director has complied with all of the arm’s-length rules during the preceding calendar year.
(2) The directors and the Authority must ensure that the statement is publicised.
(3) Every director commits an offence who—
(a) refuses or knowingly fails to comply with this section; or
Part 3 s 90
(b) provides the statement to the Authority knowing that it is false or misleading in a material particular.
(4) Every person who commits an offence under subsection (3) is liable on conviction to a fine not exceeding $200,000.
Compare: 1998 No 88 s 70B
Section 89(4): amended, on 1 July 2013, by section 413 of the Criminal Procedure Act 2011 (2011 No 81).
Exemptions
90 Exemptions
(1) The Authority may, by notice in the Gazette, exempt—
(a) any business or involvement from the application of this Part; or (b) any person from compliance with any provisions of this Part.
(2) The Authority may grant an exemption only if it is satisfied that—
(a) the exemption will either promote, or not inhibit, competition in the electricity industry; and
(b) the exemption will not permit an involvement in a distributor and a generator or a retailer that may create incentives and opportunities to inhibit competition in the electricity industry.
(3) The exemption takes effect from the date specified in the exemption (which may not be earlier than the date of the Gazette notice).
(4) The Authority may grant an exemption on any terms and conditions that it reasonably considers are necessary to give effect to the purpose of this Part.
(5) The Authority may in like manner vary or revoke any such exemption.
(6) The Authority must make publicly available a list of all current exemptions under this section.
(7) [Repealed]
Compare: 1998 No 88 s 81
Section 90(7): repealed, on 28 October 2021, by section 3 of the Secondary Legislation Act 2021 (2021 No 7).
Application of other Acts
91 Application of Commerce Act 1986
Except as provided in section 92, nothing in this Part overrides or limits the provisions of the Commerce Act 1986.
Compare: 1998 No 88 s 82
92 Not interconnected under Commerce Act 1986
(1) For the purposes of Part 2 of the Commerce Act 1986, businesses to which section 76 (corporate separation and arm’s-length rules) applies are deemed to
Part 4 s 95
be separate bodies corporate that are not interconnected, despite the fact that they may have a common owner.
(2) Subsection (1) applies despite section 2(7) of the Commerce Act 1986.
Compare: 1998 No 88 s 83
93 Illegal contracts
(1) An agreement lawfully entered into does not become illegal or unenforceable by any party by reason of the fact that its performance is in breach of a provision of this Part.
(2) An agreement entered into in breach of a provision of this Part is voidable at the option of any party to the agreement who is not in breach of a provision of this Part by notice in writing to the other party to the agreement at any time within 1 month after the innocent party has notice that the agreement is in breach of a provision of this Part.
Compare: 1998 No 88 s 86
Section 93 heading: amended, on 1 September 2017, by section 347 of the Contract and Commercial Law Act 2017 (2017 No 5).
94 Substance matters, not form
Any question under this Part or Schedule 2 or 3 is to be determined according to the nature, substance, and economic effect of the interest or relationship or other facts, and independently of form.
Compare: 1988 No 234 s 5(4), (5), (6); 1998 No 88 s 14
Part 4 Industry participants and consumers
Subpart 1—Dispute resolution
95 Complaints about Transpower, distributors, and retailers
(1) Any person described in subsection (2) may make a complaint to the dispute resolution scheme concerning Transpower (except in its capacity as system operator) or any distributor or retailer.
(2) The persons who may make a complaint are any persons (including consumers, potential consumers, and owners and occupiers of land) except members of the dispute resolution scheme.
(3) The dispute resolution scheme is either—
(a) the approved scheme identified in clause 3 of Schedule 4; or
(b) the regulated scheme provided for in regulations made under clause 18 of Schedule 4.
Part 4 s 95A
(4) The procedures for making complaints to the dispute resolution scheme are as set out in the rules of the dispute resolution scheme.
Compare: 1992 No 122 s 158G
95A Indemnity disputes
The dispute resolution scheme may resolve disputes between members of the dispute resolution scheme concerning the application of the indemnity in section 46A of the Consumer Guarantees Act 1993 (an indemnity dispute).
Section 95A: inserted, on 17 June 2014, by section 16 of the Consumer Guarantees Amendment Act 2013 (2013 No 144).
96 Membership of dispute resolution scheme
(1) Transpower (other than in its capacity as system operator), and every distributor and retailer, must be a member of the dispute resolution scheme, unless exempt under subsection (3).
(2) A person commits an offence and is liable on conviction to a fine not exceeding $100,000 if the person knowingly refuses or fails to become a member of the dispute resolution scheme.
(3) A person need not be a member of a dispute resolution scheme if—
(a) the person is a member of a class of industry participants identified in regulations made under section 111 as a class of industry participants that need not be members; or
(b) the Minister of Consumer Affairs exempts the person by issuing an individual exemption notice in the Gazette that—
(i) identifies the person that is exempt from the obligation to be a member; and
(ii) gives reasons for the exemption.
(4) The Minister of Consumer Affairs may grant an individual exemption to a person only if he or she is satisfied that membership of the dispute resolution scheme by the person is not necessary in order to meet the purpose of the dispute resolution scheme because complaints are unlikely to be made against the person or because complaints should be made in another forum, and the person is unlikely to be involved in indemnity disputes.
(5) The Minister of Consumer Affairs may amend or revoke an individual exemption, by issuing a notice in the Gazette that identifies the exempt participant and gives reasons for the amendment or revocation, but only if the Minister—
(a) has given notice of the proposed amendment or revocation to the exempt person (where possible) and given the person a reasonable opportunity to comment on the proposal; and
(b) is satisfied that the amendment or revocation is necessary or desirable in order to meet the purpose of the dispute resolution scheme.
Part 4 s 97
(6) To avoid doubt, an individual exemption notice issued under subsection (3)(b) is not a regulation for any purpose.
(7) The Ministry must publicise a list of all current class and individual exemptions.
Section 96(2): amended, on 1 July 2013, by section 413 of the Criminal Procedure Act 2011 (2011 No 81).
Section 96(4): amended, on 17 June 2014, by section 16 of the Consumer Guarantees Amendment Act 2013 (2013 No 144).
97 Compliance with rules and binding settlements
(1) Members of the dispute resolution scheme must comply with the rules of the scheme.
(2) On the application of the person responsible for the dispute resolution scheme, the District Court may require a member of the scheme to do any of the following:
(a) comply with the rules of the scheme:
(b) comply with a binding settlement determined by the scheme in response to a complaint:
(c) comply with a binding settlement determined by the scheme in an indemnity dispute.
(3) If the District Court is satisfied that the terms of a binding settlement are manifestly unreasonable, the court’s order under subsection (2)(b) may modify the terms of the binding settlement, but only to the extent that the modification results in a binding settlement that could have been made under the dispute resolution scheme.
(4) If an order requiring a member to comply with a binding settlement includes a requirement that the member pay an amount of money to a person, that order (or part of the order) may be enforced as if it were a judgment by the District Court for the payment of a sum of money.
(5) A reference in this section to a member includes a reference to a person who was a member of the dispute resolution scheme at the relevant time but is no longer a member at the time of the application or order.
Section 97(2): amended, on 1 March 2017, by section 261 of the District Court Act 2016 (2016 No 49).
Section 97(2): amended, on 17 June 2014, by section 16 of the Consumer Guarantees Amendment Act 2013 (2013 No 144).
Section 97(2)(c): inserted, on 17 June 2014, by section 16 of the Consumer Guarantees Amendment Act 2013 (2013 No 144).
Section 97(3): amended, on 1 March 2017, by section 261 of the District Court Act 2016 (2016 No 49).
Section 97(4): amended, on 1 March 2017, by section 261 of the District Court Act 2016 (2016 No 49).
Part 4 s 98
98 Offence to fail to comply with District Court order
(1) A member or former member of the dispute resolution scheme who, knowing that the member or former member is subject to an order made under section 97, fails to comply with the order, or fails to comply with the order within the time or in the manner required by the order, commits an offence and is liable on conviction to a fine not exceeding $100,000.
(2) Nothing in this section applies to an order or part of an order of the District Court referred to in section 97(4).
Section 98(1): amended, on 1 July 2013, by section 413 of the Criminal Procedure Act 2011 (2011 No 81).
Section 98(2): amended, on 1 March 2017, by section 261 of the District Court Act 2016 (2016 No 49).
Subpart 2—Financial statements of customer and community trusts
99 Customer and community trusts must prepare and submit for audit financial statements
The trustees of a customer trust and the trustees of a community trust must, within 4 months after the end of each financial year of the trust,—
(a) prepare financial statements in accordance with generally accepted accounting practice (within the meaning of section 8 of the Financial Reporting Act 2013) in relation to the trust for that financial year; and (b) submit those financial statements to an auditor for audit.
Compare: 1992 No 122 s 158A
Section 99(a): replaced, on 1 April 2014, by section 126 of the Financial Reporting (Amendments to Other Enactments) Act 2013 (2013 No 102).
100 Publication of audited financial statements
(1) The trustees of a customer trust and the trustees of a community trust must make publicly available the financial statements referred to in section 99 and the auditor’s report on those financial statements.
(2) The trustees must also notify the fact that copies of the documents referred to in subsection (1) are so available (and where) by advertisement in the news section of 2 separate editions of each newspaper that is widely read by customers of the customer trust or by persons in the community of the community trust (as the case requires).
Compare: 1992 No 122 s 158B
101 Auditor of trusts
(1) The trustees of a community trust and the trustees of a customer trust must, in each financial year, hold an annual meeting of beneficiaries at which the beneficiaries appoint an auditor to hold office from the conclusion of that meeting until the conclusion of the next annual meeting of beneficiaries.
Part 4 s 102
(2) The trustees may fill any casual vacancy in the office of auditor by appointing an auditor to hold office until the conclusion of the next annual meeting of beneficiaries (but, while the vacancy remains, the surviving or continuing auditor, if any, may continue to act as auditor).
(3) The fees and expenses of the auditor must be fixed—
(a) at the annual meeting of beneficiaries or in the way the beneficiaries determine at the meeting, if the auditor is appointed at the annual meeting:
(b) by the trustees, if the auditor is appointed by the trustees.
(4) An auditor of a customer trust or community trust—
(a) must be a qualified auditor (within the meaning of section 35 of the Financial Reporting Act 2013) and, in selecting an auditor, the beneficiaries may seek the advice of the Auditor-General:
(b) must not be a trustee, a director, an employee, or an agent of the trust or of any distributor owned by the trust, or be otherwise disqualified from being an auditor under section 36(4)(b) and (d) of the Financial Reporting Act 2013.
(5) See sections 37 to 39 of the Financial Reporting Act 2013 (which provide for the appointment of a partnership and access to information in relation to a customer trust or community trust).
(6) In addition, sections 207B and 207T to 207W of the Companies Act 1993 apply in relation to the auditor.
(7) Those sections of the Companies Act 1993 apply as if references to a company were to a trust, references to a director were to a trustee, references to a board were to the trustees, references to shareholders were to beneficiaries, references to a subsidiary were to a distributor owned by the trust and the distributor’s subsidiaries, and all other necessary modifications were made.
Compare: 1992 No 122 s 158C
Section 101(4): replaced, on 1 April 2014, by section 126 of the Financial Reporting (Amendments to Other Enactments) Act 2013 (2013 No 102).
Section 101(5): replaced, on 1 April 2014, by section 126 of the Financial Reporting (Amendments to Other Enactments) Act 2013 (2013 No 102).
Section 101(6): replaced, on 1 April 2014, by section 126 of the Financial Reporting (Amendments to Other Enactments) Act 2013 (2013 No 102).
Section 101(7): inserted, on 1 April 2014, by section 126 of the Financial Reporting (Amendments to Other Enactments) Act 2013 (2013 No 102).
102 Procedures for annual meeting to appoint auditor
(1) The trustees must give no less than 14 days’ notice of the annual meeting of beneficiaries to appoint an auditor in the news section of 2 separate editions of each newspaper that is widely read by customers of the customer trust or by persons in the community of the community trust (as the case requires).
Part 4 s 103
(2) Every beneficiary has 1 vote.
(3) The quorum for the annual meeting is 20 beneficiaries.
(4) No business may be transacted at the annual meeting if a quorum is not present.
Compare: 1992 No 122 s 158D
103 Auditor-General to be auditor if no other auditor appointed
(1) If no auditor is appointed in accordance with section 101(1) or a casual vacancy in the office of auditor is not filled within 1 month after the vacancy occurring in accordance with section 101(2), the Auditor-General must be the auditor of a customer trust or community trust.
(2) The trustees of a customer trust or community trust must, within 5 working days after subsection (1) becoming applicable, give written notice to the Auditor-General of this fact.
(3) If the Auditor-General becomes the auditor of a trust, the sections and Parts of the Public Audit Act 2001 listed in section 19 of that Act apply to the trust, until an auditor is appointed at an annual meeting of beneficiaries, as if references in those sections to a public entity were references to the trust and with any other necessary modifications.
Compare: 1992 No 122 s 158E
104 Offences, enforcement, and application of sections 99 to 103
(1) The trustees of a customer trust and the trustees of a community trust must comply with sections 99 to 103, rather than section 46A of the Energy Companies Act 1992.
(2) Every trustee commits an offence and is liable on conviction to a fine not exceeding $200,000 who, without lawful justification or excuse, knowingly acts in breach of, or fails to comply in any respect with, any provision of sections 99 to 103.
(3) Except as provided in subsection (1), nothing in sections 99 to 103 limits any other enactment or rule of law concerning the maintenance and auditing of the financial statements of a trust.
(4) For the purpose of enforcing sections 99 to 103 and any regulations made under section 114, the Authority’s monitoring, investigation, and enforcement powers in Part 2 apply to trustees of customer trusts and trustees of consumer trusts as if those trustees were industry participants.
Compare: 1992 No 122 s 158F
Section 104(2): amended, on 1 July 2013, by section 413 of the Criminal Procedure Act 2011 (2011 No 81).
Part 4 s 105
Subpart 3—Continuance of supply
105 Continuance of distributors’ supply obligation
(1) This section applies to a distributor who, in relation to any place,—
(a) is, immediately before the repeal by this Act of section 62 of the Electricity Act 1992, prohibited from ceasing to supply line function services to the place without the prior consent of either the Minister or every consumer who would be affected by the cessation of those services; or
(b) is the successor in business to a distributor referred to in paragraph (a).
(2) A distributor to whom this section applies must, in relation to the place referred to in subsection (1), either—
(a) supply line function services to the place so that the place is within the distributor’s network; or
(b) supply the place with electricity from an alternative source.
(3) The obligation in subsection (2) is subject to anything to the contrary in the Electricity Act 1992, any regulations made under section 169 of that Act, or any written agreement, entered into before this section comes into force, between the distributor and a landowner who is, or would be but for the agreement, affected by the obligation.
(4) A distributor who is obliged under subsection (2) to supply line function services or electricity from an alternative source to a place commits an offence, and is liable on conviction to a fine not exceeding $10,000 and to a further fine not exceeding $1,000 for every day or part of a day during which the offence continues, if the distributor,—
(a) having been made aware that supply to the place has ceased in the circumstances described in section 106(2)(a), fails to resume supply as soon as is reasonable in the circumstances; or
(b) knowingly ceases to supply line function services or electricity (as the case may be) to the place, other than in the circumstances described in section 106(2)(b) or (c).
(5) In this section and sections 106 to 108,— landowner, in relation to a place, means a person who owns the lines or electrical installations at the place, being lines or electrical installations to which a distributor’s lines are connected
supplying electricity from an alternative source means supplying a place with electricity from a source other than a distributor’s network, and includes, if necessary, supplying the associated line function services to deliver that electricity.
Compare: 1992 No 122 s 62
Section 105(4): amended, on 1 July 2013, by section 413 of the Criminal Procedure Act 2011 (2011 No 81).
Part 4 s 106
106 Cessation and suspension of supply obligation
(1) A distributor’s obligation under section 105(2) comes to an end with respect to a place if—
(a) the landowner and (if the landowner is not the consumer) the consumer, or the Minister, agree in writing to the obligation coming to an end; or
(b) the obligation is assigned to, or assumed by, a successor in business to the distributor.
(2) The obligation in section 105(2) is suspended, in relation to any place, in any of the following circumstances:
(a) the supply of line function services or electricity from an alternative source has ceased as a result of circumstances beyond the control of the distributor (such as fire, earthquake, or inevitable accident):
(b) the supply of line function services or electricity from an alternative source needs to cease for reasons of safety or in order to carry out maintenance or upgrading work:
(c) the distributor, or a retailer, is entitled to cease supply (whether of line function services or electricity) because of a failure to pay money due on account to the distributor or retailer in respect of the place.
(3) If the supply of line function services or electricity from an alternative source ceases in any of the circumstances described in subsection (2), the cessation may continue only for as long as the reason for cessation continues.
107 Proposal to supply electricity from alternative source
(1) A distributor to whom section 105 applies, and who proposes to comply with section 105(2) by supplying a place with electricity from an alternative source, must give at least 6 months’ notice of the proposal to—
(a) every consumer affected by the proposal; and
(b) if the landowner is not the consumer, the landowner; and
(c) every retailer who supplies electricity to the place; and (d) the public in the district in which the place is situated.
(2) The notice to each affected consumer and any landowner must—
(a) outline the proposal; and
(b) describe how, under the proposal, the consumer’s reasonable electricity needs will be met; and
(c) give the consumer and any landowner a reasonable period in which to comment on the proposal.
(3) If the distributor is unable to locate a landowner of a place after taking reasonable steps to do so, the distributor is not required to give notice to the landowner under subsection (1).
Part 5 s 109
(4) The notice to the public must be by way of a notice—
(a) published in a newspaper that is published at least weekly and that circulates in the district to which the proposal relates; and
(b) that outlines the proposal and specifies the time within which any person may comment on it.
(5) The distributor must have regard to any comments received in response to the proposal.
108 Application of other enactments
(1) Any obligations under the following that apply to retailers apply to a distributor in connection with any supply by the distributor of electricity from an alternative source, if that supply is in fulfilment of the supply obligation in section 105(2):
(a) obligations under this Act, the regulations, and the Code:
(b) obligations under the Electricity Act 1992 and any regulation made under that Act.
(2) However, regulations made under section 113 about low fixed charge tariff options do not apply to a distributor in respect of consumers to whom the distributor supplies electricity from an alternative source.
(3) If a distributor, during a trial or transition in the course of complying with section 105(2), both supplies a place with line function services that connect the place to a network and, at the same time, supplies the place with electricity from an alternative source, the distributor is not to be treated as thereby being involved in generation or retailing for the purposes of Part 3.
(4) For the purposes of subpart 9 of Part 4 of the Commerce Act 1986, the Commerce Commission must treat the costs of providing electricity to a place from an alternative source, and any cost arising in respect of a place from an agreement under section 106(1)(a), as if the costs were the cost of providing electricity lines services (as defined in section 54C of the Commerce Act 1986).
Part 5 Miscellaneous
Subpart 1—Regulations
109 Regulations identifying industry participants and market operation service provider roles
(1) The Governor-General may, by Order in Council made on the recommendation of the Minister, given after consulting the Authority, make regulations for the following purposes:
Part 5 s 110
(a) identifying which industry service providers, in addition to those listed in section 7(2), are industry participants:
(b) identifying market operation service provider roles that are additional to those listed in the definition of market operation service provider in section 5.
(2) Regulations under this section are secondary legislation (see Part 3 of the Legislation Act 2019 for publication requirements).
Legislation Act 2019 requirements for secondary legislation made under this section
Publication PCO must publish it on the legislation website and notify LA19 s 69(1)(c) it in the Gazette
Presentation The Minister must present it to the House of LA19 s 114, Sch 1
Representatives cl 32(1)(a)
Disallowance It may be disallowed by the House of Representatives LA19 ss 115, 116
This note is not part of the Act.
Section 109(2): inserted, on 28 October 2021, by section 3 of the Secondary Legislation Act 2021 (2021 No 7).
110 Class exemptions relating to registration and Code compliance
(1) The Governor-General may, by Order in Council made on the recommendation of the Minister responsible for Part 2, given after receiving a recommendation from the Authority, make regulations that do either or both of the following:
(a) identify a class of industry participants that is exempt from the obligation in section 9(1)(a) to register:
(b) identify a class of industry participants that is exempt from the obligation in section 9(1)(b) to comply with the Code or specific provisions of the Code.
(2) Regulations made under subsection (1)(b) may exempt a class of industry participants from all or specified provisions of the Code.
(3) Regulations under this section are secondary legislation (see Part 3 of the Legislation Act 2019 for publication requirements).
Legislation Act 2019 requirements for secondary legislation made under this section
Publication PCO must publish it on the legislation website and notify LA19 s 69(1)(c) it in the Gazette
Presentation The Minister must present it to the House of LA19 s 114, Sch 1
Representatives cl 32(1)(a)
Disallowance It may be disallowed by the House of Representatives LA19 ss 115, 116
This note is not part of the Act.
Section 110(3): inserted, on 28 October 2021, by section 3 of the Secondary Legislation Act 2021 (2021 No 7).
111 Class exemptions relating to membership of dispute resolution scheme
(1) The Governor-General may, by Order in Council made on the recommendation of the Minister of Consumer Affairs, make regulations identifying a class of
Part 5 s 112
industry participants that is exempt from the obligation in section 96(1) to be a member of a dispute resolution scheme.
(2) Regulations under this section are secondary legislation (see Part 3 of the Legislation Act 2019 for publication requirements).
Legislation Act 2019 requirements for secondary legislation made under this section
Publication PCO must publish it on the legislation website and notify LA19 s 69(1)(c) it in the Gazette
Presentation The Minister must present it to the House of LA19 s 114, Sch 1
Representatives cl 32(1)(a)
Disallowance It may be disallowed by the House of Representatives LA19 ss 115, 116
This note is not part of the Act.
Section 111(1): amended, on 12 December 2012, by section 4 of the Electricity Industry Amendment Act 2012 (2012 No 102).
Section 111(2): inserted, on 28 October 2021, by section 3 of the Secondary Legislation Act 2021 (2021 No 7).
112 Regulations relating to monitoring, investigating, and enforcing Code
(1) The Governor-General may, by Order in Council made on the recommendation of the Minister responsible for Part 2, given after consulting the Authority, make regulations for all or any of the following purposes:
(a) requiring industry participants to report breaches or possible breaches of the Code, and prescribing procedures relating to such reporting:
(b) prescribing the practices and procedures of the Authority in relation to monitoring compliance with the Code:
(c) prescribing the practices and procedures of the Authority and the Rulings Panel in relation to the investigation of breaches and possible breaches of the Code (including the appointment and powers of investigators) and other enforcement measures:
(d) prescribing the information that the Authority must or may require from industry participants generally, or classes of industry participants, and regulating what it must or may do with such information:
(e) regulating the membership and operation of the Rulings Panel:
(f) identifying the kinds of appeals and disputes that may be determined by the Rulings Panel:
(g) prescribing, both generally and in relation to specific kinds of appeal or dispute, practices and procedures of the Rulings Panel for dealing with appeals and disputes, whether those appeals and disputes are identified in the regulations or the Code:
(h) prescribing determinations, orders, or directions, or imposing limits on any determinations, orders, or directions, that the Rulings Panel may make in relation to specific kinds of appeals and disputes (whether those
Part 5 s 113
appeals and disputes are identified in the regulations or the Code), and providing for any associated rights of appeal:
(i) restricting or limiting the amount of liability of, or the amount of any penalty that may be imposed upon, an industry participant or class of industry participant:
(j) identifying regulations the breach of which are to be treated as a breach of the Code:
(k) providing for offences, punishable on conviction by a fine not exceeding $20,000, for breaching any regulation made under this section or breaching any order made by the Rulings Panel under the regulations.
(2) The requirement in subsection (1) to consult with the Authority does not apply to the first regulations made under this section if—
(a) the regulations largely correspond to Parts 4 to 8 of the Electricity Governance Regulations 2003, adapted as necessary for consistency with this Act; and
(b) the Minister or the Electricity Commission has consulted with interested parties on any material changes.
(3) Regulations under this section are secondary legislation (see Part 3 of the Legislation Act 2019 for publication requirements).
Compare: 1992 No 122 ss 172D, 172K(a)
Legislation Act 2019 requirements for secondary legislation made under this section
Publication PCO must publish it on the legislation website and notify LA19 s 69(1)(c) it in the Gazette
Presentation The Minister must present it to the House of LA19 s 114, Sch 1
Representatives cl 32(1)(a)
Disallowance It may be disallowed by the House of Representatives LA19 ss 115, 116
This note is not part of the Act.
Section 112(1)(k): amended, on 1 July 2013, by section 413 of the Criminal Procedure Act 2011 (2011 No 81).
Section 112(3): inserted, on 28 October 2021, by section 3 of the Secondary Legislation Act 2021 (2021 No 7).
113 Regulations about tariffs and other consumer issues
(1) The Governor-General may, by Order in Council made on the recommendation of the Minister given after the consultation referred to in subsection (4), make regulations for the purpose of—
(a) regulating the type of tariffs for fixed and other charges that must or may be offered to domestic consumers; and
(b) promoting the fair treatment by distributors and retailers of domestic consumers and small businesses; and
Part 5 s 113
(c) enabling the protection of rural consumers, and consumers supplied with electricity from an alternative source under section 105, from unfair rates of change in the prices charged to them.
(2) Regulations made under subsection (1) may, without limitation, do any of the following:
(a) require low fixed charge tariff options to be made available to consumers who use less than a prescribed amount of electricity, and impose requirements (including amounts, or ways of calculating amounts) on industry participants in order to ensure that those tariffs result in a benefit to domestic consumers who opt for them:
(b) provide for regional variations in the application of the regulations relating to low fixed charge tariff options:
(c) require distributors or retailers, or both, to provide information relating to the types of tariffs offered to consumers, including to low fixed charge tariffs:
(d) regulate distributors’ and retailers’ dealings with domestic consumers and small businesses, including requiring distributors and retailers to comply with any policies, practices, procedures, guidelines, or model contracts or clauses in contracts, that are set out or referred to in the regulations:
(e) regulate the rate of change in the prices charged by distributors to rural consumers on a network as compared with the rate of change in the prices charged to comparable non-rural consumers on the same network:
(f) regulate the rate of change in the prices charged to consumers supplied with electricity from an alternative source under section 105:
(g) provide for offences, punishable on conviction by a fine prescribed by the regulations but not exceeding $100,000, for breaching any regulation made under this section.
(3) Regulations made under this section may include any other provisions necessary or desirable for monitoring and enforcing compliance with the regulations.
(4) Before recommending an Order in Council under this section, the Minister must—
(a) consult with the Minister of Consumer Affairs; and
(b) obtain and consider advice from the Authority on the impact of the proposed Order in Council on the promotion of competition in, the reliable supply by, and the efficient operation of, the electricity industry.
(5) In this section,— rural consumer means a consumer in a sparsely populated area small business means a non-domestic consumer that consumes less than 40 MWh per year.
Part 5 s 114
(6) If any material is incorporated by reference in the regulations, Schedule 1 applies.
(7) The Electricity (Low Fixed Charge Tariff Option for Domestic Consumers) Regulations 2004 are deemed to have been made under this section.
(8) Regulations under this section are secondary legislation (see Part 3 of the Legislation Act 2019 for publication requirements).
Compare: 1992 No 122 ss 172B, 172D
Legislation Act 2019 requirements for secondary legislation made under this section
Publication PCO must publish it on the legislation website and notify LA19 s 69(1)(c) it in the Gazette
Presentation The Minister must present it to the House of LA19 s 114, Sch 1
Representatives cl 32(1)(a)
Disallowance It may be disallowed by the House of Representatives LA19 ss 115, 116
This note is not part of the Act.
Section 113(2)(g): amended, on 1 July 2013, by section 413 of the Criminal Procedure Act 2011 (2011 No 81).
Section 113(8): inserted, on 28 October 2021, by section 3 of the Secondary Legislation Act 2021 (2021 No 7).
114 Regulations promoting accountability in customer trusts and community trusts
(1) The Governor-General may, by Order in Council made on the recommendation of the Minister, make regulations for the purpose of promoting the accountability of customer trusts and community trusts.
(2) Regulations made under this section may, without limitation, do any of the following:
(a) require trustees to disclose specified information to beneficiaries of the trust:
(b) specify procedures concerning requests by beneficiaries for information from trusts and trustees, responses to such requests, and rights to review responses:
(c) require trustees to hold meetings for beneficiaries, and regulate the practices and procedures associated with those meetings.
(3) Regulations made under this section may include provisions necessary or desirable for monitoring and enforcing compliance with the regulations, including making it an offence, punishable by a fine not exceeding $10,000, to fail to comply with a requirement of the regulations.
(4) If any material is incorporated by reference in the regulations, Schedule 1 applies.
(5) Regulations under this section are secondary legislation (see Part 3 of the Legislation Act 2019 for publication requirements).
Compare: 1992 No 122 s 172C
Part 5 s 116
Legislation Act 2019 requirements for secondary legislation made under this section
Publication PCO must publish it on the legislation website and notify LA19 s 69(1)(c) it in the Gazette
Presentation The Minister must present it to the House of LA19 s 114, Sch 1
Representatives cl 32(1)(a)
Disallowance It may be disallowed by the House of Representatives LA19 ss 115, 116
This note is not part of the Act.
Section 114(5): inserted, on 28 October 2021, by section 3 of the Secondary Legislation Act 2021 (2021 No 7).
115 General regulation-making power
(1) The Governor-General may from time to time, by Order in Council, make regulations for all or any of the following purposes:
(a) prescribing the matters in respect of which fees or charges are payable under this Act or the regulations, the amounts of those fees or charges, or the method or rates by which they are to be assessed, the persons liable for payment of those fees or charges, and the circumstances in which the payment of the whole or any part of those fees or charges may be refunded or waived:
(b) providing for such other matters as are contemplated by, or are necessary for giving full effect to, this Act and for its due administration.
(2) Regulations under this section are secondary legislation (see Part 3 of the Legislation Act 2019 for publication requirements).
Compare: 1998 No 88 s 87
Legislation Act 2019 requirements for secondary legislation made under this section
Publication PCO must publish it on the legislation website and notify LA19 s 69(1)(c) it in the Gazette
Presentation The Minister must present it to the House of LA19 s 114, Sch 1
Representatives cl 32(1)(a)
Disallowance It may be disallowed by the House of Representatives LA19 ss 115, 116
This note is not part of the Act.
Section 115(2): inserted, on 28 October 2021, by section 3 of the Secondary Legislation Act 2021 (2021 No 7).
Subpart 2—State-owned enterprise asset reconfiguration and miscellaneous matters
State-owned enterprise asset reconfiguration: General provisions
116 Interpretation for subpart
In this subpart, unless the context otherwise requires,— board means the board of directors of a State generator
consent authority means a consent authority under the Resource Management Act 1991
Part 5 s 117
Genesis means Genesis Energy Limited, and includes any subsidiary of that company
Meridian means Meridian Energy Limited, and includes any subsidiary of that company
Mighty River means Mighty River Power Limited, and includes any subsidiary of that company permit means a water permit or a discharge permit granted, or deemed to be granted, under the Resource Management Act 1991
shareholding Ministers means the Minister of Finance and the Minister for State Owned Enterprises
State generator means each of Genesis, Meridian, and Mighty River
Waitaki Power Scheme means the activities allowed by the resource consents numbered from CRC905301.1 to CRC905366.1 relating to the generation of electricity within the Waitaki River system.
Compare: 1998 No 88 s 97
Section 116 Genesis: amended, on 21 November 2013, by clause 4 of the State-Owned Enterprises (Genesis Energy Limited) Order 2013 (SR 2013/435).
117 Directions that may be given by shareholding Ministers
(1) The purpose of this section is to improve competition in both wholesale and retail electricity markets, and make improvements in security of supply, by adjusting the configuration of assets held by State generators.
(2) The shareholding Ministers may, at any time before 1 November 2011, give to the board of all or any of the State generators 1 or more of the following directions:
(a) a direction requiring the State generators to enter into 1 or more longterm contracts (of up to 15 years’ duration) with each other for financial hedges for electricity for the purpose of this section:
(b) a direction requiring the transfer of ownership (such as by way of sale and purchase agreement) from Meridian to Genesis of all assets and any rights and obligations relating to Tekapo A and Tekapo B generating stations:
(c) a direction requiring Meridian to purchase from the Crown all assets and any rights and obligations of the Crown relating to the Whirinaki generating station:
(d) 1 or more directions requiring the State generators to enter into 1 or more contracts that are necessary or desirable to implement a direction under any of paragraphs (a) to (c) and specifying some or all of the terms and conditions of those contracts.
Compare: 1998 No 88 s 98(1)
Part 5 s 119
118 Process for giving directions
(1) The shareholding Ministers—
(a) may at any time advise the relevant board of their intentions or expectations with regard to directions to be given under section 117; and
(b) must advise the relevant board of the matters to be referred to in a direction to be given under section 117 at least 14 days before the direction is given; and
(c) must consider any comments that the relevant board makes to them relating to the direction within 10 days after the date on which the board receives the advice under paragraph (b).
(2) Every direction given under section 117 must be in writing.
(3) The Minister for State Owned Enterprises must—
(a) present a copy of any direction given under section 117 to the House of Representatives within 12 sitting days after the direction is given to the board; and
(b) publish a copy of it in the Gazette as soon as practicable after giving the direction.
(4) However, the Minister for State Owned Enterprises may withhold from disclosure under subsection (3) any part of a direction that he or she considers is commercially sensitive, and in that case must substitute a note of explanation for the parts withheld.
Compare: 1998 No 88 s 98(2), (7)
119 Legal effect of directions
(1) The shareholding Ministers may give a direction under section 117 despite anything to the contrary in sections 4 to 7 of the State-Owned Enterprises Act 1986 or in the Companies Act 1993 or any other Act or rule of law.
(2) The board must comply with a direction given to it under section 117 despite anything to the contrary in the State-Owned Enterprises Act 1986, the Companies Act 1993, or any other Act or rule of law.
(3) Neither the Crown nor any shareholding Minister is in breach of, or liable to any person under, sections 4 to 7 of the State-Owned Enterprises Act 1986, the Companies Act 1993, or any other Act or rule of law by reason of giving a direction under section 117 or advice under section 118.
(4) No State generator, and no director, employee, or contractor of, or adviser to, a State generator, is in breach of, or liable to any person under, the State-Owned Enterprises Act 1986, the Companies Act 1993, or any other Act or rule of law by reason of any act or omission reasonably believed by the person to be necessary or desirable—
(a) to give effect to, or as a consequence of, a direction given under section 117; or
Part 5 s 120
(b) as a result of advice given under section 118.
(5) In subsections (3) and (4), the references to any other Act do not extend to the Commerce Act 1986 (but section 130 provides specific authorisations under that Act).
(6) To avoid doubt, subsections (3) and (4) do not give any protection from liability for breach of, or default under, any agreement.
(7) No director, employee, or contractor of, or adviser to, a State generator is in breach of, or default under, any agreement, or in breach of confidence, or in the position of having committed any tort (including negligence) or other civil wrong, by reason of any act or omission referred to in subsection (4).
Compare: 1998 No 88 s 98(3)–(6)
Asset reconfiguration provisions in respect of Waitaki Power Scheme
120 Purposes of sections 121 to 126
The purposes of sections 121 to 126 are—
(a) to facilitate the transfer to Genesis of the permits in the Waitaki Power Scheme relating to the Tekapo A and Tekapo B generating stations; and
(b) to maintain, despite Meridian no longer controlling the entire Waitaki Power Scheme,—
(i) the conditions of the permits that relate to environmental effects; and
(ii) the rights and obligations as specified in the conditions of the permits; and
(iii) the rights and obligations as specified in the existing agreements referred to in section 123.
121 Process for Meridian and Genesis to recommend changes to permit conditions in respect of Waitaki Power Scheme
(1) Meridian and Genesis must, in consultation with the consent authority, identify, and agree (if possible) any recommended changes to the conditions of the permits that are, in the opinion of Meridian and Genesis, necessary to meet the purposes set out in section 120.
(2) The Minister, by notice to Meridian and Genesis, may specify a date by which the recommended changes must be provided to the Minister.
(3) Meridian and Genesis may provide separate or joint recommendations.
(4) Meridian and Genesis must provide the recommended changes to the Minister by the date specified by the Minister.
(5) The Minister must, as soon as practicable after receiving any recommended changes, notify the consent authority of the recommended changes, and specify a date by which the consent authority may make representations to the Minister
Part 5 s 122
about whether those changes would maintain the effects on the environment that are achieved by the current conditions of the permits.
122 Minister may change permit conditions by order
(1) The Minister may, after consultation with the Minister for the Environment, make an order changing 1 or more of the conditions of a permit.
(2) The Minister may make an order only if the Minister is satisfied that—
(a) the changes to the conditions are needed only because of the transfer of the Tekapo A and Tekapo B generating stations; and
(b) it is not reasonably practicable to achieve the purposes set out in section 120 by means of a direction requiring Meridian and Genesis to enter into 1 or more contracts with each other; and
(c) changes to the conditions achieve the purpose set out in section 120(b) in all material respects; and
(d) either or both of Meridian and Genesis have recommended changes to the conditions after consultation with the consent authority; and
(e) the Minister has considered any representations made by the consent authority by the date specified under section 121(5).
(3) An order under this section—
(a) [Repealed]
(b) takes effect on a date specified in the order (which may be on or before the date that the permits are transferred to Genesis under the Resource Management Act 1991 but may not be before the date of the notice in the Gazette); and
(c) takes effect as if it were a change to a condition that had been made by the consent authority.
(d) [Repealed]
(4) An order under this section is secondary legislation (see Part 3 of the Legislation Act 2019 for publication requirements).
Legislation Act 2019 requirements for secondary legislation made under this section
Publication | The maker must: | LA19 ss 73, 74(1)(a), |
| - notify it in the Gazette
- publicise it (see definition in section 5)
The consent authority must also publicise it as soon as practicable after it is made | Sch 1 cl 14 |
Presentation | The Minister must present it to the House of Representatives | LA19 s 114, Sch 1 cl 32(1)(a) |
Disallowance | It may be disallowed by the House of Representatives | LA19 ss 115, 116 |
This note is not part of the Act.
Section 122(3)(a): repealed, on 28 October 2021, by section 3 of the Secondary Legislation Act 2021 (2021 No 7).
Part 5 s 123
Section 122(3)(d): repealed, on 28 October 2021, by section 3 of the Secondary Legislation Act 2021 (2021 No 7).
Section 122(4): replaced, on 28 October 2021, by section 3 of the Secondary Legislation Act 2021 (2021 No 7).
123 Existing agreements with other parties in respect of Waitaki Power Scheme
(1) This section and section 124 apply to the following (the existing agreements):
(a) the agreements listed in Schedule 5; and
(b) any other written agreements to which Meridian is a party (other than employment agreements)—
(i) that, in the opinion of the Minister, relate directly to the ownership or operation of either or both of Tekapo A and Tekapo B generating stations and that Meridian will no longer be able to perform, or no longer requires, as a result of the transfer of ownership of the generating stations; and
(ii) in respect of which the Minister has given notice in the Gazette that this subpart applies.
(2) No existing agreement is terminated only because Meridian no longer controls the entire Waitaki Power Scheme.
(3) However, a party to an existing agreement (other than Meridian or Genesis) may, by notice in writing to the Minister, Meridian, and Genesis, terminate the party’s involvement in the agreement in accordance with section 124(2)(c) or (9).
124 Reconfiguration of existing agreements
(1) The shareholding Ministers may include, in a direction given under section 117(2)(b), 1 or more of the following:
(a) a direction requiring Meridian and Genesis to negotiate the retention or transfer, or the sharing or splitting (as the case may be), of the existing agreements in a way that meets the purposes set out in section 120:
(b) a direction requiring either or both of Meridian and Genesis to offer to any other parties that have rights or obligations under the existing agreements (third parties) 1 or more replacement contracts that are necessary to meet the purposes set out in section 120:
(c) dates by which things must be completed, for example,— (i) dates by which replacement contracts must be offered:
(ii) dates by which choices must be made under subsection (2) or (9).
(2) A third party that has rights or obligations under an existing agreement must choose, by the date specified under subsection (1)(c),— (a) to enter into any replacement contract that is offered; or
Part 5 s 125
(b) for the existing agreement to continue in accordance with a direction to be given under subsection (4); or
(c) to terminate the existing agreement.
(3) If a third party chooses to enter into any replacement contract that is offered, the existing agreement ceases to have effect to the extent that it is replaced by the replacement contract.
(4) If a replacement contract has not been entered into by the date specified in a direction under subsection (1)(c), the shareholding Ministers may give to the boards of Meridian and Genesis a further direction specifying— (a) which existing agreements Meridian must remain a party to; and
(b) which existing agreements Genesis must become a party to; and
(c) which agreements are to be shared between the generators by Genesis becoming a party to the agreements in addition to Meridian; and
(d) which agreements are to be split, by Meridian remaining a party in relation to certain provisions and Genesis replacing Meridian as a party in relation to other provisions.
(5) If a direction is given under subsection (4)(a) in respect of an existing agreement, Meridian and the third parties to the agreement remain subject to the agreement as if this Act had not been passed.
(6) If a direction is given under subsection (4)(b) in respect of an existing agreement, all rights and obligations of Meridian under the agreement become the rights and obligations of Genesis on the date specified in the direction.
(7) If a direction is given under subsection (4)(c) in respect of an existing agreement, all rights and obligations of Meridian under the agreement become the joint and several rights and obligations of Meridian and Genesis on the date specified in the direction.
(8) If a direction is given under subsection (4)(d) in respect of an existing agreement, on the date specified in the direction the rights and obligations of Meridian under the agreement remain with Meridian except to the extent that any of those rights and obligations are transferred to Genesis.
(9) However, a party to an existing agreement in respect of which a direction is given under subsection (4) (other than Meridian or Genesis) may terminate the party’s involvement in the agreement, by notice in writing to the Minister, Meridian, and Genesis given by the further date specified under subsection (1)(c).
(10) In this section, rights and obligations includes entitlements and liabilities.
125 Other provisions about directions
(1) Sections 118 and 119 apply to any direction given under section 124(4), but nothing in this section requires the terms and conditions of any agreement to be disclosed under section 118(3).
Part 5 s 126
(2) This section and section 124 do not limit section 117.
126 Interface with Resource Management Act 1991
(1) Sections 88 to 121 and 127 of the Resource Management Act 1991 do not apply in respect of any matters under sections 121 to 125.
(2) There are no other appeal rights in respect of any matters under sections 121 to 125.
(3) To avoid doubt, the Waitaki Catchment Water Allocation Regional Plan is not changed by this Act, and its effect on permits that are transferred or changed under this subpart is not affected by the transfer or change.
Asset reconfiguration provision in respect of Whirinaki
127 Whirinaki
(1) The Minister may terminate the Whirinaki agreement, at any time before its termination date, by notice in writing to the Authority.
(2) The Minister must publicise the termination as soon as practicable.
(3) Until the Whirinaki agreement terminates, the Whirinaki agreement continues as if—
(a) the Authority were the Commission and the reserve energy scheme were continuing; and
(b) this Act had not been passed.
(4) In this Part, the Whirinaki agreement means the reserve generation capacity agreement entered into between the Electricity Commission and Her Majesty the Queen in right of New Zealand.
Levy of industry participants
128 Levies
(1) Every industry participant (or prescribed class of industry participant) must pay to the Authority on behalf of the Crown a levy prescribed by regulations.
(2) The Governor-General may, by Order in Council made on the recommendation of the Minister, make regulations providing for the levy.
(3) The levy must be prescribed on the basis that the following costs should be met fully out of the levy:
(a) the costs of the Authority in performing its functions and exercising its powers and duties under this Act and any other enactment; and
(b) the costs that are associated with the Whirinaki agreement referred to in section 127, and any costs incurred by the Crown that are associated with the Whirinaki generating plant after the Whirinaki agreement is terminated; and
Part 5 s 128
(c) a portion of the costs of the Energy Efficiency and Conservation Authority in performing its functions and exercising its powers and duties under the Energy Efficiency and Conservation Act 2000 where the size of the portion to be met by levies under this Act is determined by the Minister; and
(d) the costs incurred by the Crown before 1 May 2014 in promoting to customers the benefits of comparing and switching retailers, subject to both of the following limits:
(i) a limit of $5 million per financial year; and
(ii) an overall limit of $15 million for the period commencing on
1 November 2010 and ending with 30 April 2014; and
(e) the costs of the Rulings Panel; and
(f) the costs of establishing and operating any regulated dispute resolution scheme in respect of the electricity industry under Schedule 4; and
(g) the costs incurred by the Crown in relation to developing and publishing regional electricity supply and demand forecasts and scenarios, and related information and analysis, for the purpose of assisting investment planning by industry participants; and
(h) for the first financial year to which the levy applies, the costs incurred by the Crown on or after 1 January 2010 relating to establishing the Authority, disestablishing the Electricity Commission, transferring functions to other agencies, and preparing the initial Code; and (i) the costs of collecting the levy money.
(4) The levy may be prescribed on the basis that any actual cost that could have been, but has not been, recovered as a levy shortfall for a year may be recovered (along with any financing charge) over any period of up to 5 years.
(5) The regulations may—
(a) specify the amount of the levy or method of calculating or ascertaining the amount of the levy:
(aa) include, in the method of calculating or ascertaining the amount of the levy, provisions related to any shortfall in recovering, or over-recovery of, the actual costs from a previous year:
(b) include or provide for including in the levy any shortfall in recovering the actual costs:
(c) refund or provide for refunds of any over-recovery of those actual costs:
(d) provide for different levies for different classes of industry participants:
(e) specify the financial year or part financial year to which a levy applies, and apply that levy to that financial year or part financial year and each subsequent financial year until the levy is revoked or replaced:
(f) provide for the payment and collection of levies:
Part 5 s 128
(g) require payment of a levy for a financial year or part financial year, irrespective of the fact that the regulations may be made after that financial year has commenced:
(h) exempt or provide for exemptions from, or provide for waivers of, the whole or any part of the levy for any case or class of cases.
(6) The levy for a financial year that starts after the Authority begins to carry out any additional function under this Act or any other Act may cover the costs of performing that additional function, irrespective of the fact that the regulations may be made and come into effect after the start of the financial year.
(7) The amount of any unpaid levy is recoverable in any court of competent jurisdiction as a debt due to the Authority on behalf of the Crown.
(8) The Authority must pay into a Crown Bank Account, and separately account for, each levy payment.
(9) Regulations under this section are secondary legislation (see Part 3 of the Legislation Act 2019 for publication requirements).
(10) If regulations authorise a person to grant exemptions or waivers referred to in subsection (5)(h),—
(a) an instrument granting an exemption or a waiver is secondary legislation (see Part 3 of the Legislation Act 2019 for publication requirements), unless it applies only in a particular case; and
(b) the regulations must contain a statement to that effect.
Legislation Act 2019 requirements for secondary legislation referred to in subsection (9)
Publication PCO must publish it on the legislation website and notify LA19 s 69(1)(c) it in the Gazette
Presentation The Minister must present it to the House of LA19 s 114, Sch 1
Representatives cl 32(1)(a)
Disallowance It may be disallowed by the House of Representatives LA19 ss 115, 116
This note is not part of the Act.
subsection (10) Publication | Legislation Act 2019 requirements for secondary legislation referred t a) See the relevant publication, presentation, and disallowance table in the secondary legislation referred to in subsection (9) | o in LA19 ss 73, 74, Sch 1 cl 14 |
Presentation | The Minister must present it to the House of Representatives, unless a transitional exemption applies under Schedule 1 of the Legislation Act 2019 | LA19 s 114, Sch 1 cl 32 |
Disallowance It may be disallowed by the House of Representatives This note is not part of the Act. | LA19 ss 115, 116 |
Section 128(3)(c): amended, on 1 July 2017, by section 4(1) of the Energy Innovation (Electric Vehicles and Other Matters) Amendment Act 2017 (2017 No 27).
Section 128(5)(aa): inserted, on 1 July 2017, by section 4(2) of the Energy Innovation (Electric Vehicles and Other Matters) Amendment Act 2017 (2017 No 27).
Section 128(9): inserted, on 28 October 2021, by section 3 of the Secondary Legislation Act 2021 (2021 No 7).
Part 5 s 129A
Section 128(10): inserted, on 28 October 2021, by regulation 49 of the Legislation Act (Amendments to Legislation) Regulations 2021 (LI 2021/247).
129 Authority consultation about request for appropriation
(1) The Authority must, before submitting a request to the Minister seeking an appropriation of public money for the following year, or any change to an appropriation for the current year, that relates to costs that are intended to be recovered by way of levies under section 128, consult about that request with—
(a) those industry participants who are liable to pay a levy under that section; and
(b) any other representatives of persons whom the Authority believes to be significantly affected by a levy.
(2) The Authority must, at the time when the request is submitted, report to the Minister on the outcome of that consultation.
(3) The Ministry must consult in a like manner in respect of a levy to recover costs referred to in section 128(3)(g).
(4) This section applies to requests in respect of the financial year beginning 1 July 2011 and later financial years.
Section 129 heading: amended, on 1 July 2017, by section 5(1) of the Energy Innovation (Electric Vehicles and Other Matters) Amendment Act 2017 (2017 No 27).
Section 129(1): amended, on 1 July 2017, by section 5(2) of the Energy Innovation (Electric Vehicles and Other Matters) Amendment Act 2017 (2017 No 27).
Section 129(2): amended, on 1 July 2017, by section 5(3) of the Energy Innovation (Electric Vehicles and Other Matters) Amendment Act 2017 (2017 No 27).
129A Energy Efficiency and Conservation Authority consultation about request for appropriation
(1) The Energy Efficiency and Conservation Authority must, before submitting a request to the Minister seeking an appropriation of public money for the following year, or any change to an appropriation for the current year, that relates to costs that are intended to be recovered by way of levies under section 128(3)(c), consult about that request with—
(a) those industry participants who are liable to pay a levy under that section; and
(b) any other representatives of persons whom the Energy Efficiency and Conservation Authority believes to be significantly affected by a levy.
(2) The Energy Efficiency and Conservation Authority must, at the time when the request is submitted, report to the Minister on the outcome of that consultation.
(3) This section applies to requests in respect of the financial year beginning 1 July 2018 and later financial years.
Section 129A: inserted, on 1 July 2017, by section 6 of the Energy Innovation (Electric Vehicles and Other Matters) Amendment Act 2017 (2017 No 27).
Part 5 s 130
Specific authorisations for purposes of Commerce Act 1986
130 Specific authorisations for purposes of Commerce Act 1986
(1) The following are specifically authorised for the purpose of section 43 of the Commerce Act 1986:
(a) anything done or omitted by the Authority, the Rulings Panel, or an industry participant that is reasonably necessary to comply with, enforce, or otherwise administer this Act, the regulations, or the Code; and
(b) the giving by the shareholding Ministers of a direction under this subpart; and
(c) anything done or omitted by a State generator, or a director or employee of a State generator, if the act or omission is reasonably necessary to— (i) comply with a direction given under this subpart; or
(ii) give effect to a contract entered into pursuant to a direction under section 117(2)(d); and
(d) anything done or omitted to be done by an industry participant for the purpose of developing and operating an active market for trading financial hedge contracts for electricity.
(2) Section 47 of the Commerce Act 1986 does not apply to any transfer of assets undertaken by a State generator pursuant to a direction given under section 117(2)(b) or (c).
Compare: 1992 No 122 s 172ZR
Distributors’ and grid owners’ exemption from liability
131 Distributors and grid owners exempt from liability for certain outages
No claim for damages may be made against a distributor or the owner of the national grid in relation to damage caused by, or arising from, an outage that resulted from the distributor or grid owner complying with— (a) the regulations or the Code; or
(b) any instruction issued by the Authority or the system operator under the regulations or the Code that the distributor or grid owner was obliged to comply with.
Subpart 2A—Secondary networks
Subpart 2A: inserted, on 1 July 2017, by section 7 of the Energy Innovation (Electric Vehicles and Other Matters) Amendment Act 2017 (2017 No 27).
131A Application of electricity industry legislation to secondary networks
(1) This Act, the regulations, and the Electricity Industry Participation Code apply, with all necessary modifications, to a secondary network provider as if that provider were a distributor.
Part 5 s 133
(2) In this section,— secondary network means equipment that—
(a) is used, designed, or intended for use in, or in connection with, the conveyance of electricity; and
(b) is indirectly connected to the national grid secondary network provider means a business that—
(a) is engaged in the conveyance of electricity on a secondary network; and
(b) provides services that are substantially similar to the services provided by a distributor.
Section 131A: inserted, on 1 July 2017, by section 7 of the Energy Innovation (Electric Vehicles and Other Matters) Amendment Act 2017 (2017 No 27).
Subpart 3—Transitional and consequential provisions
132 Interpretation
In this subpart, unless the context otherwise requires,—
commencement date means the date on which this section comes into force
Electricity Commission means the Electricity Commission continued by section 172M of the Electricity Act 1992 property—
(a) means every type of property; and
(b) includes money, and every type of estate and interest in property suitable alternative position, in relation to an employee, means a position— (a) for which the employee has the appropriate skills and experience; and
(b) the pay and conditions of which are, in their overall effect, no less favourable to the employee than those applying to the employee immediately before the date of the employee’s transfer to that position
transferred employee means a person who,—
(a) immediately before the commencement date, is employed by the Electricity Commission; and
(b) is transferred to the Authority under section 134(1)(f).
Dissolution of Electricity Commission
133 Electricity Commission dissolved
(1) The Electricity Commission is dissolved.
(2) The members of the board of the Electricity Commission cease to hold office at the close of the day before the commencement date.
Part 5 s 134
134 Consequences of dissolution
(1) On the commencement date,—
(a) the functions and powers of the Electricity Commission under any enactment vest in the Authority, but only to the extent that those functions and powers are consistent with the functions and powers of the Authority under this Act (subject to subsection (5)); and
(b) all property belonging to the Electricity Commission vests in the Authority; and
(c) all information held by the Electricity Commission is held by the Authority; and
(d) all money payable to or by the Electricity Commission becomes payable to or by the Authority; and
(e) all rights, liabilities, contracts, entitlements, and engagements of the Electricity Commission become the rights, liabilities, contracts, entitlements, and engagements of the Authority; and
(f) subject to section 137, every employee of the Electricity Commission becomes an employee of the Authority on the same terms and conditions as applied immediately before he or she became an employee of the Authority; and
(g) anything done, or omitted to be done, or that is to be done, by or in relation to the Electricity Commission is to be treated as having been done, or having been omitted to be done, or to be done, by or in relation to the Authority; and
(h) the commencement, continuation, or enforcement of proceedings by or against the Electricity Commission may instead be commenced, continued, or enforced by or against the Authority without amendment to the proceedings; and
(i) the completion of a matter or thing that would, but for section 133(1), have been completed by the Electricity Commission, may be completed by the Authority.
(2) Despite anything in subsection (1), the Authority may appoint a new chief executive or general manager to commence on or after the commencement date.
(3) The transfer of information from the Electricity Commission to the Authority under subsection (1)(c) does not constitute an action that is an interference with the privacy of an individual under section 69 of the Privacy Act 2020.
(4) The dissolution of the Electricity Commission does not, by itself, affect any of the following matters:
Part 5 s 136
(a) any decision made, or anything done or omitted to be done, by the Electricity Commission in relation to the performance of its functions or the exercise of its powers under any enactment:
(b) any proceedings commenced by or against the Electricity Commission:
(c) any other matter or thing arising out of the Electricity Commission’s performance or exercise, or purported performance or exercise, of its functions or powers under any enactment.
(5) Despite subsection (1)(a), it is a function of the Authority to perform any functions and exercise any powers of the Electricity Commission that are necessary or desirable for it to exercise or perform, on a temporary basis,—
(a) in order for it to comply with section 127; or
(b) in order to make a reserve supply determination, as referred to in section 136; or
(c) for the purpose of effectively managing the transition of functions from the Electricity Commission to the Authority.
Compare: 2008 No 47 Schedule 2 cl 26
Section 134(3): amended, on 1 December 2020, by section 217 of the Privacy Act 2020 (2020 No 31).
135 References in documents to Electricity Commission
On and after the commencement date, every reference in a document (other than an enactment) to the Electricity Commission must be read as a reference to the Authority, if—
(a) the document was written or prepared before the commencement date; and
(b) such a reading is consistent with this Act.
Compare: 2008 No 47 Schedule 2 cl 28
136 References to reserve generation capacity in resource consents
(1) This section applies to any condition of a resource consent, imposed before this section comes into force, that refers to a determination by the Electricity Commission that—
(a) reserve generation capacity is required to, or should, generate electricity; or
(b) reserve generation capacity is no longer required.
(2) After the date on which the Whirinaki agreement ends, any references to determinations referred to in subsection (1) must be read as references to the Authority making a reserve supply determination, or rescinding a reserve supply determination, as the case requires.
(3) The Authority may make or rescind a reserve supply determination only in accordance with criteria that are publicly available.
Part 5 s 137
(4) The Authority may delegate to the system operator the power under this section to make and rescind reserve supply determinations, but may not delegate the power to set the criteria published under subsection (3).
(5) A condition of a resource consent referred to in subsection (1) may be amended or revoked in the same way as any other condition of the resource consent.
137 Transferred employees
(1) The terms and conditions of employment of a transferred employee immediately before the commencement date continue to apply in relation to that employee until—
(a) those terms and conditions are varied by agreement between the transferred employee and the Authority; or
(b) the transferred employee accepts a subsequent appointment with the Authority.
(2) For the purposes of every enactment, law, determination, contract, and agreement relating to the employment of a transferred employee,—
(a) the employment agreement of that employee is to be treated as unbroken; and
(b) the employee’s period of service with the Electricity Commission, and every other period of service of that employee that is recognised by the Electricity Commission as continuous service, is to be treated as a period of service with the Authority.
(3) To avoid doubt, the employment of a transferred employee by the Authority does not constitute new employment for the purposes of the KiwiSaver Act 2006.
(4) A transferred employee is not entitled to receive any payment or benefit from the Electricity Commission or the Authority on the grounds that the person’s position in the Electricity Commission or Authority has ceased to exist, or the person has ceased to be an employee of the Electricity Commission as a result of the transfer to the Authority, if—
(a) the employee is transferred to a suitable alternative position with the Authority; or
(b) the person is offered a suitable alternative position by the Authority, the Commerce Commission, the Energy Efficiency and Conservation Authority, Transpower, or the Ministry, and—
(i) the offer is made in the period between the date on which this Act receives the Royal assent and the earlier of 1 January 2011 and the date on which the person’s employment with the Authority ceases; and
Part 5 s 141
(ii) the offer is made for employment that commences on or after the commencement date.
Compare: 2008 No 47 Schedule 2 cl 31
138 Government Superannuation Fund
(1) This section applies to every person who, immediately before the commencement date, is an employee of the Electricity Commission.
(2) Nothing in this Act affects any entitlement under the Government Superannuation Fund Act 1956 of a person to whom this section applies.
(3) This section is for the avoidance of doubt.
Compare: 2008 No 47 Schedule 2 cl 32
139 Complaints, investigations, etc, transfer to Authority
(1) On and from the commencement date, the Authority takes over responsibility for dealing with every matter, such as a complaint about a breach, or possible breach, of the Electricity Governance Rules 2003, or an investigation, that was before the Electricity Commission immediately before its disestablishment, provided the matter had not, before the commencement date, been referred to the Rulings Panel (see section 142).
(2) The processes, procedures, and rights of appeal set out in this Act and the regulations apply to—
(a) every matter referred to in subsection (1), as if the matter had arisen after the commencement date; and
(b) every such matter that is referred to the Authority after the commencement date and that concerns events that occurred before that date.
(3) However, the only penalties that may be imposed in relation to a matter that arose, or events that occurred, before the commencement date are the penalties that could have been imposed at the time that the matter arose or events occurred.
140 References to Electricity Governance Rules 2003 and certain regulations
Unless the context otherwise requires, a reference in any agreement, contract, or other document to the Electricity Governance Rules 2003 or to any provision of those rules, or to the regulations listed in section 34(1) or any provision of those regulations, must be read as a reference to the Code or to the corresponding provision of the Code, as the case requires.
Rulings Panel
141 Members of Rulings Panel
(1) Every person who, immediately before the commencement date, is a member of the Rulings Panel is to be treated as if he or she had been appointed as a member under section 24 in accordance with the regulations.
Part 5 s 142
(2) However, despite section 26(3), the terms and conditions (including remuneration) of a member of the Rulings Panel to whom subsection (1) applies remain the same after the commencement date as before it, unless and until the member’s appointment ends and he or she is reappointed as a member.
(3) The chairperson and deputy chairperson of the Rulings Panel are to be treated as if they had been appointed under section 24, except that the qualification contained in section 24(2)(a) does not apply to the chairperson.
142 Work of Rulings Panel
(1) All proceedings, appeals, disputes, or other matters before the Rulings Panel immediately before the commencement date must be dealt with as if this Act had not been enacted and as if the Electricity Governance Regulations 2003 were still in force.
(2) All matters that are referred to, or otherwise come before, the Rulings Panel after the commencement date must be dealt with under this Act and the regulations, subject to section 139(3).
(3) Nothing in this Act—
(a) affects or invalidates any order made by the Rulings Panel before the commencement date; or
(b) affects any appeal that is or may be brought against, or relating to, a determination or order of the Rulings Panel.
Commerce Commission
143 Investigations relating to separation of distribution from generation and retailing
(1) After the commencement date, the Commerce Commission may continue any investigations and proceedings in relation to a breach or possible breach of the Electricity Industry Reform Act 1998 as if that Act had not been repealed, but only if the Commerce Commission has, before the commencement date, confirmed in writing to a party to the investigation or proceedings that the investigation or proceeding has begun.
(2) Any breach or possible breach of the Electricity Industry Reform Act 1998 that is not referred to the Commerce Commission before the commencement date may be referred after that date to the Authority (but may not be referred to the Commerce Commission), in which case subpart 2 of Part 3 of this Act applies to the breach or possible breach.
(3) The Commerce Commission must, on request by the Authority, provide to the Authority any information it holds that the Authority considers is, or may be, relevant to a breach or possible breach of Part 3 of this Act.
Part 5 s 149
144 Exemptions granted under Electricity Industry Reform Act 1998
(1) Any exemption granted by the Commerce Commission under the Electricity Industry Reform Act 1998 from an obligation under that Act continues in force, until it is revoked or expires, as if it was granted by the Authority under this Act in respect of any corresponding obligation under this Act.
(2) The Authority must include any exemption that is continued in force by this section in the list of exemptions that it is required to make publicly available under section 90(6).
Subpart 4—Amendments to other enactments
Amendments to Commerce Act 1986
145 Amendments to Commerce Act 1986
Sections 146 to 156 amend the Commerce Act 1986.
146 Interpretation
(1) Section 2(1) is amended by inserting the following definition in its appropriate alphabetical order:
Authority means the Electricity Authority established under the Electricity Industry Act 2010
(2) Section 2(1) is amended by repealing the definition of Electricity Commission.
147 Matters covered by input methodologies
Section 52T(1)(b) is amended by inserting “, except where another industry regulator (such as the Electricity Authority) has the power to set pricing methodologies in relation to particular goods or services” after “methodologies”.
148 Commission’s costs in setting customised price-quality path
(1) The heading to section 53Y is amended by omitting “in setting” and substituting “relating to assessing, setting, and reconsidering”.
(2) Section 53Y(1) is amended by omitting “setting” and substituting “assessing a proposal for, and setting or reconsidering,”.
(3) Section 53Y is amended by inserting the following subsection after subsection (1):
(1A) | If the amount paid by a person in respect of a proposal for a customised pricequality path exceeds the Commission’s costs in assessing the proposal and (if applicable) setting or reconsidering the customised price-quality path, the Commission may refund the excess to the person who paid it. |
149 Interpretation for subpart
Section 54B is amended by adding the following subsection as subsection (2):
Part 5 s 150
(2) | References in this subpart to Transpower include references to Transpower in its role as system operator under the Electricity Industry Act 2010. |
150 Meaning of electricity lines services
(1) Section 54C is amended by repealing subsection (1) and substituting the following subsection:
(1) | In this subpart, unless the context otherwise requires, electricity lines services— (a) means the conveyance of electricity by line in New Zealand; and (b) with respect to services performed by Transpower, includes services performed as system operator. |
(2) The definition of associate in section 54C(4) is amended by omitting “section 12 of the Electricity Industry Reform Act 1998” and substituting “section 73 of the Electricity Industry Act 2010”.
(3) The definition of national grid in section 54C(4) is amended by omitting “section 2(1) of the Electricity Act 1992” and substituting “section 5 of the Electricity Industry Act 2010”.
151 Definition of consumer-owned
(1) Section 54D(1)(a) is amended by omitting “section 3 of the Electricity Industry Reform Act 1998” and substituting “clause 6 of Schedule 2 of the Electricity Industry Act 2010”.
(2) Section 54D(1) is amended by repealing paragraph (b) and substituting the following paragraph:
(b) | the trustees of each customer trust or community trust, or the committee of shareholders of each customer co-operative, as the case may be, that is referred to in paragraph (a) are elected by the persons who are consumers of the supplier in accordance with subsections (2A) to (2C); and |
(3) Section 54D is amended by inserting the following subsections after subsection (2):
(2A) | The requirements in respect of elections for the purposes of subsection (1)(b) are as follows: (a) every trustee of the customer trust or community trust, or every member of the committee of shareholders of each customer co-operative, as the case may be, must have been elected solely by the persons who are consumers of the supplier; and (b) either— (i) at least 90% of the persons who are consumers of the supplier at the time of the election are eligible to vote in those elections; or |
Part 5 s 151
| (ii) in the case of a customer trust or community trust, there is wardbased voting that complies with the requirements of subsection (2B); and (c) each consumer must have an equal vote. |
(2B) | The requirements for ward-based voting are as follows: (a) at least 90 % of the persons in a ward who are consumers of the supplier at the time of the election are eligible to vote in the election of all of the trustees of that ward; and (b) ward boundaries must provide for effective and fair representation of all consumers of the supplier, and in particular,— (i) the proportion of consumers in relation to the number of trustees of the relevant trust must be approximately equal in each ward; and (ii) the wards must not be based on volume of electricity supplied; and (c) ward boundaries must be reviewed periodically (at intervals determined by the Commission) in consultation with all consumers of the supplier. |
(2C) | A trustee of a customer trust or community trust, or a member of the committee of shareholders of a customer co-operative, as the case may be, must be treated as having been elected solely by the persons who are consumers of the supplier if the person— (a) has been declared to be elected without an election in the case of a nominee at an election where the number of nominations was equal to or less than the number of vacancies; or (b) has been declared to be elected as the next-highest-polling candidate in the case where a higher-polling candidate at the election was unable to fill the elected position; or (c) has been declared to be elected by the remaining trustees or members following a casual vacancy that arose between elections, provided that— (i) the person is the first person to have been so elected since the last election at which consumers of the supplier voted; and (ii) the person is elected to hold office only until the next scheduled election at which consumers of the supplier will vote. |
(2D) | The Commerce Commission may require a supplier that claims to meet the criteria in this section to verify that claim by statutory declaration. |
(2E) | The declaration must be made by the persons and in the form required by the Commerce Commission. |
This is a consolidation of the Electricity Industry Act 2010 that incorporates the amendments made to the legislation so that it shows the law as at its stated date.
A consolidation is taken to correctly state, as at its stated date, the law enacted or made by the legislation consolidated and by the amendments. This presumption applies unless the contrary is shown.
Energy Innovation (Electric Vehicles and Other Matters) Amendment Act 2017 (2017 No 27): Part 1