Electricity (Renewable Preference) Amendment Act 2008

1: Title
This Act is the Electricity (Renewable Preference) Amendment Act 2008.
2: Commencement
This Act comes into force on the day after the date on which it receives the Royal assent.
3: Principal Act amended
This Act amends the Electricity Act 1992 2008-09-26 Electricity Act 1992
4: New Part 6A inserted
The following Part is inserted after Part 6
6A: Restriction on new fossil-fuelled thermal electricity generating capacity
Preliminary provisions
62A: Purpose of this Part
The purpose of this Part is to reduce the impact of fossil-fuelled thermal electricity generation on climate change by creating a preference for renewable electricity generation through the implementation of a 10-year restriction on new baseload fossil-fuelled thermal electricity generation capacity, except where an exemption is appropriate (for example, to ensure security of supply).
62B: Expiry of this Part
This Part expires on the close of the day that is 10 years after the date on which this Part comes into force.
62C: Interpretation
1: In this Part, unless the context otherwise requires,— co-generation process commencement capacity distribution network
a: the national grid; or
b: an embedded network that is used to convey less than 2.5 GWh per annum exemption existing plant
a: means an electricity generation plant that is in operation at the commencement of this Part; and
b: includes an electricity generation plant that was commissioned before the commencement of this Part that, at that commencement,—
i: is temporarily not in operation (for example, as a result of maintenance being carried out on the plant); or
ii: is not in operation but is available to come back into operation at less than 1 week's notice fossil fuel
a: natural gas:
b: coal (as defined in section 2(1) of the Crown Minerals Act 1991):
c: petroleum:
d: any refined petroleum product:
e: any other obligation fuel (as defined in the Climate Change Response Act 2002) greenhouse gas nameplate natural gas
a: all gaseous hydrocarbons produced from wells, including wet gas and residual gas remaining after the extraction of condensate from wet gas; and
b: liquid hydrocarbons, other than condensate, extracted from wet gas and sold as natural gas liquids, for example, liquid petroleum gas; and
c: coal seam gas operate petroleum specified generation plant
a: means an electricity generation plant that—
i: uses, or will use, fossil fuels if fossil fuels provide, or will provide, more than 20% of the total fuel energy input for the generator or generators constituting the plant in any 12-month period of operation commencing on the first day of operation or an anniversary of that date; and
ii: has, or will have, a rated generating capacity (determined according to its nameplate or nameplates) of more than 10 MW; but
b: does not include—
i: an existing plant; or
ii: an electricity generation plant that is operating in accordance with a contract for reserve energy entered into by, or on behalf of, the Commission; or
iii: an electricity generation plant that is declared by regulations not to be a specified generation plant start-up time
2: For the purposes of the definition of specified generation plant and section 62G(1)(d)
3: For the purposes of this Part, average load factor
4: If an existing plant having, at the commencement of this Part, the characteristics described in paragraph (a) subsection (1) paragraph (b)(ii) or (iii) Restriction on connection and operation of specified generation plant
62D: Restriction on connection and operation of specified generation plant
1: No person may connect a specified generation plant to the national grid or a distribution network, or operate a specified generation plant, unless—
a: the person has an exemption in relation to the plant; and
b: the plant is connected and operated in accordance with the exemption.
2: Every person who breaches subsection (1)
62E: Additional penalty for breach involving commercial gain
1: If a person is convicted of an offence under section 62D
2: The order may be in addition to any other penalty the court may impose under this Part.
3: For the purpose of subsection (1)
4: In this section, court Exemptions
62F: Minister of Energy may grant exemption
1: The Minister of Energy may, by notice in the Gazette section 62D
2: The Minister of Energy may only grant an exemption that—
a: implements the effect of a recommendation of the Commission (including in relation to terms and conditions); and
b: does not differ from that recommendation in any material way (for example, other than in matters of drafting style or minor detail).
3: More than 1 exemption may be granted in respect of a specified generation plant.
4: To avoid doubt, exemptions are not regulations for the purposes of the Regulations (Disallowance) Act 1989 and the Acts and Regulations Publication Act 1989.
5: The Minister of Energy may vary an exemption in the same way as an exemption may be granted under this section.
62G: Minister of Energy may only grant exemption if satisfied of certain matters
1: The Minister of Energy may only grant an exemption if he or she is satisfied that 1 or more of the following applies:
a: the specified generation plant will be a non-baseload plant that will—
i: have an average load factor less than a prescribed limit; and
ii: emit greenhouse gases less than a prescribed limit; and
iii: have a start-up time less than a prescribed limit; or
b: the specified generation plant, or the increased capacity referred to in section 62C(4)
c: the specified generation plant will be necessary for the purpose of forming part of a co-generation process that will operate above an energy efficiency level prescribed for the purposes of this paragraph; or
d: the specified generation plant will use a combination of renewable, or other non-fossil fuel, energy sources and fossil fuels, being a plant—
i: in respect of which fossil fuels will provide less than a prescribed proportion of the total fuel energy input for the generator or generators constituting the plant in any 12-month period of operation commencing on the first day of operation or an anniversary of that date; and
ii: that will operate above an energy efficiency level prescribed for the purposes of this subparagraph (if any); and
iii: that will emit greenhouse gases less than a limit prescribed for the purposes of this subparagraph (if any); or
e: the specified generation plant will be connected and operated in circumstances where an existing thermal electricity generation plant will be retired in whole or in part and the specified generation plant together with any part of the existing thermal electricity generation plant that is not retired will be operated in a manner that—
i: will reduce greenhouse gas emissions by at least 20% (based on emissions of the existing thermal electricity generation plant and projected emissions assessed in the prescribed manner); and
ii: will not reduce security of supply below prescribed margins (as assessed in the prescribed manner).
2: For the purposes of subsection (1)(a) section 62O
3: For the purposes of subsection (1)(d) section 62O
4: The Minister of Energy must, when considering whether to grant an exemption, have regard to any prescribed matters.
62H: Grounds and terms and conditions of exemption
1: The Minister of Energy must specify in the exemption the ground or purpose under section 62G(1)
2: The Minister of Energy may grant an exemption on any terms and conditions he or she reasonably considers are necessary to give effect to the purpose of this Part (subject to section 62F(2)
3: A person who is granted an exemption must ensure that the specified generation plant is operated in accordance with—
a: any purpose under section 62G(1)
b: all terms and conditions of the exemption.
4: The Commission may modify the terms and conditions of an exemption in the prescribed manner (for example, to allow a plant operating under an exemption to be operated at an increased capacity in the event of a present emergency).
62I: Public consultation on recommendations
1: Before making a recommendation to the Minister of Energy to grant an exemption, the Commission must—
a: publish its intention to do so and invite members of the public and interested organisations to give their views on the matter; and
b: give a reasonable opportunity to those persons to give those views; and
c: have regard to those views.
2: Subsection (1) section 62G(1)(b)
3: The notice of intention must—
a: be published—
i: in the Gazette
ii: in any other manner (if any) that the Commission considers appropriate; and
b: specify the matter to which the recommendation will relate; and
c: specify the time and manner within which members of the public and interested organisations may give their views on that matter to the Commission.
62J: Publication of exemption and reasons
1: The Minister of Energy must make exemptions granted under section 62F
2: The Minister of Energy’s reasons for granting an exemption (including why the exemption is appropriate) must be notified in the Gazette
3: If the Minister of Energy declines to follow a recommendation from the Commission to grant an exemption, the Minister's reasons must be notified in the Gazette
4: However, the Minister of Energy may defer notifying or not notify reasons under this section if he or she is satisfied that it is proper to do so on the ground of commercial confidentiality.
62K: Revocation of exemption
1: The Minister of Energy may, by notice in the Gazette
a: the specified generation plant is no longer required for the purpose for which the exemption was granted; or
b: the specified generation plant has not been, or is not being, operated in accordance with the terms and conditions of the exemption.
2: If an exemption in respect of a specified generation plant is revoked, no person may continue to rely on that exemption for the purposes of section 62D
3: Before recommending the revocation of an exemption, the Commission must—
a: give the person who was granted the exemption notice of its reasons for proposing to make that recommendation and invite that person to give its views on the matter; and
b: give a reasonable opportunity to that person to give those views; and
c: have regard to those views.
4: The Minister of Energy must, when considering whether to revoke an exemption, have regard to any prescribed matters.
62L: Commission may grant temporary emergency exemption
1: The Commission may exempt a person from the restriction in section 62D section 62C(4)
2: The Commission may grant an exemption under subsection (1)
3: An exemption under subsection (1) Gazette
4: An exemption under subsection (1)
5: The Commission may revoke the exemption if it considers that the specified generation plant has not been, or is not being, operated in accordance with the terms and conditions of the exemption. Enforcement
62M: Commission must monitor compliance
1: The Commission must monitor compliance with this Part (including compliance with the terms and conditions of exemptions).
2: The High Court and any District Court each have jurisdiction to restrain any breach or threatened breach of section 62D(1)
3: Section 14 applies, with all necessary modifications, for the purposes of subsection (2)
4: Subsection (2) section 62D Commission may use information collected or provided under regulations or rules
62N: Commission may use information collected or provided under regulations or rules
The Commission may, in connection with the exercise or performance by the Commission of any power or function conferred on it in relation to this Part, use any information that is collected by, or provided to, the Commission under the electricity governance regulations or rules (despite anything in those regulations or rules to the contrary). Regulations
62O: Regulations for purposes of this Part
1: The Governor-General may, by Order in Council made on the recommendation of the Minister of Energy, make regulations for all or any of the following purposes:
a: declaring an electricity generation plant not to be a specified generation plant:
b: prescribing limits for average load factors, greenhouse gas emissions, and start-up times for the purposes of section 62G
c: specifying how those average load factors, greenhouse gas emissions, and start-up times are to be calculated or determined:
d: prescribing matters for the purposes of sections 62C(3) and 62G(1)(c) to (e), (2), and (3)
e: prescribing how applications for exemptions are to be made and dealt with:
f: prescribing matters that the Minister of Energy must have regard to when granting, varying, or revoking an exemption:
g: authorising the Commission to require payment by an applicant for an exemption of any costs incurred by the Commission in connection with the exercise or performance by the Commission of any power or function relating to the application:
h: authorising the Commission to modify the terms and conditions of exemptions (including prescribing when and how the Commission may act and the criteria that the Commission must comply with).
2: A regulation under subsection (1)(a)
3: Before making a recommendation in accordance with subsection (2)
a: publish its intention to do so and invite members of the public and interested organisations to give their views on the matter; and
b: give a reasonable opportunity to those persons to give those views; and
c: have regard to those views.
4: This section does not limit section 169.
5: Regulations
1: Section 169(1)(25) , the Commission, the Board
2: Section 169(1)(26B) section 26 , the Commission, the Board
3: Section 169(1)(30) , the Commission, the Board
6: Party must co-operate with investigations
Section 172KB Part 6A monitoring or enforcing
7: Functions of Commission
Section 172O(1)
ja: make recommendations to the Minister of Energy under Part 6A
jb: monitor compliance with Part 6A
jc: take enforcement action in relation to breaches of Part 6A
jd: grant temporary emergency exemptions under section 62L .