Australian Capital Territory
Utilities (Variation of licence) Notice 2009 (No 2)
Notifiable instrument NI2009–175
made under the  
Utilities Act 2000, section 52 (Public notice of licence decisions) and section 53 (Public access to licences )

1	Name of instrument
This instrument is the Utilities (Variation of licence) Notice 2009 (No 2).
2	Commencement 
This instrument commences the day after it is notified. 
3	Purpose of the instrument
Under section 38 of the Utilities Act 2000, the Independent Competition and Regulatory Commission has varied the licence of ActewAGL Distribution to provide electricity distribution and connection services granted under sections 6 (a) and 6 (b) of the Act to:
•	include requirements imposed under the Electricity Feed-in (Renewable Energy Premium) Act 2008 and the Electricity Feed-in Code (an industry code determined under the Utilities Act); 
•	to change of the name of one of the companies in the Joint Venture Partnership trading as “ActewAGL Distribution” from AGL Gas Company (ACT) Ltd ACN 008 552 663 to Jemena Networks (ACT) Pty Ltd ACN 008 552 663; and 
•	make minor editorial amendments and formatting changes to improve identification of the document.
4	Variation to licences
Schedule 1 to this instrument varies the licence mentioned.

5	Public access to documents
A copy of the licence and the record of the decision relating to the variation of the licence, are available for inspection by members of the public:
•	at the Commission’s offices (located at Level 2, 12 Moore Street, Canberra City, ACT) during ordinary office hours; and
•	on the Commission’s website (www.icrc.act.gov.au).
Copies of these documents can be made at the Commission’s offices.  Electronic copies are available on request.  No charge will apply to the inspection or copying of the documents.

Paul Baxter
Senior Commissioner
Independent Competition and Regulatory Commission
25 March 2009

Schedule 1	Variation of electricity distribution and connection services licence
(see clause 4 of this instrument)

The attached licence varied under this instrument is the Utility Services Licence under the Utilities Act 2000 to provide electricity distribution and connection services granted under sections 6 (a) and 6 (b) of the Act to:

•	ACTEW Distribution Ltd  ACN 073 025 224 and Jemena Networks (ACT) Pty Ltd  ACN 008 552 663 trading as “ActewAGL Distribution”.

INDEPENDENT COMPETITION AND REGULATORY COMMISSION

Licence to provide electricity distribution and connection services under the Utilities Act 2000 (ACT)
granted to
ACTEW Distribution Ltd  ACN 073 025 224
and
Jemena Networks (ACT) Pty Ltd  ACN 008 552 663
trading as
“ActewAGL Distribution”

As varied on 
25 March 2009

Table of Contents

1.	COMMENCEMENT AND TERM	3
1.1	Commencement date	3
1.2	Licence term	3
2.	DICTIONARY	3
3.	LICENCE NOT TO LIMIT LICENSEE	3
4.	AUTHORISATION	3
4.1	Authorised Utility Services	3
4.2	Area of operations	3
4.3	Non-exclusive rights	3
5.	LICENSEE TO COMPLY WITH OBLIGATIONS UNDER THIS LICENCE	3
5.1	Licensee to comply with obligations	3
5.2	Joint and several responsibility	3
6.	COMPLIANCE WITH ALL APPLICABLE LAWS	3
6.1	Licensee to comply	3
6.2	Licensee to comply with the Act	3
6.3	Severance of any part of the licence does not affect continued operation of remainder of licence	3
7.	LICENCE COMPLIANCE	3
7.1	Licensee to monitor compliance	3
7.2	Licensee to notify ICRC of any material breaches	3
7.3	Licensee to provide statement on any non-compliance	3
7.4	Licensee to report annually	3
7.5	Availability of annual report	3
7.6	Operation and compliance audits	3
8.	TECHNICAL AND PRUDENTIAL CRITERIA	3
8.1	Requirement to continue to meet criteria	3
8.2	Licensee to advise ICRC of financial and technical capacities	3
9.	CONTRACTING OUT	3
9.1	Licensee may contract out	3
9.2	Licensee bound by obligations under licence	3
10.	CHARGE AND ASSIGNMENT	3
10.1	Charge	3
10.2	Assignment	3
10.3	Assignment generally	3
10.4	Changes in Licensee’s shareholdings	3
10.5	Changes in ownership	3
11.	RISK MANAGEMENT	3
11.1	ICRC may request information	3
11.2	Information that may be requested	3
11.3	Licensee must provide information	3
11.4	Licensee to indemnify ICRC	3
12.	OTHER RESTRICTIONS ON LICENSEE	3
12.1	Restrictions on Licensee	3
12.2	Suspension of licence	3
12.3	Licensee to comply with requirements of suspension notice	3
13.	CONSENTS	3
14.	INSPECTION OF RECORDS	3
14.1	Licensee to keep records	3
14.2	Licensee to provide copies of records	3
14.3	Licensee to comply with all requests	3
15.	ANNUAL LICENCE FEE	3
16.	REVIEW OF LICENSEE’S OBLIGATIONS	3
17.	TRANSFER, SURRENDER OR REVOCATION OF LICENCE	3
18.	VARIATION OF LICENCE	3
19.	COMMUNICATION	3
19.1	Communication to be in writing	3
19.2	Address for service	3
19.3	ICRC to be advised of contact details	3
19.4	Deemed delivery	3
20.	WAIVER	3
20.1	Non exercise of power or right	3
20.2	Exercise of power or right	3
20.3	Waiver must be in writing	3
20.4	Limit on application	3
REFERENCE SCHEDULE	3
SCHEDULE 1	ADDITIONAL UTILITY SERVICE LICENCE OBLIGATIONS - ELECTRICITY DISTRIBUTION AND CONNECTION SERVICES	3
1.	EMERGENCY TELEPHONE SERVICE	3
2.	ENVIRONMENTAL REQUIREMENTS	3
2.1	Program to minimise network losses	3
2.2	Annual reporting requirements	3
3.	Requirements under the Electricity FEED-IN SCHEME	3
3.1	Licensee must comply with the Electricity Feed-in (Renewable Energy Premium) Act 2008 (ACT)	3
3.2	Reporting in relation to the Electricity Feed-in Code	3
SCHEDULE 2:	VARIATIONS TO THE LICENCE	3
DICTIONARY	3

Licence to provide Utility Services granted on 29 June 2001.

BY

Independent Competition and Regulatory Commission, a body corporate established under the Independent Competition and Regulatory Commission Act 1997 (ACT) (“ICRC”) pursuant to the Utilities Act 2000 (ACT)

TO

The Person specified in Item 1 of the Reference Schedule (“Licensee”).

ICRC has determined to grant a licence under section 37 of the Utilities Act 2000 (ACT) in respect of the utility services defined under section 6 (a) and section 6 (b) of the Act on the conditions set out in this licence.
1.	COMMENCEMENT AND TERM
1.1	Commencement date
This licence will take effect from 1 July 2001.
1.2	Licence term
This licence will remain in force until it is transferred, surrendered or revoked.
2.	DICTIONARY
The dictionary at the end of this licence is part of this licence.
3.	LICENCE NOT TO LIMIT LICENSEE
This licence does not and is not to be taken to:
(1)	limit or prevent the Licensee from doing anything that it may lawfully do without the benefit of this licence; or
(2)	override or derogate from a requirement under any other Law.
4.	AUTHORISATION
4.1	Authorised Utility Services
This licence confers on the Licensee the right to provide the Authorised Utility Services referred to in Item 3 of the Reference Schedule.
4.2	Area of operations
The Licensee may exercise the rights conferred on it in any part of the Territory.
4.3	Non-exclusive rights
The rights conferred by this licence on the Licensee are not exclusive.
5.	LICENSEE TO COMPLY WITH OBLIGATIONS UNDER THIS LICENCE
5.1	Licensee to comply with obligations
The Licensee must, at all times during the term of this licence, provide the Authorised Utility Services in accordance with the obligations imposed upon it by this licence, including the obligations set out in the schedule. 
5.2	Joint and several responsibility
Where the Licensee comprises two or more legal entities, each entity is jointly and severally liable for the Licensee’s compliance with the terms of this licence.
6.	COMPLIANCE WITH ALL APPLICABLE LAWS
6.1	Licensee to comply
The Licensee must comply with all Laws for the time being in force in the Territory and applicable to any services provided by the Licensee in the Territory.
6.2	Licensee to comply with the Act
Without limiting the generality of clause 6.1, in providing the Authorised Utility Services the Licensee must comply with:
(1)	any requirement of the Act;
(2)	relevant Industry Codes including the performance standards (if any) prescribed under those codes;
(3)	relevant Technical Codes including the performance standards (if any) prescribed under those codes; 
(4)	any direction given to the Licensee by ICRC or the Chief Executive under the Act; and
(5)	any applicable ring fencing requirements.
6.3	Severance of any part of the licence does not affect continued operation of remainder of licence
If any part of this licence is prohibited, void, voidable, illegal or unenforceable, then that part is severed from the licence but without affecting the continued operation of the remainder of the licence.
7.	LICENCE COMPLIANCE 
7.1	Licensee to monitor compliance
The Licensee must monitor its compliance with this licence and any Law or such other code of practice, directions and guidelines applicable to the Licensee and to any of the other services to be rendered by the Licensee that it is required to comply with under clause 6.2. 
7.2	Licensee to notify ICRC of any material breaches
If the Licensee becomes aware of a material breach of this licence and any Law or such other code of practice, directions and guidelines applicable to the Licensee and to any of the other services to be rendered by the Licensee that it is required to comply with under clause 6.2, the Licensee must notify ICRC of the breach as soon as practicable.
7.3	Licensee to provide statement on any non-compliance
If the Licensee has not complied with any of its obligations under clause 6.2, the Licensee must identify those obligations and provide a brief statement to ICRC that explains the circumstances of, and reasons for the non-compliance, consequences of the non-compliance (including any penalties imposed) and outlines measures that the Licensee will put in place to rectify that non-compliance.
7.4	Licensee to report annually
The Licensee must report to ICRC on its obligations under clause 6.2, and in relation to any other reporting requirements the Licensee has under the Act, including information which ICRC requires to be reported against pursuant to the Act, by 1 October every year during the term of this Licence.
7.5	Availability of annual report
The Licensee must ensure that a summary of the annual report required under clause 7.4 is publicly available.
7.6	Operation and compliance audits
(1)	The Licensee must, from time to time, undertake audits of the services and operations authorised by this licence and of its compliance with its obligations under this licence and any Law, code of practice, directions and guidelines that it is required to comply with under clause 6.2.
(2)	The audits must be conducted by an independent expert or auditor nominated by the Licensee and approved by ICRC.
(3)	The audit results must be reported to ICRC in a manner (including as to form and substance) approved by ICRC.
8.	TECHNICAL AND PRUDENTIAL CRITERIA
8.1	Requirement to continue to meet criteria
The Licensee must, throughout the term of this licence, continue to satisfy the same technical and prudential criteria that it was required to meet as a condition of the grant of the licence under the Act. 
8.2	Licensee to advise ICRC of financial and technical capacities
The Licensee must, from time to time as reasonably required by ICRC, provide ICRC with:
(1)	details of the Licensee’s financial, technical and other capacity (including the capacity of its major contracted providers) to continue to provide the services and to conduct the operations authorised by this licence; and
(2)	such other information as ICRC requires.
9.	CONTRACTING OUT
9.1	Licensee may contract out
The Licensee may contract out the provision, construction, operation, management or maintenance of any of the systems or services that are the subject of this licence. 
9.2	Licensee bound by obligations under licence
Contracting out does not relieve the Licensee of its responsibility to comply with its obligations under this licence.
10.	CHARGE AND ASSIGNMENT
10.1	Charge
The Licensee must not grant a charge over its interest in this licence without the prior written consent of ICRC.
10.2	Assignment
The Licensee must not assign its interest under this Licence without the prior written consent of ICRC.
10.3	Assignment generally
An application by a Licensee to ICRC for consent to an assignment must demonstrate, to the reasonable satisfaction of ICRC, that the proposed assignee is a respectable, responsible, and solvent Person who is capable of performing all obligations in this licence on the part of the Licensee.
10.4	Changes in Licensee’s shareholdings
A change in the shareholding in the Licensee, at any one time, resulting in the transfer of more than 50 percent of the shares in the Licensee to a third party will be deemed to be an assignment for the purposes of clause 10.2. ICRC’s consent to assignment in these circumstances will not be unreasonably withheld.
10.5	Changes in ownership
A Licensee must keep the ICRC informed of all relevant changes in the ownership of the Licensee.

11.	RISK MANAGEMENT
11.1	ICRC may request information
ICRC may, from time to time, request details of the Licensee’s risk management strategy. 
11.2	Information that may be requested
The information requested by ICRC may include information about the Licensee’s levels of insurance cover for the protection of:
(1)	persons affected by the activities or operations of the Licensee (including customers, owners or occupiers of land and members of the general public) from injury or harm; and
(2)	the property of those persons against damage or loss.
11.3	Licensee must provide information
The Licensee must provide the details requested under clause 11.1.
11.4	Licensee to indemnify ICRC
The Licensee will indemnify ICRC, the Territory and their respective employees and agents (“those indemnified”) against liability in respect of all claims and for all loss, damage or injury to persons or property caused by the Licensee, its employees, agents or contractors in connection with services it provides pursuant to this licence (and those it purports to deliver under this licence). The amount of all claims, damage, costs and expenses which may be paid, suffered or incurred by those indemnified in respect of any such claim, loss, damage or injury will be made good at the Licensee’s expense, except to the extent that ICRC or the Territory caused the relevant loss, damage or injury.
12.	OTHER RESTRICTIONS ON LICENSEE
12.1	Restrictions on Licensee
A Licensee must first consult with ICRC if the Licensee:
(1)	intends to dispose of any major asset;
(2)	intends to enter into any major transaction;
(3)	is granted a security interest or a lien over the Licensee’s network facilities; or
(4)	intends to engage in any other business activity;
that is likely to materially adversely affect the Licensee’s ability to:
(5)	provide the Authorised Utility Services; or
(6)	comply with its obligations under:
(a)	the Act,
(b)	any Law,
(c)	this licence, or
(d)	the customer contract.
12.2	Suspension of licence
If during the term of this licence the Licensee breaches a licence condition in circumstances whereby ICRC determines that the breach is not serious and is remediable by the Licensee in a timely manner, ICRC may suspend this licence, or suspend the Licensee’s conduct of specified services or operations under this licence, until the breach is remedied.
12.3	Licensee to comply with requirements of suspension notice
In the event of ICRC notifying the Licensee that this licence is suspended, or that the Licensee’s  provision of any specified services or operations under this licence are suspended, the Licensee must comply with any requirements under the suspension notice for the purpose of remedying a specified breach of this licence in a timely manner.
13.	CONSENTS
The Licensee must obtain and keep current all consents necessary for it to lawfully provide the Authorised Utility Services.
14.	INSPECTION OF RECORDS
14.1	Licensee to keep records
The Licensee must keep, or cause to be kept, comprehensive records in accordance with ICRC's requirements under the Act.
14.2	Licensee to provide copies of records
ICRC’s officers and agents may request the Licensee to provide copies of records referred to in clause 14.
14.3	Licensee to comply with all requests
The Licensee must comply with all reasonable requests by ICRC for copies of the records.
15.	ANNUAL LICENCE FEE
The Licensee must pay to ICRC an annual licence fee determined in accordance with the Act. The payment of the fee is to be made in accordance with ICRC’s determination. 
16.	REVIEW OF LICENSEE’S OBLIGATIONS 
ICRC may review this licence at any time in accordance with section 46 of the Act.
17.	TRANSFER, SURRENDER OR REVOCATION OF LICENCE
This licence may only be transferred, surrendered or revoked in accordance with the Act.
18.	VARIATION OF LICENCE
The terms of this licence may be varied by ICRC in accordance with section 38 of the Act.
19.	COMMUNICATION
19.1	Communication to be in writing
A communication under this licence is to be in writing and:
(1)	delivered by hand at the address for service of the addressee;
(2)	sent by post to the address for service of the addressee; or
(3)	sent by facsimile to the facsimile number of the addressee.
19.2	Address for service
The Licensee’s service address is the address referred to in Item 4 of the Reference Schedule or another address subsequently notified to ICRC by the Licensee.  
19.3	ICRC to be advised of contact details
The Licensee must notify the ICRC of a change in address in Item 4 and any other contact details within 10 business days of the change.
19.4	Deemed delivery
Where a notice or other communication to be given under this licence is delivered or sent, it is deemed given to, and received by, the addressee:
(1)	if hand delivered, upon delivery;
(2)	if mailed to an address, two business days after the date of posting; or
(3)	if sent by facsimile before 4:00 pm on a business day at the place of receipt, on the day it is sent and otherwise on the next business day at the place of receipt.
20.	WAIVER
20.1	Non exercise of power or right
A failure or delay to exercise a power or right arising under this licence by ICRC or the Licensee does not waive that power or right.

20.2	Exercise of power or right
The exercise of a power or right arising under this Licence does not preclude either its exercise in the future or the exercise of any other power or right.
20.3	Waiver must be in writing
A waiver by the Licensee or the ICRC of a power or right arising under this licence is not effective unless it is in writing.
20.4	Limit on application
A waiver of a power or right arising under this licence is effective only with respect to the specific instance to which it relates and for the specific purpose for which it is given.

REFERENCE SCHEDULE

Item 1			Licensee
				
				ACTEW Distribution Ltd ACN 073 025 224
				and Jemena Networks (ACT) Pty Ltd ACN 008 552 663
				trading as “ActewAGL Distribution”

Item 2			Commencement date

				1 July 2001

Item 3			Authorised Utility Services

(a)	electricity distribution services under section 6 (a) of the Act
(b)	electricity connection services under section 6 (b) of the Act; and
(c)	the action required by the distributor under section 6 (2) of the Electricity Feed-in (Renewable Energy Premium) Act 2008 (ACT).

Item 4			Address for Service of Licensee

GPO Box 366
Canberra ACT 2601

SCHEDULE 1	ADDITIONAL UTILITY SERVICE LICENCE OBLIGATIONS - ELECTRICITY DISTRIBUTION AND CONNECTION SERVICES
1.	EMERGENCY TELEPHONE SERVICE
The Licensee must have a 24 hour emergency telephone service that is accessible to the public.  The telephone service must be:
(1)	accessible every day of the year; and
(2)	able to receive reports of network emergencies.
2.	ENVIRONMENTAL REQUIREMENTS
2.1	Program to minimise network losses
The Licensee must develop, and implement an ongoing program to cost effectively minimise losses of electrical power in the Licensee’s electricity network.
2.2	Annual reporting requirements
The Licensee must report annually to ICRC on its implementation of measures to reduce:
(1)	network losses; and
(2)	the greenhouse gas emissions attributable to its network operations.
3.	Requirements under the Electricity FEED-IN SCHEME
3.1	Licensee must comply with the Electricity Feed-in (Renewable Energy Premium) Act 2008 (ACT)
The Licensee must comply with the Electricity Feed-in (Renewable Energy Premium) Act 2008 (ACT) and statutory instruments in force under that Act.
3.2	Reporting in relation to the Electricity Feed-in Code
The Licensee must report to ICRC in accordance with the requirements set out in the Electricity Feed-in Code, an Industry Code determined under the Act.

SCHEDULE 2:	VARIATIONS TO THE LICENCE

Date	Clause	Reason for variation	
15 August 2002	15	Clause 15.2 deleted and clause 15.1 renumbered as 15 and amended to the effect that the licensee must pay to ICRC an annual licence fee determined in accordance with section 45 of the Utilities Act and that the payment of the fee be made in accordance with ICRC’s determination.
NI2002–276	
25 March 2009	Title Page
Reference Schedule
Schedule 1	To:
•	reflect the change of company name from AGL Gas Company (ACT) Ltd ACN 008 552 663 to Jemena Networks (ACT) Pty Ltd ACN 008 552 663
•	give effect to the provisions of the Electricity Feed-in (Renewable Energy Premium) Act 2008
•	to make minor editorial amendments and formatting changes.
NI2009–175	

SIGNED for and on behalf of				)
THE INDEPENDENT COMPETITION AND		)
REGULATORY COMMISSION by 			)
PAUL BAXTER in the presence of:			)
	. . . . . . . . . . . . . . . . . . . . . . . . . . ..

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Signature of Witness

. . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Name of Witness (BLOCK LETTERS)

DICTIONARY

In this licence, unless the contrary intention appears:
(1)	“Act” means the Utilities Act 2000 (ACT);
(2)	“assign” includes assign, transfer, mortgage or otherwise deal with an interest but does not include the granting of a charge over an interest;
(3)	“Authorised Utility Services” means the Utility Services referred to in the Reference Schedule that the Licensee is authorised to provide under clause 4.1;
(4)	“business day” means a day, other than a Saturday, Sunday or public holiday in the Territory;
(5)	“Chief Executive” means the Chief Executive responsible for administering Part 5 of the Act;
(6)	“consent” includes any licence, permit, authority or consent issued or given by an agency or a Minister;
(7)	“customer” has the same meaning as in the Act;
(8)	“customer contract” has the same meaning as in the Act;
(9)	“electricity network” has the same meaning as in the Act;
(10)	“gas distribution network” has the same meaning as in the Act;
(11)	“gas transmission network” has the same meaning as in the Act;
(12)	“ICRC” means the Independent Competition and Regulatory Commission established under section 5 of the Independent Competition and Regulatory Commission Act 1997 (ACT);
(13)	“Industry Code” means a code approved or determined by ICRC under Part 4 of the Act;
(14)	“Item” means the relevant Item in the Reference Schedule;
(15)	“Law” means any statute, regulation, rule, proclamation, order, ordinance or by-law whether present or future and whether Commonwealth, Territory or otherwise (in this subclause referred to as “statutory provision”) and includes:
(a)	any such statutory provision as amended or re-enacted from time to time; and 
(b)	any statute, regulation, rule, proclamation, order, ordinance or by-law enacted in replacement of any statutory provision;
(16)	“Licensee” means the Person referred to in Item 1 of the Reference Schedule;
(17)	 “network facilities” means:
(a)	any part of the infrastructure of a utility network; or
(b)	any powerline, pole or wire, any water, sewerage or gas main or pipe, or any equipment, apparatus, structure or other thing used or for use, in connection with the provision of a utility service;
(18)	“Person” includes a natural person, a firm, an unincorporated association, a Territory agency, a corporation or any other body corporate;
(19)	“Reference Schedule” means the Reference Schedule to this licence;
(20)	“security interest” means:
(a)	a mortgage, pledge, lien, charge, assignment, hypothecation, secured interest, title retention arrangement, preferential right, trust arrangement or other arrangement (including any set off or “flawed asset” arrangement) having the same or equivalent or commercial effect as a grant of security; or
(b)	an agreement to create or give any arrangement referred to above;
(21)	“sewerage network” has the same meaning as in the Act;
(22)	“Technical Code” means a code approved or determined by the Minister under Part 5 of the Act;
(23)	“Territory” means:
(a)	when used in a geographical sense, the Australian Capital Territory; and
(b)	when used in any other sense, the body politic established by section 7 of the Australian Capital Territory (Self-Government) Act 1988 (C’th);
(24)	“utility network” means:
(a)	an electricity network, 
(b)	a gas transmission network, 
(c)	a gas distribution network, 
(d)	a sewerage network,
(e)	or a water network;
(25)	“utility services” has the same meaning as in the Act;
(26)	“water network” has the same meaning as in the Act.