Information on applying for a Code exemption

• What is an exemption?
• What laws can the Authority give an exception from? 
• Who can apply?
• When is an exemption appropriate? 
• Do you need a lawyer to apply for an exemption? 
• How do I apply for an exemption?
• What is required in an application for an exemption? 
• How long does it take?
• What steps are involved?
• How do we find out the outcome of our application for exemption? 
• Where can we get a copy of the notice?

What is an exemption?

An exemption provides a release from an obligation in the Code or from an obligation in a specified part of the Act. The Authority may grant an individual exemption on any terms or conditions that the Authority reasonably considers are necessary.

What laws can the Authority give an exemption from?

You may apply to the Authority for an exemption from compliance with any provision of the Code. Exemptions can also be sought from the obligation to register as a participant, under section 10 of the Act, or from compliance with Part 3 of the Act “Separation of distribution from certain generation and retailing”, under section 90 of the Act. This page of our website only provides information about exemptions from compliance with provisions of the Code.

Exemptions are approved on a purely case by case basis. Approval of an exemption does not create a precedent for future applications.

Who can apply?

Any participant can apply for an exemption. The Act sets out who is a participant.

When is an exemption appropriate?

Participants must make their own assessment of whether an exemption is necessary and appropriate. The Authority does not generally offer advice on whether an exemption is potentially appropriate in a participant's circumstances. The Authority asks for the applicant's reasons for making the application.

Once you make an application, Authority staff may discuss the circumstances with you, and may identify other options that are available to meet your compliance obligations.

The Authority will then consider the application once all relevant information has been received.

Under the Act there are two parts to the test that must be met before the Authority may grant an exemption. Section 11(2) of the Act requires the Authority to be satisfied that —

(a)      it is not necessary, for the purpose of achieving the Authority’s objective under section 15, for the participant to comply with the Code or the specific provisions of the Code; and

(b)      exempting the participant from the requirement to comply with the Code or the specific provisions of the Code would better achieve the Authority’s objectives than requiring compliance.

Do I need a lawyer to apply for an exemption?

Compliance with the Code involves issues about the interpretation and application of the law. Where these kinds of complexities arise, we recommend that you seek legal advice before making an application. The Authority expects that in most cases the reasons underlying an application will be practical ones. In those cases, legal advice may not be necessary. You may involve a lawyer if you choose.

How do I apply for an exemption?

Your application should be in writing on the application form provided below. This form should be emailed to compliance@ea.govt.nz.

We will acknowledge receipt of your application. If you do not receive this acknowledgement, please contact us on 04 460 8860 or compliance@ea.govt.nz.  

What is required in an application for an exemption?

The application form sets out the format for an exemption application. We recommend that you follow the format and provide as much information as possible to avoid delays that may be caused by an incomplete application and to ensure we have the appropriate information to assess your application.

How long does it take?

The time it takes to process an application depends on whether any difficult questions arise. We encourage you to apply as soon as you become aware of the need for an exemption. Processing time depends on the nature of the application and the resources available within the Authority when you apply. If your exemption is granted, time must be allowed for publishing it in the Gazette as an exemption does not come into force until at least the day after it has been notified in the Gazette and cannot be applied retrospectively.

The table below sets out the deadlines for exemption applications and the earliest from which an exemption, if approved, can apply. We will use reasonable endeavours to process your application as soon as possible, but there is no guarantee that an application submitted will make the relevant Compliance Committee meeting, especially if there is incomplete information, the requested exemption may impact on other participants, or there are complex Code provisions to be assessed. The Compliance Committee may choose to refer the decision to the Authority Board, if so, additional time must be allowed for this.

As exemptions cannot be backdated, nor can they excuse a breach of the Code, please ensure you make your application well before you need the exemption, and ensure you can comply with your obligations if your application is declined. All exemptions are assessed on an individual basis. Submission of an application does not guarantee it will be approved by the Authority.

If your application is urgent, please provide a timeframe within which

(a) a decision is requested, and

(b) any exemption granted needs to be Gazetted.

Please also provide your reasons for wanting us to consider your request urgently. There is no guarantee that urgent applications can be processed more quickly than the dates in the below table. Authority staff will use best endeavours to assess an urgent application.

What steps are involved?

Application considered by staff

Your application is considered by Authority staff, who will prepare a recommendation for Members of the Authority to consider. You may be asked to provide further information at this stage. This process is sped up when the applicant provides quality information at the time of application, and responds to queries promptly.

Consideration by Compliance Committee and/or the Authority Board

When the recommendation is finalised, it is put to the Compliance Committee for its consideration. If the Compliance Committee considers the exemption application to be significant, it will refer it to the Authority Board for its consideration.

Notice drafted by staff

If the application is approved, Authority staff prepare the exemption Gazette notice.

Notification in the New Zealand Gazette

The Authority must give notice of the exemption in the Gazette. An exemption does not come into force until at least the day after it has been notified in the Gazette.

The Authority will also publish the exemptions that have been approved on its website.

How do we find out the outcome of our application for exemption?

Authority staff will endeavour to advise you as soon as they know if your application for exemption has been granted or not. You should check the Gazette before relying on an exemption notice.

Where can we get a copy of the notice?

Gazette notices are available on-line from the Department of Internal Affairs.  The website offers a searchable database of all Gazette notices (external link)(external link).

The Authority also publishes extracts of the gazette notice on its website as soon as practical after it is gazetted.

Exemption Policy Note

The contents of applications for exemption are subject to the Official Information Act 1982 and the Privacy Act 2020. If a request is received under those Acts for information contained in an application, the Authority is required to consider release of the application, in whole or in part, in terms of the criteria set out in these Acts. In providing your application, please advise if you have any objection to the release of any information contained in your application, and, if you do object, the parts of your application you would wish withheld, and the grounds for withholding. In addition, information in applications will be discussed with the market operation service providers as appropriate. In providing your application, please advise if you have any objections to the release of any information contained in your application to market operation service providers and the reasons for those objections.