(1) In Parts 1 to 5, unless the context otherwise requires,—

(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 and 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.

(1) Where section 20 uses the term business A, it refers to a business that would have to have its ownership separated under sections 17 to 17G, and the term business B then refers to a business from which business A must be separated under those sections.

(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, and the term business B then refers to a business that is required to be carried out in another company under that section.

(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.

(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 in respect of a business that does any of those things; or

  • (iii) has material influence over a business that does any of those things.

(2) Involvement has a corresponding meaning.

(1) This section applies for the purposes of calculating the caps and thresholds referred to in the following sections:

• (a) section 17A (connected generation cap):

• (b) section 17C (connected customers selling cap):

• (c) section 17D (threshold for corporate separation and arm's-length rules).

(2) A person is involved in any connected generation only in proportion to the extent of the person’s interest in the connected generation.

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.

(1) For the purposes of this Act, a control right means a voting right attaching to a voting security.

(2) A person has a control right under this Act if the person would have a relevant interest, under sections 5 to 5B of the Securities Markets Act 1988, in the voting securities that confer that right,—

• (a) if voting security, in relation to a body, meant a security of the body which confers a right to vote at meetings of members (whether or not there is any restriction or limitation on the number of votes that may be cast by or on behalf of the holder of the security); and includes a security which, in accordance with the terms of the security, is convertible into a security of that kind; and

• (b) if references in those sections to a number or percentage of voting securities were a reference to the number or percentage of the votes conferred by those securities.

(1) For the purposes of this Act, a person has an equity return right in relation to a business if the person has a right or entitlement or expectancy to receive equity returns, directly or indirectly, of the business.

(2) Equity returns means—

• (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:

(1) Without limiting the ordinary meaning of the expression material influence, the following people are deemed to have material influence over an electricity business:

• (a) a director or manager of a person that carries on the business:

• (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, then that other person is deemed also to have material influence over the business, and so on.

(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), an associate of another person, provided those associates act in accordance with the arm’s-length rules (with all necessary modifications) in respect of the business.

(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.

(1) For the purposes of this Act, person A is an associate of person B (and vice versa) if—

• (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) of the Securities Markets Act 1988); or

  • (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, child, or parent of person B; or

• (c) [Repealed]

• (d) person A is a partner, to whom the Partnership Act 1908 applies, of person B; or

• (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); or

• (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.

(1) Any question under Parts 1 to 5 is to be determined according to the nature, substance, and economic effect of the interest or relationship or other facts, and independently of form.

(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.

This Act extends to the acquisition or having of interests in electricity businesses in New Zealand by persons outside New Zealand.

(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.

(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.

(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.

The following connected generation is not counted for the purpose of section 17A (but is counted for the purposes of section 17D, which relates to the threshold for corporate separation and arm’s-length rules):

• (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.

(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 is the sum of the total annual nominal MWh capacity of the following generation (calculated as if the generation were operated at total capacity (determined according to nameplate or nameplates) for 24 hours for 365 days per annum):

(3) The Commission may not determine that any generation should be treated as being within more than 1 local network area.

A business is a connected electricity business if the business, or a person involved in the business, has an involvement in more than 10 MW (determined according to nameplate or nameplates) of connected generation (including any connected generation referred to in section 17B and any generation that the Commission has determined under section 17C(2) should be treated as being within a local network area).

(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.

(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.

(1) In this section, unless the context otherwise requires, Transpower means Transpower New Zealand Limited and any subsidiary of or successor to that company.

(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.

(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 a stock exchange; or

• (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; or

• (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; or

• (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 (extensions) and to any regulations made under this Act.

(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 in subsection (2)(d) means person B exceeds the overlap threshold with person A as if that term had the meaning set out in section 3, but applied also to person B and as if all references in that definition to non-specific interests in person A were references to interests in person B.

(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 exists with the trust-like entity when the members of the trust-like entity substantially comprise people or organisations in the community of the local authority.

(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 is read as if its references to the electricity business were references to the trust-like entity.

(9) For the purposes of this section, trust-like entity means any person in which non-specific interests are held.

(10) This section is subject to section 34 (which relates to companies with direct ownership).

(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.

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.

(1) It is a defence to any proceedings under this Part for contravention of Part 2 that—

• (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 or 17E (corporate separation and arm’s-length rules) or 17F (use-of-systems agreements).

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 (order divestiture of assets):

• (e) proceedings under section 55 (penalty/commercial gain):

• (f) applications under section 56 (give directions, re-open agreements):

• (g) applications for orders under section 89 of the Commerce Act 1986 (as applied to this Act by section 58 of this Act).

In accordance with this Part, the District Court may hear and determine proceedings for offences against sections 100 and 103 of the Commerce Act 1986 (as applied to this Act by section 58 of this Act).

(1) If the court is satisfied on the application of the Commission or any other person that a person has contravened Part 2 or section 68, the court may order the person to pay to the Crown a pecuniary penalty that the court determines to be appropriate.

(2) The maximum amount of the pecuniary penalty is the same as may from time to time be specified in section 80 of the Commerce Act 1986, in respect of each act or omission.

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 or section 68, the court, by order, may do all or any of the following things:

• (a) grant an injunction restraining any person from engaging in conduct that constitutes or would constitute such a 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.

(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 or section 68.

(2) The amount of damages is the same as the amount that applies from time to time under section 82 of the Commerce Act 1986.

(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 in respect of any involvement or has been found in any other proceedings under this Part to have contravened Part 2 in that respect, it may, by order,—

• (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); or

• (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) is void and of no effect; or

• (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 or 17E (corporate separation and arm’s-length rules) or 17F (use-of-systems agreements).

(1) The court may order a person who is found to have contravened Part 2 or section 68 to pay an amount not exceeding 3 times the value of any commercial gain resulting from the contravention if the court is satisfied that the contravention occurred in the course of producing a commercial gain.

(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.

(1) If the court is satisfied, on the application of the Commission or any other person, that a person has contravened Part 2 or section 68, the court may give directions ordering a person or persons in contravention to renegotiate any agreement or agreements that contravene, or give rise to a contravention of, this Act, on such terms as the court specifies.

(2) If directions under subsection (1) are not complied with to the satisfaction of the court, the court may—

• (a) 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.

(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 or section 68, proceedings may be instituted under this Act against that person in relation to the contravention of any 1 or more of the provisions; but no person is liable to more than 1 pecuniary penalty under this Part in respect of the same conduct.

The following provisions of the Commerce Act 1986 apply with necessary modifications:

• (a) sections 77 and 78 (lay members):

• (b) section 79 (evidence not otherwise admissible):

• (c) section 88 (general provisions relating to granting of injunctions):

• (ca) section 88A (when undertaking as to damages not required by Commission):

• (d) section 89 (other orders):

• (e) section 90 (conduct by servants or agents):

• (f) section 98 (Commission may require person to supply information or documents or give evidence):

• (g) section 98A (power to search):

• (h) sections 98B to 98G (relating to warrants, etc):

• (i) section 99 (powers of Commission to take evidence):

• (j) section 100 (powers of Commission to prohibit disclosure of information, documents, and evidence):

• (k) section 100A (Commission may state case for opinion of High Court):

• (l) sections 101 and 102 (notices):

• (m) section 103 (offences):

• (n) section 104 (determinations of Commission):

• (o) [Repealed]

• (p) section 106 (proceedings privileged):

• (q) section 106A (judicial notice):

• (r) section 109 (Commission may prescribe forms).

Proceedings brought under this Part are in addition to any proceedings brought under any other Act.

No person may at any time do anything to defeat the purposes of Parts 1 to 5.

(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.

(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) [Repealed]

(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 of the Securities Markets Act 1988, who may apply for the orders, and related matters.

(3) Subsection (2) does not limit the generality of section 87(2)(f).

(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.

(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.

(1) The Commission may, for the purposes of this Act, in its discretion, by notice in the Gazette, bring within this Act a business or involvement or interest that is disregarded under 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 no longer applies.

(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 notice).

(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.

(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, exempt—

• (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) [Repealed]

(3) The exemption takes effect from the date specified in the exemption (which may not be earlier than the date of the Gazette notice).

(4) The 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.

Except as provided in section 83 (not interconnected under Commerce Act 1986), nothing in this Act overrides or limits the provisions of the Commerce Act 1986.

(1) For the purposes of Part 2 of the Commerce Act 1986, businesses to which sections 17D and 17E (corporate separation and arm’s-length rules) apply are deemed to be separate bodies corporate that are not interconnected, despite the fact that they may have a common owner.

(2) Subsection (1) applies notwithstanding section 2(7) of the Commerce Act 1986.

(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.

(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) and specifying any conditions that apply:

• (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) [Repealed]

• (b) setting out the method of determining persons or amounts for the purpose of section 10(4) (percentage entitlements to equity return rights not readily ascertainable):

• (c) [Repealed]

• (d) [Repealed]

• (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 (non-specific interests rule):

• (f) providing for the disclosure of involvements in businesses under 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 schedule, or otherwise amending that schedule for the purpose of ensuring that the purposes of this Act are not defeated:

• (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.

(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.

(1) Price restraint imposed by or pursuant to regulations made under section 88 may specify the manner in which the charges for line function services to domestic premises or rural consumers are to be restrained, and may, in particular, but without limiting the generality of 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, any controls imposed by or pursuant to any power conferred by any of paragraphs (a) to (c) of subsection (1) may be expressed to operate by reference to the charge lawfully being charged in respect of the line function services on any date specified for the purpose in the regulations, being the date of the commencement of the regulations or any other date, whether before or after the date of the commencement of the regulations, but not being earlier than 1 January 1998.

For the purposes of section 88, the term domestic premises means any premises that are used or intended for occupation by any person principally as a place of residence; but does not include—

• (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.

(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, in the same manner as fines are recoverable.

(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.

Nothing in this Part limits or affects Part 4 of the Commerce Act 1986 (which relates to the control of prices) or any other enactment relating to price restraint or price control.

Terms used in this Part are to be interpreted in accordance with the Electricity Act 1992.