Source document: https://docs-lawep.s3.us-east-2.amazonaws.com/1698846737524.pdf (New Zealand)
Electricity Amendment Act 2004 Public Act Date of assent 2004 No 80 17 October 2004 Contents Title Commencement Purposes Interpretation New heading and section 158G inserted Complaints resolution system 158G Complaints resolution system New section 172A substituted 172A Outline of subpart Low ﬁxed charge tariff option for domestic consumers New heading and section 172CA inserted Regulations—Reserve energy 172CA Reserve energy New sections 172D to 172F substituted 172D Electricity governance regulations 172E Conditions and process for recommendations on electricity governance regulations 172F Assessment of proposed electricity governance regulations Amendments consequential on merger of sections 172D to 172G by section 9 Supplementary empowering provision for regulations and rules Page 3 4 4 4 5 5 6 6 6 7 7 8 8 13 15 15 16 1 Electricity Amendment Act 2004 2004 No 80 12 New sections 172KA to 172KQ and headings inserted Provisions that apply if electricity governance regulations or rules are in force 172KA Transmission agreements 172KB Party must co­operate with investigations 172KC Privileges protected 172KD Limits on investigation powers 172KE Rulings Panel may make certain orders 172KF Restriction of remedies 172KG Limit on tort claims against service providers Appeals 172KH Appeals on ground of lack of jurisdiction 172KI Judicial review not precluded 172KJ Appeals on question of law in relation to decisions by Commission or Rulings Panel 172KK Right of appeal against suspension or
 termination orders 172KL Persons entitled to appeal 172KM Determination of appeals 172KN High Court may refer appeals back to Commission or Rulings Panel for reconsideration 172KO Provisions pending determination of appeal 172KP High Court may order proceedings be heard in private 172KQ Appeal to Court of Appeal in certain cases Purpose New section 172M substituted 172M Continuation of Commission New section 172N substituted 172N Principal objectives and speciﬁc outcomes New section 1720 substituted 172O
 Functions of Commission Section 172W repealed New section 172X substituted 172X Objectives of recommendations Section 172Y repealed New section 172Z substituted 172Z Minister must have regard to recommendations Sections 172ZA and 172ZB repealed Levy of industry participants No 80 Electricity Amendment Act 2004 23 24 25 New section 172ZCA inserted 172ZCA Commission must consult about request for appropriation Amendments to Ombudsmen Act 1975 and Public Finance Act 1989 New subparts 2 and 3 substituted Subpart 2—Accountability of Electricity Commission 172ZJ Interpretation 172ZK Setting of GPS objectives and outcomes 172ZL Agreement of annual performance standards 172ZM Annual performance report to Minister 172ZN Minister must present annual performance report to House of Representatives 172ZO Assurance audit by Auditor­General 172ZP Report by Parliamentary Commissioner for Environment 172ZQ Functions under this subpart Subpart 3—Miscellaneous provisions 172ZR Speciﬁc authorisation for purposes of restrictive trade practices rules Schedule 2A amended Transitional provision relating to reserve energy Minister may direct Commission to enter contract relating to Whirinaki power station Provisions relating to direction Provisions relating to availability of contract Electricity Amendment Act 2001 amended Miscellaneous 26 27 28 29 30 s 1 29
 29 29 30 30 30 31 31 32 32 32 33 33 33 34 34 34 35 The Parliament of New Zealand enacts as follows: 1 (1) (2) Title This Act is the Electricity Amendment Act 2004.
In this Act, the Electricity Act 1992 is called “the principal Act”.

3 s 2 2 (1) (2) 3 Electricity Amendment Act 2004 2004 No 80 Commencement Section 30 (which relates to Transpower’s transitional pricing methodology) is deemed to have come into force on 26 Janu­ ary 2004.

The rest of this Act comes into force on the day after the date on which it receives the Royal assent.
Purposes The principal purposes of this Part are— (a) (b) (c) to improve security of supply of electricity: to provide beneﬁts for consumers of electricity: to rationalise and extend the electricity governance regulation­making and rule­making powers to reﬂect the establishment of the Electricity Commission and the conditions in the industry requiring regulation: to give new functions to the Electricity Commission: to otherwise facilitate a regulated electricity industry.
(d) (e) (2) 4 (1) Interpretation Section 2(1) of the principal Act is amended by repealing the deﬁnitions of EGB, EGB’s board or board, electricity gov­ ernance organisation, electricity governance regulations, and industry participant.
Section 2(1) of the principal Act is amended by inserting, in their appropriate alphabetical order, the following deﬁnitions: “Commission means the Electricity Commission continued under subpart 1 of Part 15 “Commission’s board or board, for the purposes of Part 15 and Schedule 2A, has the meaning set out in section 172Q “electricity governance regulations means regulations made under section 172D “industry participant means— an electricity retailer: “(a) an electricity distributor: “(b) an electricity generator: “(c) a line owner: “(d) a person who uses electricity that is conveyed to the person “(e) directly from the national grid: 4 2004 No 80 Electricity Amendment Act 2004 s 5 “(f) “(g) “(h) “(i) a person who buys electricity on the wholesale market: a service provider appointed under any electricity governance regulations: an electricity metering equipment owner: a data administrator that provides data administration services to the electricity industry,— but does not include the Commission (even to the extent that the Commission may be acting as a service provider after an appoint­ ment under electricity governance regulations) “lines means works that are used or intended to be used for the con­ veyance of electricity “publicise, in relation to a document, means— “(a) to make the document available to the public, at no cost, on a website maintained by or on behalf of the Commission, at all reasonable times; and to give notice of the document in the Gazette “(b) “reserve energy means energy that is secured
 by contract (includ­ ing by contracting for demand­side savings) by, or on behalf of, the Commission for the purpose of ensuring security of supply “Rulings Panel means the Rulings Panel established under electri­ city governance regulations” 5 New heading and section 158G inserted The principal Act is amended by inserting, after section 158F, the following heading and section: “Complaints resolution system “158G Complaints resolution system “(1) Every electricity distributor and every electricity retailer must participate in a complaints resolution system that is approved by the Commission for the purpose of addressing complaints by any person (including potential consumers and owners and occupiers of land) relating to electricity retailers and electricity distributors.
“(2) This section applies provided the Commission has approved 1 or more complaints resolution system by notice in the Gazette.” 5 s 6 6 Electricity Amendment Act 2004 2004 No 80 New section 172A substituted The principal Act is amended by repealing section 172A, and substituting the following section: “172A Outline of subpart “(1) In this subpart, the principal regulation­making powers are as follows: Type of regulations How they can be made Can be made at any time, whether or not the Electricity Commission has made a recommendation 1 Regulations on a low ﬁxed charge tariff option or options for domestic consumers under section 172B 2 Regulations on a code on access for beneﬁciaries of customer and community trusts under section 172C 3 First regulations on reserve energy under section 172CA 4 First regulations on distributed generation under section 172D(1)(10) All other regulations, for example, on wholesale, generation, transmission, and retail issues Can be made only for transitional purposes or to implement the effect of a recommendation by the Electricity Commission.
“(2) This section is intended only as a guide to the general scheme and effect of the principal regulation­making powers in this Part.” 7 (1) Low ﬁxed charge tariff option for domestic consumers Section 172B(2) of the principal Act is amended by adding the following deﬁnition: “Low­use consumer means a domestic consumer who purchases less than 8000 kWh per year in respect of any domestic premises”.
(2) Section 172B(3)(a) is amended by omitting the words “or pro­ portion calculated by reference to the total charge of the aver­ age or median domestic consumer”.
Section 172B(3) of the principal Act is amended by repealing paragraph (b), and substituting the following paragraph: regulating the variable (cents per kilowatt hour) charges in those required low ﬁxed charge tariff options to ensure that low­use consumers would pay a lower total charge on that tar­ (3) “(b) 6 2004 No 80 Electricity Amendment Act 2004 s 8 iff option than on any similar alternative tariff option available from that electricity provider:”.
Section 172B of the principal Act is amended by inserting, after subsection (3), the following subsections: (4) “(3A) No electricity provider that is a customer trust or a community trust may pay a low­use consumer who is on the required low ﬁxed charge tariff option a different rebate only because the consumer is on that tariff option.
(5) (6) “(3B) Each trustee of an electricity provider that contravenes sub­ section (3A) commits an offence, and is liable on summary conviction to a ﬁne not exceeding $20,000.” Section 172B is amended by repealing subsection (6).

Section 172B(7) of the principal Act is amended by adding the following paragraph: regulating the charging, offering, supply, and availability of delivered electricity by other electricity providers.” Section 172B(8) is amended by repealing paragraph (b).
“(d) (7) 8 New heading and section 172CA inserted The principal Act is amended by inserting, after section 172C, the following heading and section: “Regulations—Reserve energy “172CA Reserve energy “(1) The Governor­General may, by Order in Council made on the recommendation of the Minister, make regulations in respect of the securing and use of reserve energy, including— “(a) types of reserve energy to be secured and procedures to be followed in securing reserve energy; and conditions of securing and using reserve energy; and circumstances in which, and terms (including volume and price) on which, reserve energy must or may be offered on the wholesale market.
“(b) “(c) “(2) The Minister may make a recommendation under this section in relation to the ﬁrst Order in Council made under this section without the Commission having made a recommendation on the matter.
“(3) Section 172E otherwise applies to each Order in Council made under this section as if regulations under this section were elec­ 7 s 9 9 Electricity Amendment Act 2004 2004 No 80 tricity governance regulations and with all necessary modiﬁ­ cations.” New sections 172D to 172F substituted The principal Act is amended by repealing sections 172D to 172G, and substituting the following sections: “172D Electricity governance regulations “(1) The Governor­General may, by Order in Council made on the recommendation of the Minister in accordance with section 172E, make regulations for all or any of the following pur­ poses: “Wholesale market “(1) providing for the establishment and operation of com­ including petitive wholesale markets for electricity, for— “(a) discovery of prices and determining quantities of electricity for market transactions: clearing, settling, and reconciling market trans­ actions: scheduling and dispatching electricity: “(b) “(c) “(d) disclosure of market information: “(e) disclosure of information on hedge and contract volumes and prices: the promotion of hedge (including futures) mar­ kets: “(f) “(g) minimum prudential standards for market par­ ticipation: “(h) minimum standards of market conduct: “Generation “(2) providing for generation of electricity and management of supply and price risks in a competitive market, in­ cluding for— “(a) electricity generators to hold or provide for re­ serve fuels (including water): electricity generators to offer by tender a min­ imum volume of
 contracts that enable the price risks associated with the spot market to be man­ aged, including for the terms and conditions of “(b) 8 2004 No 80 Electricity Amendment Act 2004 s 9 those contracts (excluding prices and reserve prices): electricity generators to post buy and sell prices for hedge (including futures) contracts: “(c) “(d) disclosure of information on hydro lake levels and inﬂows, thermal fuel stockpiles, supply con­ tracts for thermal fuels (excluding price), cap­ acity to generate, and proposed
 outages: disclosure of offers into the spot market by elec­ tricity generators: disclosure of information on spill from hydro dams: “(e) “(f) “(3) “(4) “Transmission setting standards and making provision for common quality and minimum real­time security on the national grid, and requiring industry participants to comply with those standards: setting quality and security standards for the transmis­ sion system or parts of the transmission system, or for the use of that system or part, and requiring industry participants to comply with those standards: “(6) “(5) prescribing reasonable terms and conditions on which Transpower must enable distribution lines, and electri­ city generators and users of electricity, to be connected to the national grid, and that must be complied with in connecting to the national grid: regulating the way in which expansions, replacements, or upgrades of the national grid or parts of the national grid must be evaluated, carried out, and funded, includ­ ing specifying— “(a) the circumstances in which Transpower must generally carry out expansions, replacements, or upgrades: “(b) particular expansions, replacements, or upgrades “(c) that Transpower must carry out: the methodology on which costs for expansions, replacements, or upgrades must be allocated among industry participants, or the actual al­ 9 s 9 Electricity Amendment Act 2004 2004 No 80 location of those costs, and providing for their payment by industry participants: “(d) obligations for Transpower to report in relation to forecasts of medium­term system adequacy to assist in identifying opportunities for the use of alternatives to expansions, replacements, or up­ grades: “(7) requiring the use by Transpower of a speciﬁed meth­ odology or component of a methodology for allocating Transpower’s revenue requirement to individual electri­ city generators, electricity retailers, electricity distribu­ tors, line owners, customers, or consumers, or classes of any of those persons,
 including— “(a) deﬁning the charges for any of those persons or classes of any of those persons: imposing quality standards generally or in re­ spect of the supply of transmission services to any of those persons or classes of any of those persons: requiring a speciﬁed person or class of persons receiving (either directly or indirectly) goods or services from Transpower to pay a speciﬁed amount or proportion of the total price, or the total price, for those goods or services: authorising a way or ways in which Trans­power may apply the methodology: “(b) “(c) “(d) “(8) providing for ﬁnancial instruments for managing risks relating to transmission losses and constraints: “Distribution and retailing “(9) providing for a price methodology or methodologies for recovery of the revenue requirements of electricity dis­ tributors: “(10) providing for terms and conditions on which line owners and electricity distributors must enable electri­ city generators to be connected to distribution lines: “(11) providing for requirements on buyers of electricity on the wholesale market to do either or both of the follow­ ing: 10 2004 No 80 Electricity Amendment Act 2004 s 9 “(a) maintain minimum levels of hedge and contract cover with electricity generators: “(b) maintain minimum levels of demand­side man­ agement programmes and interruptible load: “(12) providing for establishing and operating markets for ex­ change of demand­side savings: “(13) providing for the use of ripple control of hot water heat­ ing for security of supply or load management purposes: “(14) providing for the management and co­ordination of out­ ages for security of supply purposes: “(15) providing for terms and conditions for the use of lines and related services by electricity retailers: “(16) providing for the reconciliation of, and payment for, losses of electricity from distribution lines: “(17) providing for the disclosure of information by electri­ city retailers and electricity distributors on tariffs
 and other charges: “(18) providing for arrangements to enable consumers to switch electricity retailers: “(19) providing for arrangements for consumers in the event of insolvency of electricity retailers: “(20) providing for terms and conditions for access to electri­ city meters by electricity retailers: “(21) providing for the introduction of time­of­use meters: “(22) providing for terms and conditions on which electricity retailers must offer prepayment meters to domestic con­ sumers: “(23) providing for terms and conditions (including meter­ ing arrangements) for purchase by electricity retailers of surplus electricity generated by generating units that are owned or operated by a consumer and that have an elec­ tricity generating capacity of less than 40,000 kWh in any ﬁnancial year, subject to the electricity retailer not incurring ongoing ﬁnancial losses as a result of those terms and conditions: “(24) providing for the provision of information on customer accounts: 11 s 9 Electricity Amendment Act 2004 2004 No 80 “(25) providing for minimum terms and conditions in con­ tracts between domestic consumers and electricity re­ tailers or electricity distributors: “(26) providing for the use of bonds by electricity retailers and electricity distributors: “(27) providing for the establishment of, and participation by electricity distributors and electricity retailers in, a com­ plaints resolution system (which may include codes of practice) for the purpose of addressing complaints by any person (including potential consumers and owners and occupiers of land) relating to electricity retailers and electricity distributors, and setting out minimum re­ quirements in relation to that system, including— “(a) provision for compensation up to a maximum of $20,000 to be awarded, and other actions to be taken, by the complaints resolution agency in re­ lation to those complaints: “(b) provision for rights of review, or rights of appeal on a question of law only, in
 relation to decisions relating to those complaints: “Dispute resolution procedures “(28) providing procedures for resolving disputes between in­ dustry participants: “(29) providing for the operation and facilitation of those dis­ pute resolution procedures by a person, and the powers and procedures of that person: “Processes “(30) providing for processes for settling particular issues within the electricity industry that may result in recom­ mendations for electricity governance regulations or rules, and requiring compliance by industry participants and the Commission with those processes, including compliance with requirements to produce documents as part of those processes: “Enforcement of electricity governance regulations “(31) providing for compliance with electricity governance regulations and rules to be monitored and enforced by 12 2004 No 80 Electricity Amendment Act 2004 s 9 “(2) the Commission or any other person or court, and the powers and procedures of that person or court.
In subsection (1)(2), electricity generator means a person who owns or operates assets that, whether taken individually or as a whole, have a rated electricity generating capacity equal to, or greater than, 10 MW.

“(3) The Commission and the Minister must ensure, before making a recommendation for any regulations under subsection (1)(2), that those regulations do not provide for undue discrimination between electricity generators.
In this section, unless the context otherwise requires, terms and conditions includes both contractual matters and other types of arrangements and requirements.
“(4) “172E Conditions and process for recommendations on electricity governance regulations “(1) The Minister may recommend electricity governance regula­ tions under section 172D (other than the ﬁrst regulations made under section 172D(1)(10)) only if the recommendation— “(a) implements the effect of a recommendation of the Com­ mission; and “(b) does not differ from that recommendation in any mater­ ial way (for example, other than in matters of drafting style or minor detail).
“(2) The following applies to recommendations by the Commis­ sion concerning those regulations: “(a) “(b) before making a recommendation, sections 172X to 172Z apply; and the Commission must— “(i) “(ii) undertake an assessment under section 172F; and consult with persons that the Commission thinks are representative of the interests of persons likely to be substantially affected by the pro­ posed regulations; and “(iii) give those persons the opportunity to make sub­ missions; and “(c) “(iv) consider those submissions; and no later than 10 working days after making a recom­ mendation, the Commission must publicise the recom­ 13 s 9 Electricity Amendment Act 2004 2004 No 80 “(d) mendation and the assessment completed under section 172F; and section 57MA(l) of the Commerce Act 1986 (which re­ quires the Commission to advise the Commerce Com­ mission of any recommendation that is likely to affect certain of the powers of the Commerce Commission under that Act) applies.
“(3) Subsection (2)(b) and section 172F (which relate to consult­ ation and assessments) do not apply if the Commission con­ siders that it is necessary or desirable in the public interest that the proposed regulations be made urgently, and, in this case, the recommendation must state that it is made in reliance on this subsection and then, within 6 months of those regulations being made,— “(a) the Commission must— “(i) comply with subsection (2)(b) and section 172F; and “(b) “(ii) make a recommendation to the Minister on whether or not the regulations should be re­ voked, replaced, or amended; and “(iii) no later than 10 working days after making the recommendation, publicise the recommendation and the assessment completed under section 172F; and after receiving that recommendation, the Minister must publish a notice in the Gazette stating whether or not he or she decides to recommend the revocation, replace­ ment, or amendment of the regulations and explaining the reasons for that decision, or stating where copies of that explanation may be obtained,— and then within a further 6 months, the Minister must make that recommendation.
“(4) A regulation that is found by a court to be invalid solely be­ cause of a contravention of subsection (2)(b) or subsection (5) may not be declared to be invalid with effect earlier than 6 months after the date of the declaration.

“(5) The Minister must, before making a recommendation concern­ ing regulations under section 172D(1)(18) to (27), consult with the Minister of Consumer Affairs.
14 2004 No 80 Electricity Amendment Act 2004 s 10 “172F Assessment of proposed electricity governance regulations “(1) Before making a recommendation to the Minister on an elec­ tricity governance regulation, the Commission must— “(a) “(b) “(c) seek to identify all reasonably practicable options for achieving the objective of the regulation; and assess those options by considering— “(i) “(ii) the beneﬁts and costs of each option; and the extent to which the objective would be pro­ moted or achieved by each option; and “(iii) any other matters that the Commission considers relevant; and ensure that the objective of the regulation is unlikely to be satisfactorily achieved by any reasonably practic­ able means other than the making of the regulation (for example, by education, information, or voluntary com­ pliance); and “(d) prepare a statement of the proposal for the purpose of consultation under section 172E(2)(b)(ii).
“(2) The statement of the proposal referred to in subsection (1)(d) must contain— “(a) “(b) “(c) a detailed statement of the proposal; and a statement of the reasons for the proposal; and an assessment of the reasonably practicable options, in­ cluding the proposal, identiﬁed under subsection (1); and “(d) other information that the Commission considers rele­ vant.
“(3) The Commission is not required to comply with subsection (1) if it is satisﬁed that the effect of the recommendation is minor and will not adversely affect the interests of any person in a substantial way.” 10 (1) Amendments consequential on merger of sections 172D to 172G by section 9 Section 172H(3) of the principal Act is amended by omitting the words “section 172E or section 172G”, and substituting the words “section 172D(3), section 172E, or section 172F”.
15 s 11 Electricity Amendment Act 2004 2004 No 80 (2) Section 172H of the principal Act is amended by repealing subsection (7), and substituting the following subsection: “(7) A rule that is found by a court to be invalid solely because of a contravention of subsection (2) may not be declared to be invalid with effect earlier than 6 months after the date of the declaration.” Sections 172J and 172K of the principal Act are amended by omitting the words “sections 172B to 172F” where they ap­ pear, and substituting in each case the words “sections 172B to 172D”.
(3) 11 Supplementary empowering provision for regulations and rules Section 172J(1) of the principal Act is amended by inserting, after paragraph (a), the following paragraph: “(aa) provide for systems, processes, and procedures (including dis­ pute resolution procedures), and the keeping, supply, and dis­ closure of information, in relation to any of the matters speci­ ﬁed in sections 172B to 172D:”.
12 (1) New sections 172KA to 172KQ and headings inserted The principal Act is amended by inserting, after section 172K, the following heading and sections: “Provisions that apply if electricity governance regulations or rules are in force “172KA Transmission agreements “(1) The Commission or the Rulings Panel, or electricity govern­ ance regulations or rules, may direct Transpower, and 1 or more industry participants, to enter into 1 or more transmis­ sion agreements for connection to, use of, and (where relevant) investment in, the national grid.
“(2) The terms of those transmission agreements may be set by the Commission or the Rulings Panel or prescribed in those regulations or rules.

“(3) Those transmission agreements are binding on both parties and are enforceable as if they were contracts between the parties that were freely and voluntarily entered into.
16 2004 No 80 Electricity Amendment Act 2004 s 12 “(4) If the parties do not comply with the direction, the terms set by the Commission or the Rulings Panel, or prescribed in those regulations or rules, are also binding on both parties and en­ forceable as if they were such a contract.

“(5) The terms may be amended or replaced, but only by mutual consent of the parties.
“(6) The consultation, dispute resolution, and other procedural pro­ visions that apply to mandatory or default transmission agree­ ments are contained in electricity governance regulations or rules.
“172KB Party must co­operate with investigations Every industry participant must co­operate fully with any in­ vestigation carried out, for the purposes of monitoring or en­ forcing any electricity governance regulations or rules, by the Commission, or by an investigator appointed under those regu­ lations,— “(a) by providing, within any reasonable time speciﬁed by the Commission or the investigator, all information, papers, recordings, and documents concerning the matter that are in the possession, or under the control, of the industry participant and that are requested for the purpose of the investigation; and “(c) “(b) by permitting its ofﬁcers or other employees to be in­ terviewed (which interview may be recorded) and by ensuring as far as possible that they are made available for interview and answer truthfully and fully any ques­ tions put to them; and by giving to the Commission, or any person authorised by the Commission, at all reasonable times, full access to any premises (subject to complying with any safety requirements that apply to visitors to those premises) at which the industry participant carries on business or maintains records; and “(d) by giving all other assistance that may be reasonable and necessary to enable the matter to be fully investi­ gated.
“Compare: SR 2003/374 r 79 17 s 12 Electricity Amendment Act 2004 2004 No 80 “172KC Privileges protected “(1) Section 172KB does not limit any claim for legal professional privilege.

“(2) A person is not excused from answering a question or giving any information or document on the ground that to do so may incriminate or tend to incriminate that person.
“(3) However, a self­incriminating statement or document made or given— “(a) is not admissible as evidence in criminal or civil pro­ ceedings against that person; and “(b) may not be used against the person in any proceedings before the Rulings Panel, except for information pro­ vided under any self­reporting obligation under those regulations.
“Compare: SR 2003/374 r 80 “172KD Limits on investigation powers “(1) The Commission may authorise, in writing, any person or per­ sons to exercise all or any of the powers referred to in section 172KB(b) or (c) in respect of an industry participant.

“(2) An authorised person must, before entering premises under section 172KB(c), give reasonable notice to the owner or oc­ cupier of the premises (at least 4 days before entry) of his or her intention to enter the premises.
“(4) “(3) An authorised person must, on ﬁrst entering any premises under section 172KB(c) and, if requested, at any later time, produce to the person apparently in charge of the premises the authorisation under subsection (1).
If an authorised person enters any premises under section 172KB(c) and is unable, despite reasonable efforts, to ﬁnd any person apparently in charge, the authorised person must, before leaving the premises, leave a written notice stating— “(a) “(b) the authorised person’s identity; and the address of premises where the authorised person may be contacted; and the date and time of entry; and the reasons for entering.
“(c) “(d) 18 2004 No 80 Electricity Amendment Act 2004 s 12 “(5) Section 172KB(c) does not authorise an authorised person to enter a home, except with the consent of an occupier or under the authority of a warrant.

“(6) An authorised person may apply for a warrant by written ap­ plication on oath.
“(7) A District Court Judge, Justice, or Community Magistrate, or a Court Registrar (not being a constable) who is satisﬁed that there are reasonable grounds to believe that it is necessary, for the purpose of ascertaining whether or not an industry partici­ pant has breached, or may breach, the electricity governance regulations or rules, for an authorised person to search any place may, by warrant, authorise that person to search a place speciﬁed in the warrant.
“Compare: SR 2003/374 r 81 “172KE Rulings Panel may make certain orders “(1) The Rulings Panel may, after considering any complaint or matter referred to it in respect of an allegation that an indus­ try participant has breached any electricity governance regu­ lations or rules,— “(a) “(b) decide that no action should be taken: issue a private warning or reprimand to an industry par­ ticipant: issue a public warning or reprimand to an industry par­ ticipant: impose additional or more stringent record­keeping or reporting requirements under or in connection with any electricity governance regulation or rule: order an industry participant to pay a civil pecuniary penalty not exceeding $20,000: order an industry participant to pay a sum by way of compensation to any other person: “(c) “(d) “(e) “(f) “(g) order an industry participant that is found not to be com­ plying with any electricity governance regulations or rules to take any action that is necessary to restore it to a position of compliance: “(h) make an order terminating or suspending the rights of an industry participant under any electricity governance regulation or rule: 19 s 12 Electricity Amendment Act 2004 2004 No 80 “(i) make orders regarding the reasonable costs of any in­ “(j) vestigations or proceedings: propose to the Commission that it recommend to the Minister that a change should be made to a regulation or rule.
In making any such decision, the Rulings Panel must take into account its previous decisions in respect of any similar situ­ ations previously dealt with by the Commission or the Rulings Panel.

“Compare: SR 2003/374 r 107 “(2) “172KF Restriction of remedies “(1) The remedies provided for in section 172KE and in the elec­ tricity governance regulations and rules are the only remedies in respect of a breach of those regulations or rules.
“(2) No one can bring an action for breach of statutory duty that arises out of, or relates to, a breach of those regulations or rules by an industry participant.

“(3) This section does not limit the recovery of— “(a) a debt owing under any electricity governance regula­ tions or rules; or “(b) damages in tort other than breach of statutory duty, for breach of contract, or for any other wrong, that arises from any act or omission that is also a breach of those regulations or rules.
“Compare: SR 2003/374 r 6 “172KG Limit on tort claims against service providers “(1) No industry participant may bring an action in tort against a service provider that arises out of, or relates to, any act, matter, or thing done, or required or omitted to be done, by the service provider in its role as service provider, provided that the act or omission is not a fraudulent act or omission by the service provider.
“(2) Service provider means a service provider appointed under the electricity governance regulations.

20 2004 No 80 Electricity Amendment Act 2004 s 12 “Appeals “172KH Appeals on ground of lack of jurisdiction An industry participant affected by a decision of the Rulings Panel may appeal that decision to the High Court on the ground of lack of jurisdiction.

“Compare: SR 2003/374 r 184 “172KI Judicial review not precluded Nothing in this Act limits access to the courts in an action for judicial review.
“Compare: SR 2003/374 r 185 “172KJ Appeals on question of law in relation to decisions by Commission or Rulings Panel “(1) There is a right of appeal to the High Court on a question of law only against a decision of the Commission or the Rulings Panel under any electricity governance regulations or rules.

“(2) The appeal must be made by giving notice of appeal within 20 working days after the date of the decision appealed against or within any further time that the Court allows.
“Compare: SR 2003/374 r 186 “172KK Right of appeal against suspension or termination orders “(1) An industry participant in respect of which a suspension order or termination order is made may appeal to the High Court against the order.

“(2) The appeal must be made by giving notice of appeal within 20 working days after the date of the order appealed against or within any further time that the Court allows.
“Compare: SR 2003/374 r 187 “172KL Persons entitled to appeal The Commission, and the following industry participants, may exercise a right of appeal under this Part: “(a) an industry participant in whose favour or against whom a decision or order of the Commission or the Rulings Panel is made: 21 s 12 Electricity Amendment Act 2004 2004 No 80 “(b) “(c) an industry participant who was a party to a dispute that was determined by the Commission or the Rulings Panel: any industry participant who joined as a party to the investigation of the matter that is subject to the appeal.
“Compare: SR 2003/374 r 188 “172KM Determination of appeals In its determination of any appeal (other than an appeal to the High Court by way of case stated for the opinion of the Court on a question of law only), the High Court may do any 1 or more of the following things: “(a) conﬁrm, modify, or reverse the decision or any part of it: exercise any of the powers that could have been exer­ cised by the Commission or the Rulings Panel in rela­ tion to the matter to which the appeal relates.
“(b) “Compare: 1986 No 5 s 93; SR 2003/374 r 189 “172KN High Court may refer appeals back to Commission or Rulings Panel for reconsideration “(1) The High Court may, in any case, instead of determining any appeal, direct the Commission or the Rulings Panel to recon­ sider, either generally or in respect of any speciﬁed matters, the whole or any speciﬁed part of the matter to which the ap­ peal relates.
In giving any direction under this section, the Court must— “(a) advise the Commission or the Rulings Panel, as the case may be, of its reasons for doing so; and “(2) “(b) give to the Commission or the Rulings Panel, as the case may be, any directions that it thinks just concerning the reconsideration or otherwise of the whole or any part of the matter that is referred back.
In reconsidering the matter, the Commission or the Rulings Panel, as the case may be, must have regard to the Court’s reasons for giving the direction, and the Court’s directions.
“Compare: 1986 No 5 s 94; SR 2003/374 r 190 “(3) 22 2004 No 80 Electricity Amendment Act 2004 s 12 “172KO Provisions pending determination of appeal If an appeal is brought against any decision of the Commission or the Rulings Panel, the decision to which the appeal relates remains in full force pending the determination of the appeal, unless the High Court orders to the contrary.
“Compare: 1986 No 5 s 9.5; SR 2003/374 r 191 “172KP 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 proceedings under this Part be held in private.

“(2) The High Court may make an order prohibiting the publica­ tion of any report or description of proceedings or any part of proceedings (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; SR 2003/374 r 192 “172KQ Appeal to Court of Appeal in certain cases “(1) Any party to any appeal before the High Court against any decision of the Commission or the Rulings Panel, as the case may be, who is dissatisﬁed with any 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 66 of the Judicature Act 1908 applies to the appeal.
“(3) In determining whether to grant leave to appeal under this sec­ tion, 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 in­ “(b) “(c) “(d) volved: the importance of the issues to the parties: the amount of money in issue: 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; SR 2003/374 r 193”.

23 s 13 (2) 13 (1) (2) 14 (1) Electricity Amendment Act 2004 2004 No 80 The Electricity Governance Regulations 2003 (SR 2003/374) are consequentially amended by revoking regulations 6, 79, 80, 81, 107, and Part 9.
Purpose Section 172L(a) of the principal Act is amended by omitting the words “enable the establishment of the Electricity Gov­ ernance Board”, and substituting the words “provide for the Electricity Commission”.

Section 172L(a)(i) of the principal Act is amended by omitting the words “promote its principal objective”, and substituting the words “give effect to its principal objectives and speciﬁc outcomes”.
New section 172M substituted The principal Act is amended by repealing section 172M, and substituting the following section: “172M Continuation of Commission “(1) There continues to be an organisation to be called the Electri­ city Commission.

“(2) The Commission is a Crown entity for the purposes of the Public Finance Act 1989.
(2) “(3) The Commission is the same body as the Electricity Govern­ ance Board established under section 172M as in force imme­ diately before its substitution by section 14 of the Electricity Amendment Act 2004.” The principal Act is amended by omitting every reference to “EGB”, and substituting in each case a reference to “the Com­ mission”.

Section 172I(4) of the principal Act is amended by omitting the words “, if it is established,”.

Sections 3 to 5 of the Electricity Amendment Act 2001 are repealed.
(4) (3) New section 172N substituted The principal Act is amended by repealing section 172N, and substituting the following section: 15 24 2004 No 80 Electricity Amendment Act 2004 s 16 “172N Principal objectives and speciﬁc outcomes “(1) The principal objectives of the Commission in relation to elec­ tricity are— “(a) “(b) to ensure that electricity is produced and delivered to all classes of consumers in an efﬁcient, fair, reliable, and environmentally sustainable manner; and to promote and facilitate the efﬁcient use of electricity.
“(2) Consistent with those principal objectives, the Commission must seek to achieve, in relation to electricity, the following speciﬁc outcomes: “(a) “(b) “(c) “(d) “(e) “(f) “(g) energy and other resources are used efﬁciently: risks (including price risks) relating to security of sup­ ply are properly and efﬁciently managed: barriers to competition in the electricity industry are minimised for the long­term beneﬁt of end­users: incentives for investment in generation, transmission, lines, energy efﬁciency, and demand­side management are maintained or enhanced and do not discriminate be­ tween public and private investment: the full costs of producing and transporting each addi­ tional unit of electricity are signalled: delivered electricity costs and prices are subject to sus­ tained downward pressure: the electricity sector contributes to achieving the Gov­ ernment’s climate change objectives by minimising hy­ dro spill, efﬁciently managing transmission and distri­ bution losses and constraints, promoting demand­side management and energy efﬁciency, and removing bar­ riers to investment in new generation technologies, re­ newables, and distributed generation.” 16 New section 1720 substituted The principal Act is amended by repealing section 172O, and substituting the following section: “172O Functions of Commission “(1) The functions of the Commission are to— “(a) formulate and make recommendations concerning elec­ tricity governance regulations and rules in accordance with this Act: 25 s 17 Electricity
 Amendment Act 2004 2004 No 80 “(b) “(c) administer, monitor compliance with, investigate, en­ force, and apply penalties or other remedies for contra­ ventions of electricity governance regulations and rules: establish, operate, and facilitate the operation of mar­ kets for industry participants or consumers, or both: “(e) “(d) use reasonable endeavours to ensure security of supply (including contracting for reserve energy), without as­ suming any reduction in demand from emergency con­ servation campaigns, while minimising distortions to the normal operation of the market: undertake forecasting and modelling of future electri­ city supply and demand: promote and facilitate the efﬁcient use and conservation of electricity (including funding programmes that pro­ vide incentives for cost­effective energy efﬁciency and conservation): “(f) “(g) manage emergency conservation campaigns to avoid “(h) “(i) material risk of supply shortages: approve 1 or more complaints resolution system for the purpose of section 158G: develop best practice methodologies and other stan­ dards and model agreements for use by industry participants: give effect to GPS objectives and outcomes: “(j) “(k) provide advice to the Minister on matters concerning the electricity industry.
“(2) The Commission’s functions may be carried out by contracting with other parties, entering into a joint venture or contractual arrangement in respect of reserve energy and other things, or other means.” Section 172W repealed The principal Act is amended by repealing section 172W.
New section 172X substituted The principal Act is amended by repealing section 172X, and substituting the following section: 17 18 26 2004 No 80 Electricity Amendment Act 2004 s 21 “172X Objectives of recommendations In formulating recommendations for electricity governance regulations and rules, the Commission must give effect to its principal objectives and speciﬁc outcomes and its GPS objectives and outcomes.” 19 20 Section 172Y repealed The principal Act is amended by repealing section 172Y.
New section 172Z substituted The principal Act is amended by repealing section 172Z, and substituting the following section: “172Z Minister must have regard to recommendations “(1) The Minister must have regard to a recommendation by the Commission in exercising any of his or her functions or powers in relation to electricity governance regulations or rules.

“(2) Section 172E applies to the Minister’s power to recommend “(3) electricity governance regulations.
In addition, the Minister may, if he or she considers that the principal objectives and speciﬁc outcomes of the Commission will be better given effect to by doing so, within 90 working days of receiving the recommendation, do either or both of the following: “(a) “(b) decide not to act on that recommendation: refer the Commission’s recommendation back to the Commission for further consideration by the Commis­ sion.
“(4) The Minister must publish a notice in the Gazette, within 10 working days of deciding what to do with a Commission rec­ ommendation, explaining the reasons for the decision or where copies of that explanation may be obtained.” 21 Sections 172ZA and 172ZB repealed The principal Act is amended by repealing sections 172ZA and 172ZB and the heading above section 172ZA.
27 s 22 22 (1) Electricity Amendment Act 2004 2004 No 80 Levy of industry participants Section 172ZC of the principal Act is amended by repealing subsection (1), and substituting the following subsections: “(1) Every industry participant (or prescribed class of industry par­ ticipant) must pay to the Commission on behalf of the Crown a levy prescribed by regulations under section 172ZE.
“(1A) The levy must be prescribed on the basis that the following costs should be met fully out of the levy: “(a) the estimated costs of performing the Commission’s functions, powers, and duties under this Act and any other Act, including the Commission’s costs in relation to endeavouring to ensure security of supply (which in­ cludes any costs incurred by the Commission as a re­ sult of any contract entered into under section 27 of the Electricity Amendment Act 2004 in respect of reserve energy); and the costs incurred by Transpower to fund the MACQS reform process (including establishment of MACQS, grid security committee costs, and related rule develop­ ment) together with interest at the rate of 8% per annum calculated and capitalised annually; and the costs of collecting the levy money.
“(b) “(c) (2) “(1B) 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.” Section 172ZC(2) of the principal Act is amended by omitting the words “under that section”.
Section 172ZC(2) of the principal Act is amended by repealing paragraph (a), and substituting the following paragraph: specify the amount of levies or method of calculating or ascer­ taining the amount of levies:”.
Section 172ZC of the principal Act is amended by inserting, after subsection (2), the following subsection: “(a) (4) (3) “(2A) The levy for a ﬁnancial year that starts after the Commission begins to carry out any additional function under this Act or any other Act may cover the costs of performing that addi­ tional function, irrespective of the fact that the regulations may be made and come into effect after that date.” 28 2004 No 80 Electricity Amendment Act 2004 s 24 (5) (6) (7) Section 172ZC(3) of the principal Act is amended by omitting the words “debt due to the Crown”, and substituting the words “debt due to the Commission on behalf of the Crown”.
Section 172ZC of the principal Act is amended by repealing subsection (4).
Section 172ZC is amended by adding the following subsec­ tion: “(5) The Commission must, as soon as practicable after receiving any levy payment, pay it into the Crown Bank Account and separately account for each payment.” 23 New section 172ZCA inserted The principal Act is amended by inserting, after section 172ZC, the following section: “172ZCA Commission must consult about request for appropriation “(1) The Commission must, before submitting a request to the Min­ ister seeking an appropriation of public money for the follow­ ing year, or any change to an appropriation for the current year, consult with those industry participants who are liable to pay a levy under section 172ZC about that request.
“(2) The Commission must, at the time when the request is submit­ ted, report to the Minister on the outcome of that consultation.” 24 (1) Amendments to Ombudsmen Act 1975 and Public Finance Act 1989 The Ombudsmen Act 1975 is amended by omitting from Part 2 of Schedule 1 the item relating to the Electricity Governance Board, and substituting, in its appropriate alphabetical order, the following item: “Electricity Commission and every subsidiary of the Electricity Commission.” (2) The Public Finance Act 1989 is amended by omitting from Schedules 4, 5, and 6 the item relating to the Electricity Gov­ ernance Board, and substituting, in each case in its appropriate alphabetical order, the following item: “Electricity Commission.” 29 s 25 (3) 25 Electricity Amendment Act 2004 2004 No 80 The principal Act is amended by repealing sections 172ZG and 172ZH.
New subparts 2 and 3 substituted The principal Act is amended by repealing subpart 2 of Part 15, and substituting the following subparts: “Subpart 2—Accountability of Electricity Commission “172ZJ Interpretation In this subpart, unless the context otherwise requires,— “GPS objectives and outcome s means the objectives and outcomes that apply to the Commission under section 172ZK “performance standards means the performance targets and measures agreed for the Commission under section 172ZL “report date means the close of 30 June in each calendar year “reporting period means— “(a) the period beginning on 15 September 2003 and ending on 30 June 2004; and each subsequent 12­month period ending on 30 June.
“(b) “172ZK Setting of GPS objectives and outcomes “(1) The Minister must set objectives and outcomes that the Gov­ ernment wants the Commission to give effect to in relation to the governance of the electricity industry, and against which the Commission must report and be examined in accordance with this subpart.
“(2) The Minister must set those objectives and outcomes by— “(a) giving the Commission a statement of government pol­ icy containing those objectives and outcomes; or “(b) giving the Commission an amendment to, or replace­ ment of, that statement.

“(3) Each statement (or amendment to, or replacement of, a state­ ment) under subsection (2) must be published in the Gazette and presented to the House of Representatives by the Minister as soon as practicable after it is given to the Commission.
30 2004 No 80 Electricity Amendment Act 2004 s 25 “(4) GPS objectives and outcomes must be consistent with the pur­ pose of this Part and the functions, principal objectives, and speciﬁc outcomes of the Commission.

“(5) GPS objectives and outcomes must not require the Commis­ sion, in respect of a particular person, to make a particular de­ cision, or to do or refrain from doing a particular act, or to bring about a particular result (other than in relation to Trans­ power).
“(6) The Minister must consult with the Commission before giving a statement under this section.

“172ZL Agreement of annual performance standards “(1) The Commission must, within 3 months after the commence­ ment of each reporting period beginning on or after 1 July 2004, agree performance standards with the Minister for that reporting period.
“(2) The performance standards— “(a) must include the performance targets and other meas­ ures by which the performance of the Commission may be judged; and “(b) must be matters against which the Commission’s actual performance may be reported and audited; and “(c) must relate to all of the GPS objectives and outcomes.
“(3) Before agreeing the performance standards, the Minister must consult with the Auditor­General on whether the proposed per­ formance standards meet the requirements in subsection (2)(b) and (c).
“172ZM Annual performance report to Minister “(1) The Commission must, within 3 months after each of the Com­ mission’s report dates on and after 30 June 2004, deliver to the Minister a report on its operations during the last reporting period, and submit that annual report to the Auditor­General for an assurance audit under section 172ZO.
“(2) The annual report— “(a) must contain the information that is necessary to enable an informed assessment to be made of the performance 31 s 25 Electricity Amendment Act 2004 2004 No 80 of the Commission against the GPS objectives and out­ comes and against the performance standards; but “(b) need not contain information on the Commission’s ﬁ­ nancial performance.
“172ZN Minister must present annual performance report to House of Representatives The Minister must present copies of every annual report pro­ vided to him or her under section 172ZM to the House of Rep­ resentatives as soon as practicable after receiving that report.
“172ZO Assurance audit by Auditor­General “(1) The Auditor­General— “(a) must examine the annual report provided to the Auditor­ General under section 172ZM and report to the Minister and the House of Representatives as soon as practicable after receiving the annual report: “(b) may, at any time, examine the information to be con­ tained in the annual report and the systems of the Com­ mission, and report on that examination to the Minister and the House of Representatives.
“(2) The Auditor­General’s report under subsection (1) must pro­ vide assurance on— “(a) the appropriateness, adequacy, and accuracy of the in­ formation contained, or to be contained, in the annual report; and “(b) whether the annual report enables, or is likely to enable, an informed assessment to be made of the matters stated in section 172ZM(2)(a).
“172ZP Report by Parliamentary Commissioner for Environment “(1) The Parliamentary Commissioner for the Environment must examine, in accordance with subsection (2), the extent to which the Commission is meeting the GPS objectives and outcomes concerning the environment.
“(2) The Parliamentary Commissioner for the Environment— “(a) must, as soon as practicable after each report date of the Commission, carry out that examination in respect 32 2004 No 80 Electricity Amendment Act 2004 s 26 “(b) of the last reporting period and report to the House of Representatives on the results of the examination: in addition, may carry out the examination under sub­ section (1) and report to the House of Representatives on the results of the examination at any other time.
“172ZQ Functions under this subpart “(1) The Parliamentary Commissioner for the Environment may exercise all of the Commissioner’s powers under the Envir­ onment Act 1986 in relation to the functions in this subpart, and that Act applies to those functions as if they were func­ tions conferred under that Act.
“(2) The functions conferred on the Auditor­General and the Par­ liamentary Commissioner for the Environment by this subpart are additional to, and do not limit, the Auditor­General’s or the Commissioner’s functions, powers, and duties under the Pub­ lic Audit Act 2001 or the Environment Act 1986 (as the case may be).
“Subpart 3—Miscellaneous provisions “172ZR Speciﬁc authorisation for purposes of restrictive trade practices rules The following are speciﬁcally authorised for the purpose of section 43 of the Commerce Act 1986: “(a) anything done or omitted to be done by the Commission for the purpose of carrying out its functions, powers, and duties in relation to reserve energy under this Act; and anything done, or omitted to be done, by the Com­ mission, the Rulings Panel, or an industry participant, that is reasonably necessary to comply with, enforce, or otherwise administer any electricity governance regula­ tions or rules”.
“(b) 26 (1) Schedule 2A amended Clause 23(2) of Schedule 2A of the principal Act is amended by omitting the expression “7”, and substituting the expression “2”.
33 Part 27 s 27 Electricity Amendment Act 2004 2004 No 80 (2) Clause 23 of Schedule 2A of the principal Act is amended by adding the following subclause: “(4) Any irregularity regarding the notice of meeting, including the period for calling a meeting, is waived if all members attend the meeting without protest as to the irregularity or if all mem­ bers agree to the waiver.” Transitional provision relating to reserve energy 27 Minister may direct Commission to enter contract relating to Whirinaki power station The Minister may, no later than 3 months after this section comes into force, direct the Commission to enter into a con­ tract providing for the power station located at Whirinaki, and the associated assets, rights, and liabilities, to be available for the purposes of reserve energy.
The direction must specify the terms of the contract.

The contract entered into under the direction is binding on the parties to it, and is enforceable as if it were a contract that was freely and voluntarily entered into.

The contract may be amended or replaced or terminated, but only by mutual consent of the parties.

Provisions relating to direction The direction may not be amended, revoked, or replaced.
Subsections (1) to (3) were repealed, as from 25 January 2005, by section 200 Crown Entities Act 2004 (2004 No 115).
Provisions relating to availability of contract The Commission must— (a) make the contract that is entered into by the Commis­ sion under section 27 available for inspection, during working hours, free of charge at the head ofﬁce of the Commission; and (1) (2) (3) (4) 28 (1) (2) (3) (4) 29 (1) 34 2004 No 80 Electricity Amendment Act 2004 (b) make copies of that contract available for purchase at a reasonable price at the head ofﬁce of the Commission; and (c) make copies of that contract available free of charge, at all reasonable times, on an Internet website maintained by, or on behalf of, the Commission; and give notice in the Gazette stating that— (i) (d) the contract has been entered into and the date on which the contract was entered into; and the contract is available for inspection during working hours free of charge and the place at which it can be inspected; and copies of the contract can be purchased and the place at which they can be purchased; and the contract is available on the Internet, free of charge, and the website address.
(ii) (iii) (iv) (2) This section also applies to any amendment or replacement of the contract.

Miscellaneous 30 Electricity Amendment Act 2001 amended Section 19 of the Electricity Amendment Act 2001 is amended by repealing subsections (5) and (6), and substituting the fol­ lowing subsection: “(5) The transitional period ends on the close of 6 April 2004.” 12 October 2004 13 October 2004 Legislative history Divided from Electricity and Gas Industries Bill (Bill 86—2) as Bill 86—3A Third reading 35