Electricity Industry Reform Act 1998

1: Short Title and commencement
1: This Act may be cited as the Electricity Industry Reform Act 1998.
2: Except as provided in subsections (3) to (5), this Act comes into force on the day after the date on which this Act receives the Royal assent.
3: The following provisions are deemed to have come into force on 21 May 1998:
a: sections 37 to 45
b: section 46
c: Part 3
d: section 68
e: section 69
f: section 71
4: Part 2
5: Section 100 Section 1(5) brought into force 14 May 1999 Electricity Industry Reform Act (Commencement of Section 100) Order 1999
2: Purpose
1: The purpose of this Act is to better ensure—
a: that costs and prices in the electricity industry are subject to sustained downward pressure; and
b: that the benefits of efficient electricity pricing flow through to all classes of consumers; and
c: new investment in generation from renewable energy sources.
1A: The Act does this by—
a: effectively separating electricity lines from generation and retail where those activities are co-located; and
b: promoting effective competition in electricity generation and retail; and
c: limiting barriers to new investment in generation from renewable energy sources.
2: The particular purpose of Parts 1 to 3 5
a: to prohibit certain involvements in electricity lines and electricity generation and retail that may create incentives or opportunities—
i: to inhibit competition in the electricity industry; or
ii: to cross-subsidise generation or retail activities from electricity lines activities; and
b: to restrict relationships between a business that has involvement in electricity lines and a business that has involvement in electricity generation or retail, where those relationships may not otherwise be at arm's-length; and
c: to provide specified exemptions for new investment in generation from renewable energy sources.
3: The particular purpose of Part 6
4:
5: Section 2(1) substituted 14 October 2008 section 4(1) Electricity Industry Reform Amendment Act 2008 Section 2(1A) inserted 14 October 2008 section 4(1) Electricity Industry Reform Amendment Act 2008 Section 2(2) substituted 14 October 2008 section 4(2) Electricity Industry Reform Amendment Act 2008 Section 2(4) repealed 14 October 2008 section 4(3) Electricity Industry Reform Amendment Act 2008 Section 2(5) repealed 14 October 2008 section 4(4) Electricity Industry Reform Amendment Act 2008
1: Separation of lines and supply—Preliminary provisions
Interpretation
3: Interpretation
1: In Parts 1 to 5 agreement arm’s-length rules Schedule 1 assets associate section 12 business business A business B section 6 Commission section 8 connected customer section 2(1)
a: the electricity is conveyed to that consumer on a line in which the person is involved; and
b: the consumer and the line are within the same local network area connected customers selling cap section 17C connected electricity business section 17D connected generation connected generation cap section 17A control right section 9 court director disregarded involvement section 19 electricity business section 7(1)(a) to (c) electricity trust equity return right section 10 exceeds the overlap threshold section 20
a: more than 20% of the persons having non-specific interests in person A are likely to be the same persons as have interests in person B; or
b: the class or classes of persons having non-specific interests in person A are substantially included in a class or classes of persons having interests in person B; or
c: more than 20% of the persons likely to derive an appreciable benefit from non-specific interests in person A are likely to be the same persons as those that are likely to derive an appreciable benefit from equity return rights in person B; or
d: more than 20% of the benefits distributed or distributable as a result of non-specific interests in person A are likely to benefit substantially the same class of persons as are likely to derive an appreciable benefit from equity return rights in person B; or
e: person A has a type of overlap specified from time to time in regulations made under section 87 and overlap threshold being exceeded expectancy
a: an expectancy or a contingent or unvested right to equity returns of the business or person; or
b: a right to equity returns of the business or person which does not confer on the holder a certain or defined share of the equity returns available to all or to any class of persons having equity return rights in the business or person financial year interest involved section 7 line local network section 2(1) local network area manager
a: means a person who, whether alone or jointly with any other person, manages, or directs or supervises the management of, the whole or a substantial part of the business and affairs of the person; and
b: includes, for the avoidance of doubt,—
i: in relation to a trust, a trustee:
ii: in relation to a local authority, a member; but
c: does not include,—
i: in relation to a body corporate, a director of that body corporate:
ii: in relation to an electricity business in which a local authority or any other person has an interest, a member of that local authority or manager of that person only as a result of having that position material influence section 11 maximum demand member Minister nameplate national grid non-specific interests operating ownership separation rules sections 17 to 17C section 20 person qualifying generation section 17C(2) renewable energy source rights sell sell electricity subsidiary sections 5 6
2: Where a section has a statement of purpose, the statement is an indication of the matters that may be considered in ascertaining the meaning of the section, but does not limit the section or any other section.
3: In relation to sections 17 19
a: limitations, exclusions, or exemptions under those sections may be applied cumulatively; and
b: references to an activity being carried out only or solely for a particular purpose or in a particular way, or to a person having an involvement or interest only or solely for a particular reason, must not be read as excluding reliance on any other limitation, exclusion, or exemption in any of those sections. Section 3(1) agency repealed 8 August 2001 section 3(1) Electricity Industry Reform Amendment Act 2001 Section 3(1) arm’s-length rules 14 October 2008 section 5(3) Electricity Industry Reform Amendment Act 2008 Section 3(1) Commission amended 25 January 2005 section 200 Crown Entities Act 2004 Section 3(1) connected customer inserted 14 October 2008 section 5(2) Electricity Industry Reform Amendment Act 2008 Section 3(1) connected customers selling cap inserted 14 October 2008 section 5(2) Electricity Industry Reform Amendment Act 2008 Section 3(1) connected electricity business inserted 14 October 2008 section 5(2) Electricity Industry Reform Amendment Act 2008 Section 3(1) connected generation inserted 14 October 2008 section 5(2) Electricity Industry Reform Amendment Act 2008 Section 3(1) connected generation cap inserted 14 October 2008 section 5(2) Electricity Industry Reform Amendment Act 2008 Section 3(1) core assets repealed 14 October 2008 section 5(1) Electricity Industry Reform Amendment Act 2008 Section 3(1) cross-involvement repealed 14 October 2008 section 5(1) Electricity Industry Reform Amendment Act 2008 Section 3(1) customer co-operative repealed 14 October 2008 section 5(1) Electricity Industry Reform Amendment Act 2008 Section 3(1) distributed generation repealed 14 October 2008 section 5(1) Electricity Industry Reform Amendment Act 2008 Section 3(1) electricity business substituted 14 October 2008 section 5(2) Electricity Industry Reform Amendment Act 2008 Section 3(1) electricity company repealed 14 October 2008 section 5(1) Electricity Industry Reform Amendment Act 2008 Section 3(1) electricity lines business repealed 14 October 2008 section 5(1) Electricity Industry Reform Amendment Act 2008 Section 3(1) electricity supply business repealed 14 October 2008 section 5(1) Electricity Industry Reform Amendment Act 2008 Section 3(1) exempt person repealed 14 October 2008 section 5(1) Electricity Industry Reform Amendment Act 2008 Section 3(1) existing cross-involvement repealed 14 October 2008 section 5(1) Electricity Industry Reform Amendment Act 2008 Section 3(1) existing involvement repealed 14 October 2008 section 5(1) Electricity Industry Reform Amendment Act 2008 Section 3(1) financial year inserted 14 October 2008 section 5(2) Electricity Industry Reform Amendment Act 2008 Section 3(1) line substituted 14 October 2008 section 5(2) Electricity Industry Reform Amendment Act 2008 Section 3(1) local network inserted 14 October 2008 section 5(2) Electricity Industry Reform Amendment Act 2008 Section 3(1) manager substituted 14 October 2008 section 5(2) Electricity Industry Reform Amendment Act 2008 Section 3(1) maximum demand inserted 20 May 2003 section 4(2) Electricity Industry Reform Amendment Act 2004 Section 3(1) Minister inserted 25 January 2005 section 200 Crown Entities Act 2004 Section 3(1) mirror co-operative repealed 14 October 2008 section 5(1) Electricity Industry Reform Amendment Act 2008 Section 3(1) mirror trust repealed 14 October 2008 section 5(1) Electricity Industry Reform Amendment Act 2008 Section 3(1) nameplate substituted 14 October 2008 section 5(2) Electricity Industry Reform Amendment Act 2008 Section 3(1) ownership separation rules substituted 14 October 2008 section 5(2) Electricity Industry Reform Amendment Act 2008 Section 3(1) qualifying generation inserted 14 October 2008 section 5(2) Electricity Industry Reform Amendment Act 2008 Section 3(1) renewable energy source inserted 14 October 2008 section 5(2) Electricity Industry Reform Amendment Act 2008 Section 3(1) sell inserted 14 October 2008 section 5(2) Electricity Industry Reform Amendment Act 2008 Section 3(1) settling trust repealed 14 October 2008 section 5(1) Electricity Industry Reform Amendment Act 2008 Section 3(1) transfer repealed 14 October 2008 section 5(1) Electricity Industry Reform Amendment Act 2008 Section 3(1) unseparated electricity business repealed 14 October 2008 section 5(1) Electricity Industry Reform Amendment Act 2008 Section 3(3) added 8 August 2001 section 3(5) Electricity Industry Reform Amendment Act 2001 Section 3(3) amended 14 October 2008 section 5(4) Electricity Industry Reform Amendment Act 2008
4: Meaning of electricity lines business
Section 4 repealed 14 October 2008 section 6 Electricity Industry Reform Amendment Act 2008
5: Meaning of electricity supply business
Section 5 repealed 14 October 2008 section 6 Electricity Industry Reform Amendment Act 2008
6: Meaning of business A and business B
1: Where section 20 sections 17 to 17G
2: Where the rest of this Act uses the term business A, it refers to a business that is required to be carried out in one company under section 17E
3: Where this Act applies to business A, it applies equally to business B, and vice versa.
4: References to trust A and trust B have corresponding meanings and application. Section 6 substituted 14 October 2008 section 7 Electricity Industry Reform Amendment Act 2008
7: Meaning of involved
1: For the purposes of this Act, a person is involved
a: in a line if the person conveys electricity by the line, or owns or operates, directly or indirectly, the line or any other assets used in connection with the line, either alone or together with its associates and either on its own or another’s behalf:
b: in any generation if the person generates electricity from the generator, or owns or operates, directly or indirectly, the generator or any other assets used in connection with the generator, either alone or together with its associates and either on its own or another’s behalf:
c: in selling electricity to a customer if the person sells to the customer either on its own or another’s behalf:
d: in any of the things referred to in paragraphs (a) to (c) if the person—
i: 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
ii: exceeds the 10% threshold in section 8
iii: has material influence over a business that does any of those things.
2: Involvement Section 7 substituted 14 October 2008 section 7 Electricity Industry Reform Amendment Act 2008
7A: How to measure involvement
1: This section applies for the purposes of calculating the caps and thresholds referred to in the following sections:
a: section 17A
b: section 17C
c: section 17D
2: A person is involved in any connected generation only in proportion to the extent of the person’s interest in the connected generation. Examples
LineCo has a 20% shareholding in a joint venture company that operates a connected 100 MW generating plant. LineCo is therefore involved in 20 MW of generation. Consequently, 20 MW of generation counts towards the cap on connected generation (50 MW in the case of thermal generation and unlimited in the case of renewable generation). LineCo can sell to connected customers all of the total annual nominal MWh capacity of the 20 MW. The selling cap does not change in proportion to the extent of LineCo’s interest in the business selling the electricity. For example, if the business selling the electricity is a joint venture company in which LineCo has only a 30% shareholding, then LineCo’s selling cap is the same as it would have been if LineCo had a 100% shareholding in the selling business. Fred is a director of LineCo. That directorship is his only interest in anything. Fred’s involvement in respect of both generation and selling is the same as LineCo’s. LineCo must corporately separate and operate the generation and retail businesses at arm's-length (because the 20 MW exceeds the 10 MW threshold). However, it does not need to have separate managers because the 20 MW does not exceed the 30 MW threshold for separate managers in the arm's-length rules. Section 7A inserted 14 October 2008 section 7 Electricity Industry Reform Amendment Act 2008
8: Meaning of 10% threshold
A person exceeds the 10% threshold in respect of an electricity 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.
9: Meaning of control rights
1: For the purposes of this Act, a control right
2: A person has a control right under this Act if the person would have a relevant interest, under sections 5 to 5B Markets
a: if voting security
b: if references in those sections Section 9(2) amended 29 February 2008 section 14 Securities Markets Amendment Act 2006 Section 9(2) amended 1 December 2002 section 30 Securities Markets Amendment Act 2002 Section 9(2)(b) amended 29 February 2008 section 14 Securities Markets Amendment Act 2006
10: Meaning of equity return rights
1: For the purposes of this Act, a person has an equity return right
2: Equity returns
a: profits of the business; or
b: distributions from the business; or
c: other equity returns from the business.
3: Other equity returns
a: means a benefit derived, directly or indirectly, from a business which represents, or is calculated by reference to, or is determined by,—
i: a share in or proportion of its capital; or
ii: its surplus or residual economic value (after satisfying prior contractual claims); or
iii: its profitability or other indicator of its success; but
b: does not include (for the avoidance of doubt) a right or entitlement to interest on debt calculated at general market rates prevailing at the time of the loan agreement, or fluctuating in accordance with a formula which applies general market rates prevailing from time to time.
4: In respect of equity return rights for which percentage entitlements are not readily calculable for any reason, the persons that hold or may hold them and the amounts are to be determined in accordance with any method set out in regulations.
5: A person is deemed to have a percentage of the equity return rights held by another person in a business if the first person has, or is one of 2 or more associates who together have, more than 10% of the equity return rights in the second person.
6: The percentage of rights held by a person in another person is calculated as follows: a = b × c where— a is the percentage to be determined b is the percentage of the equity return rights held by the first person in the second person c is the percentage of the equity return rights held by the second person in the business.
11: Meaning of material influence
1: Without limiting the ordinary meaning of the expression material influence
a: a director or manager
b: if the business is carried on by a natural person, that person:
c: a person in accordance with whose directions, instructions, or wishes a person referred to in either of paragraph (a) or paragraph (b), or the business, may be required or is accustomed to act in respect of the carrying on or management of the business:
d: a person that exercises or that is entitled to exercise, or who controls or is entitled to control the exercise of, powers which would ordinarily fall to be exercised by a person referred to in either of paragraph (a) or paragraph (b):
e: a person that can appoint or remove, or control the appointment or removal of, a person referred to in either of paragraph (a) or paragraph (b):
f: a person that has a power to influence a decision of the business which would ordinarily require the holding of control rights which would cause the person to exceed the 10% threshold:
g: a person in circumstances where that person and the business is acting, or proposing to act, jointly or in concert in relation to the business; or
h: a person that, under a trust or agreement (whether or not the person is a party to it), may at any time have any of the powers referred to in paragraph (c) to paragraph (f).
2: Where a person has material influence over an electricity business under this section, and another person has any of the powers or controls referred to in paragraph (c) to paragraph (h) in relation to the first person or the majority of its directors or managers
3: A person is deemed to have material influence over an electricity business if the person is one of 2 or more associates who, together, have material influence over the business.
4: Subsection (3) does not apply to deem a person to have material influence over a business only because that person is, under section 12(1)(b) or (c) arm’s-length rules
5: For the avoidance of doubt, a power to cast one of many votes at an election of trustees or councillors does not, of itself, constitute material influence. Section 11(1)(a) amended 14 October 2008 section 8(1) Electricity Industry Reform Amendment Act 2008 Section 11(2) amended 14 October 2008 section 8(2) Electricity Industry Reform Amendment Act 2008 Section 11(4) amended 14 October 2008 section 5(3) Electricity Industry Reform Amendment Act 2008
12: Meaning of associate
1: For the purposes of this Act, person A is an associate
a: person A is a body corporate, and person B is—
i: a director of that body corporate; or
ii: a related body corporate of that body corporate (within the meaning of section 5B(2) Markets
iii: a director of a related body corporate of that body corporate (within that same meaning); or
b: person A is a spouse, civil union partner, de facto partner,
c:
d: person A is a partner, to whom the Partnership Act 1908
da: person A is a limited partnership or an overseas limited partnership and person B is a general partner or a limited partner who takes part in the management of the limited partnership (within the meaning of the Limited Partnerships Act 2008
e: person A is a nominee or trustee for person B in relation to interests in a business; or
f: person A is a director of a company, or holds more than 10% of the control rights in the company, and person A and person B are parties to an agreement relating to—
i: the control of that company; or
ii: more than 20% of the control rights in that company; or
g: person A and person B are acting, or propose to act, or are likely to act, jointly or in concert in relation to a business; or
h: person A is a person who, in making a decision or exercising a power materially affecting a business, is accustomed, or under an obligation, or proposes, or is likely, to act in accordance with the directions, instructions, or wishes of person B.
2: References in subsection (1)(e) to (h) to a company or business relate to a company or business in respect of which a connection with an electricity business is relevant. Section 12(1)(a)(ii) amended 29 February 2008 section 14 Securities Markets Amendment Act 2006 Section 12(1)(a)(ii) amended 1 December 2002 section 30 Securities Markets Amendment Act 2002 Section 12(1)(b) amended 26 April 2005 section 7 Relationships (Statutory References) Act 2005 Section 12(1)(c) repealed 26 April 2005 section 7 Relationships (Statutory References) Act 2005 Section 12(1)(da) inserted 14 October 2008 section 9 Electricity Industry Reform Amendment Act 2008
13: Meaning of agency
Section 13 repealed 8 August 2001 section 5 Electricity Industry Reform Amendment Act 2001
14: Substance matters, not form
1: Any question under Parts 1 to 5
2: Without limiting subsection (1), a person may be involved in an electricity business, or be an associate or agency, regardless of whether a right, influence, power, obligation, or agreement—
a: is expressed or implied:
b: is direct or indirect:
c: is legally enforceable or not:
d: is related to a particular control right or not:
e: is subject to restraint or restriction or is capable of being made subject to restraint or restriction:
f: is exercisable presently or in the future:
g: is exercisable only on the fulfilment of a condition:
h: is exercisable alone or jointly with another person or persons.
3: A power, influence, or ability exercisable jointly with another person or persons is deemed to be exercisable by either or any of those persons.
4: A reference to a power or obligation includes a reference to a power, influence, ability, or requirement that arises from, or is capable of being exercised or required as the result of, a breach of any trust or agreement whether or not it is legally enforceable. 1988 No 234 s 5(4), (5), (6) Application of Act
15: Application to persons outside New Zealand
This Act extends to the acquisition or having of interests in electricity businesses in New Zealand by persons outside New Zealand. 1986 No 5 s 4(3)
16: Act binds the Crown
1: This Act binds the Crown except as provided in subsection (2).
2: This Act does not apply to the Crown in so far as this Act applies, or would apply, to the Crown's involvement in both a business that operates all or part of the national grid and in an electricity supply business.
2: Separation of lines and supply—Rules and exemptions
Ownership separation Heading substituted 14 October 2008 section 10 Electricity Industry Reform Amendment Act 2008
17: Ownership restrictions
1: The purpose of this section is to prevent a person being involved both in a line, and in generation or supply, in certain circumstances.
2: It is a contravention of this Part if a person has an involvement that is a breach of either or both of the following:
a: the connected generation cap:
b: the connected customers selling cap. Section 17 substituted 14 October 2008 section 10 Electricity Industry Reform Amendment Act 2008 Connected generation and connected customers selling caps Heading inserted 14 October 2008 section 10 Electricity Industry Reform Amendment Act 2008
17A: Connected generation cap rule
1: The connected generation cap is breached by a person if—
a: any of the person’s connected generation with a capacity greater than 5 MW in total (determined according to nameplate or nameplates) was commissioned before 20 May 2003; or
b: the person’s connected generation has a total capacity (determined according to nameplate or nameplates) that exceeds the greater of—
i: 50 MW; or
ii: 20% of the average of the maximum demand, in the immediately preceding 3 financial years, on the local network area.
2: This section is subject to section 17B Section 17A inserted 14  October 2008 section 10 Electricity Industry Reform Amendment Act 2008
17B: Small or encouraged connected generation
The following connected generation is not counted for the purpose of section 17A section 17D
a: generation commissioned on or after 8 August 2001 if the electricity generated from it is produced only from renewable energy sources:
b: generation commissioned on or after 8 August 2001 if the electricity generated from it is produced partly from renewable energy sources, as long as fossil fuels provide no more of the total fuel energy input for the generator or generators comprising the generation plant in any 12-month period than—
i: 20%; or
ii: any larger amount approved by the Minister (on the conditions, if any, he or she thinks fit) after first taking into account whether or not the generation uses new or advanced technology:
c: generation where the total capacity (determined according to nameplate or nameplates) of the generator is 5 MW or less if the generation was owned or operated, directly or indirectly, by the relevant person—
i: before 23 June 1998; and
ii: continuously between that date and the date when the person counts that generation for the purposes of section 17A
d: generation that is disregarded under section 19 Section 17B inserted 14 October 2008 section 10 Electricity Industry Reform Amendment Act 2008
17C: Connected customers selling cap rule
1: The connected customers selling cap is breached by a person if the person is involved in selling more electricity to connected customers within a local network area, in total, in a financial year, than the equivalent of the person’s qualifying generation within the local network area.
2: The person’s qualifying generation a + b + c where— a is the person’s connected generation that is counted for the purpose of the connected generation cap in section 17A b is any connected generation referred to in section 17B(a), (b), or (c) c is any generation referred to in section 17B(a) or (b)
a: on application by or on behalf of the person, the Commission has determined, by notice in the Gazette
b: the total capacity (determined according to nameplate or nameplates) of all generation in which the person has an involvement does not exceed 100 MW.
3: The Commission may not determine that any generation should be treated as being within more than 1 local network area. Section 17C inserted 14 October 2008 section 10 Electricity Industry Reform Amendment Act 2008 Corporate separation and arm’s-length rules Heading inserted 14 October 2008 section 10 Electricity Industry Reform Amendment Act 2008
17D: Threshold for corporate separation and arm's-length rules
A business is a connected electricity business section 17B section 17C(2) Section 17D inserted 14 October 2008 section 10 Electricity Industry Reform Amendment Act 2008
17E: Corporate separation and arm’s-length rules imposed
1: Every person or persons who carry on a connected electricity business must carry on the business involving the relevant line in a different company from the company that carries on the business involving the qualifying generation or the selling to connected customers.
2: Every person who is involved in either of the connected electricity businesses must comply, and ensure that the person’s electricity businesses comply, with the arm’s-length rules. Section 17E inserted 14 October 2008 section 10 Electricity Industry Reform Amendment Act 2008 Use-of-systems agreements rules for businesses with 5 MW or more of connected generation Heading inserted 14 October 2008 section 10 Electricity Industry Reform Amendment Act 2008
17F: Use-of-systems agreements rules for businesses with 5 MW or more of connected generation
1: This section applies to an electricity business—
a: that either—
i: is required to comply with the arm's-length rules; or
ii: would be required to comply with the arm's-length rules if the threshold for those rules were set at 5 MW of connected generation (instead of 10 MW); and
b: that sells more than 5 GWh of electricity to connected customers in a financial year.
2: Every director of that electricity business must ensure that—
a: the business has a comprehensive, written use-of-systems agreement that provides for the supply of line services (to the extent that those services are for the purpose of retailing) to the business that is involved in selling electricity (entered into, in the case of a business to which the corporate separation rule does not apply, as if the businesses were separate legal persons); and
b: the terms of that use-of-systems agreement do not discriminate in favour of one 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
c: the business operates in accordance with that use-of-systems agreement; and
d: the business publishes that use-of-systems agreement on an Internet site maintained by or on behalf of the business so that it is available to the public at all reasonable times.
3: The directors of that electricity business must publish on an Internet site maintained by or on behalf of the business, so that it is available to the public at all reasonable times, a certificate, signed by those directors, stating whether or not, in the preceding calender year,—
a: the terms in the use-of-systems agreement are a true and fair view of the terms on which line services were supplied in respect of the sales to which the agreement relates during that year; and
b: this section was otherwise fully complied with during that year.
4: Every director commits an offence who—
a: refuses or knowingly fails to comply with this section; or
b: publishes a use-of-systems agreement or a certificate knowing that it is false or misleading in a material particular.
5: Every director who commits an offence under subsection (4) is liable on summary conviction to a fine not exceeding $200,000. Section 17F inserted 14 October 2008 section 10 Electricity Industry Reform Amendment Act 2008 Exemption for Transpower Heading inserted 14 October 2008 section 10 Electricity Industry Reform Amendment Act 2008
17G: Exemption for Transpower New Zealand Limited for purpose of deferring investment in national grid
1: In this section, unless the context otherwise requires, Transpower
2: This section applies if, and to the extent to which, Transpower contracts with another person for that person to generate electricity for the purpose of deferring the need for investment by Transpower in the national grid.
3: Transpower is not involved in that person’s electricity generation for the purposes of this Act. Section 17G inserted 14 October 2008 section 10 Electricity Industry Reform Amendment Act 2008
18: 20% aggregate cross-ownership prohibition
Section 18 repealed 14 October 2008 section 11 Electricity Industry Reform Amendment Act 2008 Scope of application of rules in this Part Heading substituted 14 October 2008 section 12 Electricity Industry Reform Amendment Act 2008
19: Certain businesses and involvements to be disregarded
1: For the purposes of this Act, no account is to be taken of a person's business, or involvement or interest in a business, if—
a: the ordinary business of the person consists of, or includes, the lending of money and that person has the involvement or interest only as security given for a loan or guarantee of a loan entered into in the ordinary course of the business of that person or as a result of enforcing that security; or
b: that person has the involvement or interest by reason only of acting for another person to acquire or dispose of a security on behalf of the other person in the ordinary course of business of a sharebroker and that person is a person authorised to undertake trading activities on
c: that person—
i: has the involvement or interest by reason only that he or she has been authorised by resolution of the directors or other governing body of a body corporate to act as its representative at a meeting or meetings of members, or a class of members, of another person; and
ii: has no discretion to determine how to represent the body corporate at the meeting or meetings; or
d: that person—
i: has the involvement or interest solely by reason of being appointed as a proxy to vote at a meeting or meetings of members, or of a class of members, of another person; and
ii: has no discretion to determine how the proxy should be exercised at the meeting or meetings; or
e: that person has the involvement or interest by reason only that the person is a bare trustee of a trust to which the involvement or interest is subject; or
f: that person is involved only because the ordinary business of the person consists of or includes the selling of core assets of an electricity business, and the person does not operate those assets; or
g: that person is involved because the person has an interest in an irrigation scheme, where—
i: that scheme is physically connected to a generator or core generation assets and was built and is operated primarily for the purpose of irrigation; and
ii: that person does not hold, through the person's interest in the scheme, any equity return rights or control rights in, or manage or operate, the generator or core generation assets; or
ga: that person is involved because the person has an interest in a business that generates electricity from a geothermal energy source if—
i: the geothermal plant was commissioned between 1 January 1998 and the date on which this paragraph comes into force, and is currently owned by the person that commissioned it; and
ii: the output from the geothermal plant is less than 12 MW (determined according to nameplate or nameplates); or
gb: that person is involved in the generation of reserve energy that is in accordance with the terms and conditions for that reserve energy set by the Commission, as those terms are defined in the Electricity Act 1992
gc: that person is involved in the generation of electricity that is solely for the person’s own consumption or for the consumption of that person’s associates; or
gd: that person is involved in the generation of electricity that does not have a total annual nominal capacity greater than 5 GWh per annum (determined according to nameplate or nameplates); or
ge: that person is involved in selling no more than 5 GWh of electricity to connected customers within a local network area, in total, in a financial year; or
h: the business, involvement, or interest is exempted by the Commission under section 81
i: the business, involvement, or interest is declared, by regulations made under this Act, to be a disregarded business, involvement, or interest.
1A: For the purposes of this Act, no account is to be taken of a person’s involvement in a line that—
a: is not connected, directly or indirectly, to the national grid:
b: conveys electricity only from a generator to the national grid or from the national grid to a generator:
c: conveys less than 5 GWh per annum:
d: conveys electricity solely for the consumption of a person who is involved in the line or for the consumption of its associates:
e: conveys electricity (other than via the national grid) only from a generator to a local network or from a local network to a generator:
f: conveys electricity mostly in competition with another line or lines operated by another electricity business that is not an associate of a person who is involved in the first line, provided that the competition is actual competition and not potential competition.
2: For the purposes of subsection (1)(e), a trustee may be a bare trustee despite the fact that he or she is entitled as a trustee to be remunerated out of the income or property of the trust.
3: This section is subject to section 80 1988 No 234 s 6 Section 19(1)(b) amended 1 December 2002 section 30 Securities Markets Amendment Act 2002 Section 19(1)(ga) inserted 8 August 2001 section 6 Electricity Industry Reform Amendment Act 2001 Section 19(1)(gb) inserted 14 October 2008 section 13(1) Electricity Industry Reform Amendment Act 2008 Section 19(1)(gc) inserted 14 October 2008 section 13(1) Electricity Industry Reform Amendment Act 2008 Section 19(1)(gd) inserted 14 October 2008 section 13(1) Electricity Industry Reform Amendment Act 2008 Section 19(1)(ge) inserted 14 October 2008 section 13(1) Electricity Industry Reform Amendment Act 2008 Section 19(1A) inserted 14 October 2008 section 13(2) Electricity Industry Reform Amendment Act 2008 Application of ownership separation rules to trust-like interests
20: Non-specific interests rule
1: The purpose of subsections (2) to (5) is to ensure that ownership separation is required of trust-like entities where there are significant levels of membership overlap.
2: No person (person A) may exceed the overlap threshold with another person (person B) where—
a: person A is involved in business A; and
b: person B is involved in business B; and
c: either or both of person A or person B is a trust-like entity; and
d: person B has a reverse overlap with person A or members of person A;— and, if person A is in breach of this requirement, so is person B.
3: Reverse overlap section 3
4: No local authority with an involvement in business A may, after 23 June 1998, establish a local overlap with a trust-like entity involved in business B.
5: For the purposes of subsection (4), local overlap
6: The purpose of subsections (7) and (8) is to prevent avoidance of the ownership separation rules where interests in a trust-like entity are equivalent to an involvement.
7: No person may participate in a trust-like entity which is involved in business A if that person is also involved in business B, or participates in a trust-like entity which is involved in business B.
8: For the purposes of subsection (7), a person participates in a trust-like entity when it has—
a: expectancies receivable alone, or with any group of associates, in respect of benefits from the trust-like entity which are equivalent in significance to 10% or more of all equity return rights available from the trust-like entity; or
b: a material influence over the trust-like entity where the definition of material influence in section 11
9: For the purposes of this section, trust-like entity
10: This section is subject to section 34
21: Responsibility for remedying contravention
1: This section governs the order of responsibility for remedying contraventions of section 20
2: The contraventions must be remedied as follows:
a: first, by any person whose activities have resulted in the contravention where the person knew or ought to have known that the contravention was likely; and
b: second, by any person in which interests that constitute the overlap are held; and
c: third, by the members whose interests cause the contravention, other than any referred to in paragraph (a).
3: In taking steps to comply with subsection (2)(b), unless the parties responsible otherwise agree, the interests of the persons whose interests most recently became part of the overlap must be first divested.
4: The trustees of a trust may vary the trust deed, and the board of a body corporate may amend the constitution, to the extent necessary to enable the contravention to be remedied. Process for compliance Heading repealed 14 October 2008 section 14 Electricity Industry Reform Amendment Act 2008
22: Compliance with ownership separation rules
Section 22 repealed 14 October 2008 section 14 Electricity Industry Reform Amendment Act 2008
23: Agreements and negotiations leading to separation
Section 23 repealed 14 October 2008 section 14 Electricity Industry Reform Amendment Act 2008
24: Corporate separation
Section 24 repealed 14 October 2008 section 14 Electricity Industry Reform Amendment Act 2008
25: Arms length rules
Section 25 repealed 14 October 2008 section 14 Electricity Industry Reform Amendment Act 2008
26: 12 months' lead in time to full arms length
Section 26 repealed 14 October 2008 section 14 Electricity Industry Reform Amendment Act 2008 Interim exemptions, rules, and compliance options Heading repealed 14 October 2008 section 14 Electricity Industry Reform Amendment Act 2008
27: Purpose of sections
Section 27 repealed 14 October 2008 section 14 Electricity Industry Reform Amendment Act 2008 Exemptions for certain involvements Heading repealed 14 October 2008 section 14 Electricity Industry Reform Amendment Act 2008
28: Exemption for existing involvements until separation
Section 28 repealed 14 October 2008 section 14 Electricity Industry Reform Amendment Act 2008
29: Exemption for acquisitions of one person's cross-involvements
Section 29 repealed 14 October 2008 section 14 Electricity Industry Reform Amendment Act 2008 Ban on expanding cross-involvements Heading repealed 14 October 2008 section 14 Electricity Industry Reform Amendment Act 2008
30: Ban on expansion in cross-involvements
Section 30 repealed 14 October 2008 section 14 Electricity Industry Reform Amendment Act 2008 Options for persons wishing to expand Heading repealed 14 October 2008 section 14 Electricity Industry Reform Amendment Act 2008
31: Exemption for any involvement in single unseparated business
Section 31 repealed 14 October 2008 section 14 Electricity Industry Reform Amendment Act 2008
32: Exemption for certain Treaty-related transactions
Section 32 repealed 14 October 2008 section 14 Electricity Industry Reform Amendment Act 2008
33: Exemption for Highbank right of first refusal in Ngāi Tahu Treaty settlement
Section 33 repealed 14 October 2008 section 14 Electricity Industry Reform Amendment Act 2008
34: Exemption for companies with direct ownership
Section 34 repealed 14 October 2008 section 14 Electricity Industry Reform Amendment Act 2008
35: Other expansion option
Section 35 repealed 14 October 2008 section 14 Electricity Industry Reform Amendment Act 2008 Compliance process for existing 20% aggregates Heading repealed 14 October 2008 section 14 Electricity Industry Reform Amendment Act 2008
36: Compliance process for existing 20% aggregates
Section 36 repealed 14 October 2008 section 14 Electricity Industry Reform Amendment Act 2008 Mirror trust and mirror co-operative option Heading repealed 14 October 2008 section 14 Electricity Industry Reform Amendment Act 2008
37: Mirror trust option
Section 37 repealed 14 October 2008 section 14 Electricity Industry Reform Amendment Act 2008
38: Qualifying conditions on mirror trust option
Section 38 repealed 14 October 2008 section 14 Electricity Industry Reform Amendment Act 2008
39: Transfer of business to mirror trust
Section 39 repealed 8 August 2001 section 12 Electricity Industry Reform Amendment Act 2001
40: Beneficiaries of mirror trusts
Section 40 repealed 14 October 2008 section 14 Electricity Industry Reform Amendment Act 2008
41: Terms of trust deeds for mirror trusts
Section 41 repealed 14 October 2008 section 14 Electricity Industry Reform Amendment Act 2008
42: Mirror co-operatives
Section 42 repealed 14 October 2008 section 14 Electricity Industry Reform Amendment Act 2008
43: Exemption of mirror trusts from ownership separation rules
Section 43 repealed 14 October 2008 section 14 Electricity Industry Reform Amendment Act 2008
44: Exemption of mirror trusts from rule limiting expansion of control by trust-like agencies
Section 44 repealed 8 August 2001 section 15 Electricity Industry Reform Amendment Act 2001
45: Trusts that cease to be mirror trusts
Section 45 repealed 14 October 2008 section 14 Electricity Industry Reform Amendment Act 2008 No expansion of control by trust-like agencies in electricity supply Heading repealed 8 August 2001 section 17(1) Electricity Industry Reform Amendment Act 2001
46: No expansion of control by trust-like agencies in electricity supply
Section 46 repealed 8 August 2001 section 17(1) Electricity Industry Reform Amendment Act 2001 Exemptions for generation Heading repealed 14 October 2008 section 14 Electricity Industry Reform Amendment Act 2008
46A: Exemption for new
Section 46A repealed 14 October 2008 section 14 Electricity Industry Reform Amendment Act 2008
46B: Electricity lines business to publicly notify acquisition or increase of distributed generation
Section 46B repealed 20 May 2003 section 11 Electricity Industry Reform Amendment Act 2004 Exemptions for generation commissioned after 20 May 2003 and for reserve energy Heading repealed 14 October 2008 section 14 Electricity Industry Reform Amendment Act 2008
46C: Exemptions for generation commissioned after 20 May 2003 and for reserve energy
Section 46C repealed 14 October 2008 section 14 Electricity Industry Reform Amendment Act 2008
3: Separation of lines and supply—Enforcement and penalties
Preliminary
47: Contraventions
In this Part, unless the context otherwise requires, a reference to a person who has contravened a provision of this Act is a reference to a person who—
a: has contravened the provision; or
b: has attempted to contravene the provision; or
c: has aided, abetted, counselled, or procured any other person to contravene the provision; or
d: has induced, or attempted to induce, any other person, whether by threats or promises or otherwise, to contravene the provision; or
e: has been in any way, directly or indirectly, knowingly concerned in, or party to, the contravention by any other person of the provision; or
f: has conspired with any other person to contravene the provision.
48: Inadvertent contraventions
1: It is a defence to any proceedings under this Part for contravention of Part 2
a: the contravention arose otherwise than by reason of the person's action; and
b: the person did not know, and ought not reasonably to have known, of the contravention.
2: This defence expires 3 months after the person became aware of the contravention.
3: This section does not apply to a contravention of section 17D 17E 17F Section 48(1) amended 14 October 2008 section 15(1) Electricity Industry Reform Amendment Act 2008 Section 48(3) added 14 October 2008 section 15(2) Electricity Industry Reform Amendment Act 2008
49: Jurisdiction of High Court
In accordance with this Part, the High Court may hear and determine the following matters:
a: proceedings for the recovery of pecuniary penalties under section 51
b: applications for injunctions under section 52
c: actions for damages under section 53
d: proceedings under section 54
e: proceedings under section 55
f: applications under section 56
g: applications for orders under section 89 section 58 1986 No 5 s 75
50: Jurisdiction of District Courts
In accordance with this Part, the District Court may hear and determine proceedings for offences against sections 100 103 section 58 1986 No 5 s 76 Penalties
51: Pecuniary penalties
1: If the court is satisfied on the application of the Commission or any other person that a person has contravened Part 2 section 68
2: The maximum amount of the pecuniary penalty is the same as may from time to time be specified in section 80 1986 No 5 s 80
52: Injunctions
Where it appears to the court, on the application of the Commission or any other person, that a person intends to engage, or is engaging, or has engaged, in conduct that constitutes or would constitute a contravention of Part 2 section 68
a: grant an injunction restraining any person from engaging in conduct that constitutes or would constitute such a contravention:
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 it thinks necessary in the circumstances of the case. 1986 No 5 s 84
53: Actions for damages
1: Every person is liable in damages for any loss or damage caused by that person engaging in conduct that constitutes a contravention of Part 2 section 68
2: The amount of damages is the same as the amount that applies from time to time under section 82 1986 No 5 s 82
54: Court may order divestiture of assets or voting securities
1: In any case where the court, on the application of the Commission or any other person, is satisfied that any person has contravened Part 2
a: give directions for the disposal by that person of the assets or voting securities that may be specified in the order; or
b: prohibit the exercise, for such period as the court thinks fit, of any right to vote attaching to any voting securities specified in the order (being securities in respect of which the person is in contravention of Part 2
c: declare that the exercise of voting or other rights attaching to any voting securities (being securities in respect of which the person is in contravention of Part 2
d: for the purpose of securing compliance with any other order made under this subsection, direct any person to do or refrain from doing a specified act.
2: An order under subsection (1) may be made on such terms and conditions as the court thinks fit.
3: Without limiting subsection (2), an order made under this section may require—
a: that assets and voting securities are, or any interest in them is, disposed of within a time specified by the court, regardless of the price obtainable at that time:
b: that neither the assets and voting securities are, nor any interest in them is, disposed of to any specified person or class of persons:
c: that the assets and voting securities are, or any interest in them is, disposed of in a manner and on terms specified by the court:
d: that the proceeds of any disposition are—
i: applied towards the costs of the application:
ii: paid in such amounts and to such persons as the court specifies.
4: This section does not apply to a contravention of section 17D 17E 17F 1978 No 103 s 32(1)(d), (l), (m), (2), (3) 1986 No 5 s 85 Section 54(4) added 14 October 2008 section 16 Electricity Industry Reform Amendment Act 2008
55: Additional penalty for contravention involving commercial gain
1: The court may order a person who is found to have contravened Part 2 section 68
2: The order may be in addition to any other penalty the court may impose under this Act.
3: For the purpose of subsection (1), the value of any gain is to be assessed by the court, and any amount ordered to be paid is recoverable in the same manner as a pecuniary penalty. 1990 No 98 s 47 1991 No 69 s 339B 1994 No 104 s 409 1996 No 69 s 8
56: Other powers to give directions, re-open agreements
1: If the court is satisfied, on the application of the Commission or any other person, that a person has contravened Part 2 section 68
2: If directions under subsection (1) are not complied with to the satisfaction of the court, the court may—
a: re-open any agreement that contravenes, or gives rise to a contravention of, this Act and make any orders it deems just and equitable for the purpose of reopening the transaction and setting aside the contravention, 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 (including a direction that a person cease to be a manager of the business), and every person is bound by the directions.
56A: Limits on defences and penalties for failure to publicly notify acquisition or increase of distributed generation
Section 56A repealed 20 May 2003 section 13 Electricity Industry Reform Amendment Act 2004 Miscellaneous provisions
57: Miscellaneous
1: In determining an appropriate penalty under this Part, 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 or not the person has previously been found by the court in proceedings under this Part to have engaged in any similar conduct.
2: The standard of proof in proceedings under this Part is the standard of proof applying in civil proceedings.
3: In any proceedings under this Part, the Commission, upon the order of the court, may obtain discovery and administer interrogatories.
4: Proceedings under this Part may be commenced within 3 years after the matter giving rise to the contravention arose.
5: Where conduct by any person constitutes a contravention of 2 or more provisions of Part 2 section 68 1986 No 5 s 80(2)–(6)
58: Application of Commerce Act 1986
and the Crown Entities Act 2004 The following provisions of the Commerce Act 1986
a: sections 77 78
b: section 79
c: section 88
ca: section 88A
d: section 89
e: section 90
f: section 98
g: section 98A
h: sections 98B to 98G
i: section 99
j: section 100
k: section 100A
l: sections 101 102
m: section 103
n: section 104
o:
p: section 106
q: section 106A
r: section 109 Section 58 heading amended 25 January 2005 section 200 Crown Entities Act 2004 Section 58(ca) inserted 14 October 2008 section 17 Electricity Industry Reform Amendment Act 2008 Section 58(o) repealed 25 January 2005 section 200 Crown Entities Act 2004
59: Additional proceedings
Proceedings brought under this Part are in addition to any proceedings brought under any other Act.
4: Separation of lines and supply—Taxation
Part 4 repealed 14 October 2008 section 18 Electricity Industry Reform Amendment Act 2008
60: Purpose
Section 60 repealed 14 October 2008 section 18 Electricity Industry Reform Amendment Act 2008
61: Mirror co-operatives
Section 61 repealed 14 October 2008 section 18 Electricity Industry Reform Amendment Act 2008
62: Mirror trusts
Section 62 repealed 14 October 2008 section 18 Electricity Industry Reform Amendment Act 2008
63: Consolidation rules modified generally for purposes of corporate ownership split and ownership split
Section 63 repealed 14 October 2008 section 18 Electricity Industry Reform Amendment Act 2008
64: Gifts not to form part of capital gain amounts
Section 64 repealed 14 October 2008 section 18 Electricity Industry Reform Amendment Act 2008
65: No stamp duty payable
Section 65 repealed 20 May 1999 section 7 Stamp Duty Abolition Act 1999
66: Shares not acquired for resale
Section 66 repealed 14 October 2008 section 18 Electricity Industry Reform Amendment Act 2008
67: Definitions for tax sections
Section 67 repealed 14 October 2008 section 18 Electricity Industry Reform Amendment Act 2008
5: Separation of lines and supply—Miscellaneous provisions
Anti-avoidance
68: Duty not to defeat purposes of Parts 1 to 5
No person may at any time do anything to defeat the purposes of Parts 1 to 5 1992 No 56 s 67(1) No compensation
69: No compensation
1: No compensation shall be payable by the Crown to any person or in any other manner howsoever for any loss or damage or any taxation liability arising from the enactment or operation of this Act.
2: Subsection (1) applies notwithstanding any other enactment or rule of law. 1993 No 7 s 8 Disclosure
70: Disclosure regime
1: Every person must disclose the following, in accordance with any disclosure regulations that may from time to time be made under section 87
a: an involvement or interest in an electricity business:
b: a non-specific interest in a person involved in an electricity business.
c:
2: Any such regulations may provide for any or all of the following:
a: by and to whom the disclosure is made:
b: what needs to be disclosed:
c: when it must be disclosed:
d: the form of the disclosure:
e: the maintenance of files of notices or registers of involvements or interests and access to those files or registers and limitations on access to those files or registers:
f: exemptions from the requirements of the regulations:
g: a method of ascertaining percentages for the purpose of the 10% and 20% thresholds:
h: the consequences of any failure to make disclosure in accordance with the regulations, including providing for the court to make orders directing disclosure, compensatory orders, or other orders described in section 42ZF
3: Subsection (2) does not limit the generality of section 87(2)(f) Section 70(1)(c) repealed 14 October 2008 section 19 Electricity Industry Reform Amendment Act 2008 Section 70(2)(h) amended 29 February 2008 section 14 Securities Markets Amendment Act 2006
70A: Disclosure as to electricity sold to connected customers within local network area
1: Every person who sells electricity to connected customers must provide to the Commission, as soon as practicable after the end of each financial year, a statement that—
a: shows the calculation of the person’s qualifying generation in respect of that financial year; and
b: sets out how much electricity the person sold to connected customers during that financial year; and
c: includes a certificate, signed by the directors of the electricity business, stating whether or not the quantity of electricity the person sold to connected customers during that financial year exceeded the limit set out in section 17C
2: The statement must be in the form prescribed by the Commission from time to time.
3: The statement must be audited by an independent chartered accountant.
4: The statement must be published on an Internet site maintained by or on behalf of the electricity business so that it is available to the public at all reasonable times.
5: Every person commits an offence who—
a: refuses or knowingly fails to provide the statement to the Commission; or
b: provides the statement to the Commission knowing that it is false or misleading in a material particular.
6: Every person who commits an offence under subsection (5) is liable on summary conviction to a fine not exceeding $200,000. Section 70A inserted 14 October 2008 section 20 Electricity Industry Reform Amendment Act 2008
70B: 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 Commission, 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 director must publish that statement on an Internet site maintained by or on behalf of the business so that it is available to the public at all reasonable times. Section 70B inserted 14 October 2008 section 20 Electricity Industry Reform Amendment Act 2008 Matters relevant to implementation of Part 2 Heading repealed 14 October 2008 section 21 Electricity Industry Reform Amendment Act 2008
71: Trust deeds
Section 71 repealed 14 October 2008 section 21 Electricity Industry Reform Amendment Act 2008
72: Beneficiaries of customer lines trusts
Section 72 repealed 14 October 2008 section 21 Electricity Industry Reform Amendment Act 2008
73: Shareholders of lines co-operatives
Section 73 repealed 14 October 2008 section 21 Electricity Industry Reform Amendment Act 2008
74: Power to make gifts
Section 74 repealed 14 October 2008 section 21 Electricity Industry Reform Amendment Act 2008
75: Application of Securities Act 1978
Section 75 repealed 14 October 2008 section 21 Electricity Industry Reform Amendment Act 2008
76: Protection from other Acts
Section 76 repealed 14 October 2008 section 21 Electricity Industry Reform Amendment Act 2008
77: Member approvals, etc
Section 77 repealed 14 October 2008 section 21 Electricity Industry Reform Amendment Act 2008
78: Consultation requirements
Section 78 repealed 14 October 2008 section 21 Electricity Industry Reform Amendment Act 2008
79: Technical redundancy
Section 79 repealed 14 October 2008 section 21 Electricity Industry Reform Amendment Act 2008 Extensions and exemptions
80: Extensions
1: The Commission may, for the purposes of this Act, in its discretion, by notice in the Gazette section 19
2: The Commission may exercise that power by designating a business or involvement or interest as one to which a paragraph of section 19
3: This section does not authorise the Commission to make a class designation.
4: Before making a designation under this section, the Commission must do everything reasonably possible on its part to advise the person whose business, involvement, or interest is being designated of the proposed terms of it; and give that person a reasonable opportunity to make submissions to the Commission.
5: Subsection (4) does not apply in respect of a designation if the Commission considers that it is desirable in the public interest that the designation be made urgently.
6: Failure to comply with subsection (4) does not affect the validity of a designation.
7: The designation takes effect from the date specified in the designation (which may not be earlier than the date of the Gazette
8: The designation has effect according to its tenor.
9: The Commission may in like manner vary or revoke any such designation.
10: The Commission must keep a list of all current designations made by it under this section available for public inspection free of charge during normal office hours at the offices of the Commission.
11: A designation under this section is not a regulation within the meaning of the Regulations (Disallowance) Act 1989
81: Exemptions
1: The Commission may, for the purposes of this Act, in its discretion and upon the terms and conditions (if any) that it thinks fit, by notice in the Gazette
a: any business, involvement, or interest, or class of business, involvement, or interest, from the application of this Act; or
b: any person or class of persons from compliance with any provisions of this Act or any regulations made under it.
2:
3: The exemption takes effect from the date specified in the exemption (which may not be earlier than the date of the Gazette
4: The exemption has effect according to its tenor.
5: The Commission may in like manner vary or revoke any such exemption.
6: The Commission must keep a list of all current exemptions made by it under this section available for public inspection free of charge during normal office hours at the offices of the Commission.
7: An exemption under this section is not a regulation within the meaning of the Regulations (Disallowance) Act 1989 Section 81(1) substituted 8 August 2001 section 22 Electricity Industry Reform Amendment Act 2001 Section 81(2) repealed 8 August 2001 section 22 Electricity Industry Reform Amendment Act 2001 Application of other Acts
82: Application of Commerce Act 1986
Except as provided in section 83 Commerce Act 1986 Commerce Act 1986
83: Not interconnected under Commerce Act 1986
1: For the purposes of Part 2 businesses to which sections 17D 17E
2: Subsection (1) applies notwithstanding section 2(7) Section 83(1) amended 14 October 2008 section 22 Electricity Industry Reform Amendment Act 2008
84: Application of Energy Companies Act 1992
Section 84 repealed 14 October 2008 section 23 Electricity Industry Reform Amendment Act 2008
85: Dealing with land held for public works
Section 85 repealed 14 October 2008 section 23 Electricity Industry Reform Amendment Act 2008
86: Illegal Contracts Act 1970
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 this Act.
2: An agreement entered into in breach of this Act is voidable at the option of any party to the agreement who is not in breach of this Act 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 this Act. Regulation-making powers
87: Regulations
1: The Governor-General may from time to time, by Order in Council made on the recommendation of the Commission, make regulations for all or any of the following purposes:
a: declaring a class of businesses or involvements or interests to be a disregarded business or involvement or interest to which this Act does not apply for the purpose of section 19(1)(i)
b: declaring a class of businesses or involvements or interests to be businesses, involvements, or interests that are no longer disregarded under section 19
2: The Governor-General may from time to time, by Order in Council, make regulations for all or any of the following purposes:
a:
b: setting out the method of determining persons or amounts for the purpose of section 10(4)
c:
d:
e: declaring any person or class of persons or type of overlap or non-specific interest to be exempt (and on what conditions) from section 20
f: providing for the disclosure of involvements in section 70
g: providing such anti-avoidance measures as are necessary to ensure that the purposes of this Act are not defeated:
h: adding to or omitting anything from the arm's-length
i: prescribing the procedure to be followed under this Act in respect of applications and notices to, and proceedings of, the Commission:
j: prescribing forms of applications, notices, and other documents required for the purposes of this Act, and requiring the use of such forms:
k: prescribing the matters in respect of which fees or charges are payable under this Act, 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 remitted or waived:
l: providing for such other matters as are contemplated by or are necessary for giving full effect to this Act and for its due administration. Section 87(2)(a) repealed 14 October 2008 section 24(1) Electricity Industry Reform Amendment Act 2008 Section 87(2)(c) repealed 14 October 2008 section 24(1) Electricity Industry Reform Amendment Act 2008 Section 87(2)(d) repealed 14 October 2008 section 24(1) Electricity Industry Reform Amendment Act 2008 Section 87(2)(f) amended 14 October 2008 section 24(2) Electricity Industry Reform Amendment Act 2008 Section 87(2)(h) amended 14 October 2008 section 27 Electricity Industry Reform Amendment Act 2008
6: Price restraint for line charges for domestic and rural consumers
88: Regulations relating to charges for line function services
1: The Governor-General may from time to time, by Order in Council, make regulations imposing or providing for the imposition of restraint in respect of the charges relating to line function services—
a: to domestic premises (as defined in section 90
b: to consumers in sparsely populated areas ( rural consumers
2: Without limiting the generality of subsection (1), regulations made under this section may impose, or provide for the imposition of, price restraint in respect of the charges relating to line function services to domestic premises or rural consumers—
a: by electricity distributors generally or by particular classes of electricity distributors or by individual electricity distributors:
b: in respect of particular classes of areas or an individual area or areas, defined by reference to geographic area or sparsity of population or distance from main centres or any other method of definition:
c: in respect of particular classes of consumers.
3: Regulations made under this section do not apply to—
a: the offering to consumers of terms and conditions for new line function services:
b: charges relating to the national grid.
4: Without limiting the generality of subsection (1), regulations made under this section may impose, or provide for the imposition of, price restraint in respect of charges for line function services, despite the fact that the charge is not payable directly by an end-consumer to an electricity distributor, but is payable via an electricity retailer. 1992 No 122 s 63(1), (2)
89: Way in which price restraint may be imposed
1: Price restraint imposed by or pursuant to regulations made under section 88
a: control, in relation to charges for line function services to domestic premises or rural consumers,—
i: the amount of the charge:
ii: the amount of any component of the charge:
iii: the proportion that any component of the charge may bear to the total charge or to any part of the charge:
b: control the frequency with which the charge, or any component of the charge, may be increased:
c: control the amount of any increase in the charge, or any component of the charge.
2: Without limiting the generality of the foregoing provisions of this section and section 88 1992 No 122 s 63(3), (4)
90: Definition of domestic premises
For the purposes of section 88 domestic premises
a: premises that constitute part of any prison that is a Corrections prison or a Police jail
b: premises that constitute part of any hospital, home, or other institution for the care of sick, disabled, or aged persons:
c: premises that constitute part of Police barracks, or Police cells and lock-ups:
d: premises that constitute any barracks conducted by the Armed Forces for the accommodation of persons subject to the Armed Forces Discipline Act 1971
e: premises that constitute part of any hostel, barracks, dormitory, or other similar type of premises providing accommodation for any persons or class of persons:
f: premises that constitute part of a building occupied by a club and used by the club for the provision of temporary or transient accommodation to members of the club:
g: premises that constitute part of any hotel in respect of which there is in force an on-licence under the Sale and Supply of Alcohol Act 2012
h: premises that constitute part of any hotel, motel, boardinghouse, or lodginghouse used for the provision of temporary or transient accommodation:
i: premises that constitute part of any camping ground, motor camp, or marina. 1992 No 122 s 64 Section 90(a) amended 1 June 2005 section 206 Corrections Act 2004 Section 90(g) amended 18 December 2013 section 417(1) Sale and Supply of Alcohol Act 2012
91: Offences
1: Every person commits an offence and is liable on summary conviction to a fine not exceeding $500,000 who, without lawful justification or excuse, acts in contravention of, or fails to comply in any respect with, any provision of any regulations made under section 88
2: Where—
a: a person is convicted of an offence against this section; and
b: the offence consists of or includes charging for line function services to domestic premises or rural consumers in excess of the charge that is authorised or permitted by regulations made under section 88 the court, in addition to or instead of passing any other sentence or making any other order, may make an order for the payment by the defendant of an amount not exceeding the difference (to be ascertained and specified by the court) between the amount charged for the line function services and the amount so authorised or permitted.
3: All money payable pursuant to an order made under subsection (2) is recoverable, in accordance with the Summary Proceedings Act 1957
4: Where, in any case to which subsection (2) applies, the court is satisfied that the whole or any part of the charge has been paid to the defendant by any other person, the court, if it considers that it is just and equitable, may make an order authorising the payment to that other person of the whole or such part of any amount paid by the defendant under that subsection, as the court thinks fit.
5: An order under subsection (4) is sufficient authority to the Registrar of the court to pay the amount so authorised. 1992 No 122 s 65
92: Other Acts relating to price control not affected
Nothing in this Part limits or affects Part 4 Section 92 amended 1 April 2009 section 30(2) Commerce Amendment Act 2008
93: Interpretation
Terms used in this Part are to be interpreted in accordance with the Electricity Act 1992
7: Amendments to Electricity Act 1992
Part 7 repealed 14 October 2008 section 25 Electricity Industry Reform Amendment Act 2008
94: Regulations relating to information disclosure
Section 94 repealed 14 October 2008 section 25 Electricity Industry Reform Amendment Act 2008
95: Regulations
Section 95 repealed 14 October 2008 section 25 Electricity Industry Reform Amendment Act 2008
96: Offences
Section 96 repealed 14 October 2008 section 25 Electricity Industry Reform Amendment Act 2008
8: Split of Electricity Corporation of New Zealand
Part 8 repealed 14 October 2008 section 26 Electricity Industry Reform Amendment Act 2008
97: Interpretation
Section 97 repealed 14 October 2008 section 26 Electricity Industry Reform Amendment Act 2008
98: Directions by shareholding Ministers
Section 98 repealed 14 October 2008 section 26 Electricity Industry Reform Amendment Act 2008
99: Principal objective of ECNZ
Section 99 repealed 14 October 2008 section 26 Electricity Industry Reform Amendment Act 2008
100: Enactments amended
Section 100 repealed 14 October 2008 section 26 Electricity Industry Reform Amendment Act 2008
101: Amendment to Electricity Act 1992
Section 101 repealed 14 October 2008 section 26 Electricity Industry Reform Amendment Act 2008