44AActing appointments

44A  Acting appointments   The Minister may appoint a person who is engaged under the Public Service Act 1999 to act as the Registrar or as a Deputy Registrar during any period, or during all periods, when:  (a) the Registrar or that Deputy Registrar, as the case may be, is absent from duty or from Australia or is, for any other reason, unable to perform the duties and functions of his or her office; or  (b) there is a vacancy in the office of Registrar or in that office of Deputy Registrar, as the case may be. Part IIIAA—The Australian Energy Regulator (AER) 44AB  Definitions   In this Part, unless the contrary intention appears: Australian Energy Market Agreement means the agreement, as amended from time to time:  (a) that relates to energy; and  (b) that is between the Commonwealth, all of the States, the Australian Capital Territory and the Northern Territory; and  (c) that is first made in 2004; and  (d) that agrees to the establishment of the AER and the AEMC. full‑time AER member means an AER member appointed on a full‑time basis. part‑time AER member means an AER member appointed on a part‑time basis. 44AC  This Part binds the Crown   This Part binds the Crown in each of its capacities. 44AD  Extra‑territorial operation   It is the intention of the Parliament that the operation of this Part should, as far as possible, include operation in relation to the following:  (a) things situated in or outside Australia;  (b) acts, transactions and matters done, entered into or occurring in or outside Australia;  (c) things, acts, transactions and matters (wherever situated, done, entered into or occurring) that would, apart from this Act, be governed or otherwise affected by the law of a State, a Territory or a foreign country. Division 2—Establishment of the AER 44AE  Establishment of the AER  (1) The Australian Energy Regulator (the AER) is established by this section.  (2) The AER:  (a) is a body corporate with perpetual succession; and  (b) must have a common seal; and  (c) may acquire, hold and dispose of real and personal property; and  (d) may sue and be sued in its corporate name.  (3) However, the AER is taken, for the purposes of the finance law (within the meaning of the Public Governance, Performance and Accountability Act 2013):  (a) not to be a corporate Commonwealth entity; and  (b) to be a part of the Commonwealth, and a part of the Commission; and  (c) not to be a body corporate. 44AF  AER to hold money and property on behalf of the Commonwealth   The AER holds any money or property for and on behalf of the Commonwealth. 44AG  Constitution of the AER   The AER consists of:  (a) 2 Commonwealth AER members, appointed in accordance with section 44AM; and  (b) 3 State/Territory AER members, appointed in accordance with section 44AP. Division 3—Functions and powers of the AER 44AH  Commonwealth functions  (1) The AER has any functions:  (a) conferred under a law of the Commonwealth; or  (b) prescribed by regulations made under this Act. Note: The AER may have functions under the Australian Energy Market Act 2004.  (2) Regulations made for the purposes of paragraph (1)(b) may empower the AER to make legislative instruments.  (3) Section 42 (disallowance) of the Legislation Act 2003 does not apply to legislative instruments empowered by regulations made for the purposes of paragraph (1)(b).  (4) Subsection (3) has effect subject to any express provision to the contrary in the regulations. 44AI  Commonwealth consent to conferral of functions etc. on AER General rule  (1) Subject to section 44AIA, a State/Territory energy law or a local energy instrument may confer functions or powers, or impose duties, on the AER for the purposes of that law or instrument. Note: Section 44AK sets out when such a law or instrument imposes a duty on the AER.  (2) Subsection (1) does not authorise the conferral of a function or power, or the imposition of a duty, by a State/Territory energy law or local energy instrument to the extent to which:  (a) the conferral or imposition, or the authorisation, would contravene any constitutional doctrines restricting the duties that may be imposed on the AER; or  (3) The AER cannot perform a duty or function, or exercise a power, under a State/Territory energy law or local energy instrument unless the conferral of the function or power, or the imposition of the duty, is in accordance with the Australian Energy Market Agreement, or any other relevant agreement between the Commonwealth and the State or Territory concerned.  (4) A local energy instrument may confer functions or powers, or impose duties, on the AER only if the instrument is designated for the purposes of this subsection under the Australian Energy Market Agreement, or any other relevant agreement between the Commonwealth and the State or Territory that made the instrument.  (5) To avoid doubt, if a State/Territory energy law is also a local energy instrument, subsection (4) applies to the law. 44AIA  No merits review of AER decisions   A decision of the AER under a State/Territory energy law or local energy instrument is not to be subject to merits review (however described) by a body established under a law of a State or Territory. 44AJ  How duty is imposed  (1) This section applies if a State/Territory energy law or local energy instrument purports to impose a duty on the AER. Note 1: Section 44AK sets out when such a law or instrument imposes a duty on the AER. Note 2: Section 320 of the South Australian Energy Retail Legislation, as it applies as a law of a State or Territory, deals with the case where a duty purportedly imposed on a Commonwealth body under that applied law cannot be imposed by the State or Territory or the Commonwealth due to constitutional doctrines restricting such duties.  (2) The duty is taken not to be imposed by this Part (or any other law of the Commonwealth) to the extent to which:  (b) imposing the duty by the law or instrument of the State or Territory is consistent with the constitutional doctrines restricting the duties that may be imposed on the AER. Note: If this subsection applies, the duty will be taken to be imposed by force of the law or instrument of the State or Territory (the Commonwealth having consented under section 44AI to the imposition of the duty by that law or instrument).  (3) If, to ensure the validity of the purported imposition of the duty, it is necessary that the duty be imposed by a law of the Commonwealth (rather than by the law or instrument of the State or Territory), the duty is taken to be imposed by this Part to the extent necessary to ensure that validity.  (4) If, because of subsection (3), this Part is taken to impose the duty, it is the intention of the Parliament to rely on all powers available to it under the Constitution to support the imposition of the duty by this Part.  (5) The duty is taken to be imposed by this Part in accordance with subsection (3) only to the extent to which imposing the duty:  (b) is consistent with the constitutional doctrines restricting the duties that may be imposed on the AER.  (6) Subsections (1) to (5) do not limit section 44AI. 44AK  When a State/Territory energy law etc. imposes a duty   For the purposes of sections 44AI and 44AJ, a State/Territory energy law or local energy instrument imposes a duty on the AER if:  (a) the law or instrument confers a function or power on the AER; and  (b) the circumstances in which the function or power is conferred give rise to an obligation on the AER to perform the function or to exercise the power. 44AL  Powers of the AER   The AER has power to do all things necessary or convenient to be done for or in connection with the performance of its functions. Note: State and Territory laws or instruments may also confer powers on the AER in respect of its functions under those laws or instruments: see section 44AI. Division 4—Administrative provisions relating to the AER Subdivision A—Appointment etc. of members 44AM  Appointment of Commonwealth AER members  (1) A Commonwealth AER member is to be appointed by the Governor‑General by written instrument, on either a full‑time or part‑time basis. Note: A Commonwealth AER member is also taken to be an associate member of the Commission: see section 8AB.  (2) A Commonwealth AER member holds office for the period specified in the instrument of appointment. The period must not exceed 5 years.  (3) A person is not eligible for appointment as a Commonwealth AER member unless the person has knowledge of, or experience in, industry, commerce, economics, law, consumer protection or public administration. 44AO  Acting appointment of Commonwealth AER member  (1) The Minister may, by written instrument, appoint a person to act as a Commonwealth AER member:  (a) during a vacancy in the office of Commonwealth AER member, whether or not an appointment has previously been made to the office; or  (b) during any period, or during all periods, when the Commonwealth AER member:  (2) A person is not eligible for appointment to act as a Commonwealth AER member unless the person has knowledge of, or experience in, industry, commerce, economics, law, consumer protection or public administration. 44AP  Appointment of State/Territory AER members  (1) A State/Territory AER member is to be appointed by the Governor‑General by written instrument, on either a full‑time or part‑time basis. Note: A State/Territory AER member is also taken to be an associate member of the Commission: see section 8AB.  (2) A State/Territory AER member holds office for the period specified in the instrument of appointment. The period must not exceed 5 years.  (3) A person is not eligible for appointment as a State/Territory AER member unless the person has knowledge of, or experience in, industry, commerce, economics, law, consumer protection or public administration. 44AQ  Acting appointment of State/Territory AER member  (1) The Minister may, by written instrument, appoint a person to act as a State/Territory AER member:  (a) during a vacancy in the office of State/Territory AER member, whether or not an appointment has previously been made to the office; or  (b) during any period, or during all periods, when the State/Territory AER member:  (2) A person is not eligible for appointment to act as a State/Territory AER member unless the person has knowledge of, or experience in, industry, commerce, economics, law, consumer protection or public administration. 44AR  AER Chair  (1) One of the AER members is to be appointed by the Governor‑General as the AER Chair, by written instrument. The appointment as AER Chair may be made at the same time as the appointment as AER member, or at a later time.  (2) A person is not eligible for appointment as the AER Chair unless the person is a full‑time AER member.  (3) The AER Chair holds office for the period specified in the instrument of appointment. The period must not exceed 5 years.  (4) If the AER Chair ceases to be an AER member, then he or she also ceases to be the AER Chair. Note: A person may cease to be the AER Chair without ceasing to be an AER member. 44ARA  AER Deputy Chair  (1) One of the AER members is to be appointed by the Governor‑General as the AER Deputy Chair, by written instrument. The appointment as AER Deputy Chair may be made at the same time as the appointment as AER member, or at a later time.  (2) A person is not eligible for appointment as the AER Deputy Chair unless the person is a full‑time AER member.  (3) The AER Deputy Chair holds office for the period specified in the instrument of appointment. The period must not exceed 5 years.  (4) If a person who is the AER Deputy Chair ceases to be an AER member, then the person also ceases to be the AER Deputy Chair. Note: A person may cease to be the AER Deputy Chair without ceasing to be an AER member. 44ARB  AER Deputy Chair to act as the AER Chair   The AER Deputy Chair is to act as the AER Chair:  (a) during a vacancy in the office of the AER Chair, whether or not an appointment has previously been made to the office; or  (b) during all periods when the AER Chair: Note: See also subsection 33A(2) of the Acts Interpretation Act 1901. 44AS  Acting AER Deputy Chair  (1) The Minister may, by written instrument, appoint an AER member to act as the AER Deputy Chair:  (a) during a vacancy in the office of the AER Deputy Chair, whether or not an appointment has previously been made to the office; or  (b) during any period, or during all periods, when the AER Deputy Chair:  (2) If a person acting as the AER Deputy Chair ceases to be an AER member, then the appointment to act as the AER Deputy Chair also ceases. 44AT  Remuneration of AER members  (1) An AER member is to be paid the remuneration that is determined by the Remuneration Tribunal. If no determination of that remuneration by the Tribunal is in operation, the member is to be paid the remuneration that is prescribed.  (2) An AER member is to be paid the allowances that are prescribed.  (3) Subsections (1) and (2) have effect subject to the Remuneration Tribunal Act 1973. 44AU  Additional remuneration of AER Chair  (1) The AER Chair is to be paid additional remuneration (if any) determined by the Remuneration Tribunal.  (2) The AER Chair is to be paid additional allowances (if any) that are prescribed.  (3) This section has effect subject to the Remuneration Tribunal Act 1973 other than subsection 7(11) of that Act. 44AV  Leave of absence  (1) A full‑time AER member has the recreation leave entitlements that are determined by the Remuneration Tribunal.  (2) The Minister may grant a full‑time AER member leave of absence, other than recreation leave, on the terms and conditions as to remuneration or otherwise that the Minister determines.  (3) The AER Chair may grant leave of absence to any part‑time AER member on the terms and conditions that the AER Chair determines. 44AW  Other terms and conditions   An AER member holds office on the terms and conditions (if any) in relation to matters not covered by this Act that are determined by the Governor‑General. 44AX  Outside employment  (1) A full‑time AER member must not engage in paid employment outside the duties of the member’s office without the Minister’s consent.  (2) A part‑time AER member must not engage in any paid employment that conflicts or could conflict with the proper performance of the member’s duties. 44AY  Disclosure of interests  (1) If an AER member has any direct or indirect interest in a matter being considered, or about to be considered, by the AER, being an interest that could conflict with the proper performance of the member’s functions in relation to a matter arising at a meeting of the AER, then the member must as soon as practicable disclose that interest at a meeting of the AER.  (2) The disclosure, and any decision made by the AER in relation to the disclosure, must be recorded in the minutes of the meeting.  (3) Section 29 of the Public Governance, Performance and Accountability Act 2013 (which deals with the duty to disclose interests) does not apply in relation to a person who is an AER member when he or she is acting in his or her capacity as an AER member. Note: Section 29 of the Public Governance, Performance and Accountability Act 2013 will apply in relation to a person who is an AER member when he or she is acting in his or her capacity as an associate member of the Commission. 44AZ  Resignation  (1) An AER member may resign his or her appointment by giving the Governor‑General a written resignation.  (2) The AER Chair may resign his or her appointment as AER Chair by giving the Governor‑General a written resignation. The resignation does not affect the person’s appointment as an AER member.  (3) A person who is the AER Deputy Chair may resign the person’s appointment as AER Deputy Chair by giving the Governor‑General a written resignation. The resignation does not affect the person’s appointment as an AER member. 44AAB  Termination of appointment All AER members  (1) The Governor‑General may terminate the appointment of an AER member:  (a) for misbehaviour or physical or mental incapacity; or  (b) if the member:  (i) becomes bankrupt; or  (ii) applies to take the benefit of any law for the relief of bankrupt or insolvent debtors; or  (iii) compounds with his or her creditors; or  (iv) makes an assignment of his or her remuneration for the benefit of his or her creditors; or  (c) if the member fails, without reasonable excuse, to comply with section 44AY. Additional grounds: full‑time AER members  (2) The Governor‑General may terminate the appointment of a full‑time AER member if:  (a) the member is absent, except on leave of absence, for 14 consecutive days or for 28 days in any 12 months; or  (b) the member engages, except with the Minister’s consent, in paid employment outside the duties of his or her office. Additional grounds: part‑time AER members  (3) The Governor‑General may terminate the appointment of a part‑time AER member if:  (a) the member is absent, except on leave of absence, from 3 consecutive meetings of the AER; or  (b) the member engages in paid employment that conflicts or could conflict with the proper performance of the duties of his or her office. Subdivision B—Staff etc. to assist the AER 44AAC  Staff etc. to assist the AER   The Chairperson must make available:  (a) persons engaged under section 27; and  (b) consultants engaged under section 27A; to assist the AER to perform its functions. Subdivision C—Meetings of the AER etc. 44AAD  Meetings  (1) The AER Chair must convene such meetings of the AER as he or she thinks necessary for the efficient performance of the functions of the AER. Note: See also section 33B of the Acts Interpretation Act 1901, which contains extra rules about meetings by telephone etc.  (2) Meetings of the AER must be held at such places as the AER Chair determines.  (3) At a meeting of the AER, 3 AER members constitute a quorum. The quorum must include the AER Chair.  (4) Questions arising at a meeting must be determined by a majority of the votes of the members present and voting.  (4A) The AER Chair has a deliberative vote and, in the event of an equality of votes, also has a casting vote.  (5) The AER Chair must preside at all meetings of the AER.  (6) The AER Chair may give directions regarding the procedure to be followed at or in connection with a meeting. 44AAE  Resolutions without meetings  (1) If all AER members sign a document containing a statement that they are in favour of a resolution in terms set out in the document, then a resolution in those terms is taken to have been passed at a duly constituted meeting of the AER held on the day the document was signed, or, if the members sign the document on different days, on the last of those days.  (2) For the purposes of subsection (1), 2 or more separate documents containing statements in identical terms each of which is signed by one or more members are together taken to constitute one document containing a statement in those terms signed by those members on the respective days on which they signed the separate documents.  (3) A member must not sign a document containing a statement in favour of a resolution if the resolution concerns a matter in which the member has any direct or indirect interest, being an interest that could conflict with the proper performance of the member’s functions in relation to any matter. 44AAEA  Arbitration  (1) Sections 44AAD and 44AAE do not apply to the AER as constituted for an arbitration under:  (a) the National Electricity (Commonwealth) Law (as defined by the Australian Energy Market Act 2004); or  (b) the National Gas (Commonwealth) Law (as defined by the Australian Energy Market Act 2004); or  (c) a provision of a State/Territory energy law.  (2) The reference in subsection (1) to an arbitration includes a reference to each of the following:  (a) the making, variation or revocation of an access determination (within the meaning of the law concerned);  (b) the performance of a function, or the exercise of a power, in connection with the making, variation or revocation of an access determination (within the meaning of the law concerned). Subdivision CA—Divisions of the AER 44AAEB  Divisions of the AER—functions and powers under a law of the Commonwealth Directions  (1) The AER Chair may, by writing, direct that all or any of the AER’s functions and powers:  (a) under this Part or under regulations made under this Act; or  (b) under another law of the Commonwealth; in relation to a matter are to be performed and exercised by a Division of the AER constituted by the AER Chair and at least 2 other AER members, as specified in the direction.  (2) If a direction under subsection (1) is in force in relation to a matter, the Division of the AER specified in the direction may make recommendations to the AER in relation to the matter.  (3) If a direction under subsection (1) is in force in relation to a matter, the AER Chair may, by writing, at any time before the Division of the AER specified in the direction has made a determination in relation to the matter:  (a) revoke the direction; or  (b) amend the direction in relation to the membership of the Division or in any other respect. If the membership of a Division of the AER is changed, the Division as constituted after the change may complete the determination of the matter. The AER is taken to consist of the Division  (4) For the purposes of the determination of a matter specified in a direction given under subsection (1), the AER is taken to consist of the Division of the AER specified in the direction. Meetings  (5) The AER Chair is not required to attend a meeting of a Division of the AER if the AER Chair does not think fit to do so.  (6) The AER Deputy Chair is not required to attend a meeting of a Division of the AER if the AER Deputy Chair does not think fit to do so.  (7) At a meeting of a Division of the AER at which neither the AER Chair nor the AER Deputy Chair is presiding, an AER member nominated for the purpose by the AER Chair is to preside.  (8) Despite section 44AAD, at a meeting of a Division of the AER, 2 AER members form a quorum. The quorum need not include the AER Chair or AER Deputy Chair. Functions and powers of the AER  (9) A Division of the AER specified under subsection (1) may perform the functions and exercise the powers of the AER mentioned in that subsection despite the fact that another Division of the AER is performing those functions and exercising those powers at the same time. 44AAEC  Divisions of the AER—functions and powers under a State/Territory energy law or a local energy instrument Directions  (1) The AER Chair may, by writing, direct that all or any of the AER’s functions and powers:  (a) under a State/Territory energy law; or  (b) under a local energy instrument; in relation to a matter are to be performed and exercised by a Division of the AER constituted by the AER Chair and at least 2 other AER members, as specified in the direction.  (2) If a direction under subsection (1) is in force in relation to a matter, the Division of the AER specified in the direction may make recommendations to the AER in relation to the matter.  (3) If a direction under subsection (1) is in force in relation to a matter, the AER Chair may, by writing, at any time before the Division of the AER specified in the direction has made a determination in relation to the matter:  (a) revoke the direction; or  (b) amend the direction in relation to the membership of the Division or in any other respect. If the membership of a Division of the AER is changed, the Division as constituted after the change may complete the determination of the matter. The AER is taken to consist of the Division  (4) For the purposes of the determination of a matter specified in a direction given under subsection (1), the AER is taken to consist of the Division of the AER specified in the direction. Meetings  (5) The AER Chair is not required to attend a meeting of a Division of the AER if the AER Chair does not think fit to do so.  (6) The AER Deputy Chair is not required to attend a meeting of a Division of the AER if the AER Deputy Chair does not think fit to do so.  (7) At a meeting of a Division of the AER at which neither the AER Chair nor the AER Deputy Chair is presiding, an AER member nominated for the purpose by the AER Chair is to preside.  (8) Despite section 44AAD, at a meeting of a Division of the AER, 2 AER members form a quorum. The quorum need not include the AER Chair or AER Deputy Chair. Functions and powers of the AER  (9) A Division of the AER specified under subsection (1) may perform the functions and exercise the powers of the AER mentioned in that subsection despite the fact that another Division of the AER is performing those functions and exercising those powers at the same time.  (10) This section does not apply to a State/Territory energy law unless a provision of:  (a) the State/Territory energy law; or  (b) another law of the State or Territory concerned; provides that this section extends to, and has effect for the purposes of, the State/Territory energy law.  (11) This section does not apply to a local energy instrument unless a provision of:  (a) the local energy instrument; or  (b) the State/Territory energy law of the State or Territory concerned; or  (c) another law of the State or Territory concerned; provides that this section extends to, and has effect for the purposes of, the local energy instrument. 44AAF  Confidentiality  (1) The AER must take all reasonable measures to protect from unauthorised use or disclosure information:  (a) given to it in confidence in, or in connection with, the performance of its functions or the exercise of its powers; or  (b) that is obtained by compulsion in the exercise of its powers. Note: The Privacy Act 1988 also contains provisions relevant to the use and disclosure of information. Authorised use and disclosure  (2) For the purposes of subsection (1), the disclosure of information to the extent required or permitted by a law of the Commonwealth, a State or Territory, is authorised use and disclosure of the information.  (3) Disclosing information to one of the following is authorised use and disclosure of the information:  (a) the Commission;  (b) the AEMC;  (c) Australian Energy Market Operator Limited (ACN 072 010 327);  (ca) the Clean Energy Regulator;  (cb) the Climate Change Authority;  (d) any staff or consultant assisting a body mentioned in paragraph (a), (b), (c), (ca) or (cb) in performing its functions or exercising its powers;  (e) any other person or body prescribed by the regulations for the purpose of this paragraph.  (3A) If the AER is satisfied that particular information will enable or assist an entity covered by subsection (3B) to perform or exercise any of the entity’s functions or powers, disclosing the information to the entity is authorised use and disclosure of the information.  (3B) The entities are as follows:  (a) a Department;  (b) a body (whether incorporated or not) established or appointed for a public purpose by or under a law of the Commonwealth;  (c) a body established or appointed by the Governor‑General, or by a Minister, otherwise than by or under a law of the Commonwealth;  (d) the holder of an office established for public purposes by or under a law of the Commonwealth.  (4) A person or body to whom information is disclosed under subsection (3) or (3A) may use the information for any purpose connected with the performance of the functions, or the exercise of the powers, of the person or body.  (5) The AER may impose conditions to be complied with in relation to information disclosed under subsection (3) or (3A).  (6) For the purposes of subsection (1), the use or disclosure of information by a person for the purposes of:  (a) performing the person’s functions, or exercising the person’s powers, as:  (i) an AER member, a person referred to in section 44AAC or a delegate of the AER; or  (ii) a person who is authorised to perform or exercise a function or power of, or on behalf of, the AER; or  (b) the performance of functions, or the exercise of powers, by the person by way of assisting a delegate of the AER; is authorised use and disclosure of the information.  (7) Regulations made for the purposes of this section may specify uses of information and disclosures of information that are authorised uses and authorised disclosures for the purposes of this section.  (8) Nothing in any of the above subsections limits:  (a) anything else in any of those subsections; or  (b) what may otherwise constitute, for the purposes of subsection (1), authorised use or disclosure of information.  (9) Despite subsections (3) to (7), if:  (a) any of the following restricts or prohibits the use or disclosure of information:  (i) section 18D of the National Electricity Law set out in the Schedule to the National Electricity (South Australia) Act 1996 of South Australia as in force from time to time;  (ii) that section applied as a law of another State or Territory; and  (b) the use or disclosure of the information would, apart from this subsection, be authorised under this section; the use or disclosure of the information is authorised for the purposes of this section only to the extent that the use or disclosure of the information is required or permitted in accordance with the relevant section mentioned in subparagraph (i) or (ii). 44AAFA  Power of AER to obtain information and documents Notice requiring information etc.  (1) This section applies if the AER has reason to believe that a person is capable of providing information, producing a document or giving evidence that the AER requires for the performance of the functions referred to in section 44AH (Commonwealth functions).  (2) The AER may, by written notice given to the person, require the person to do one or more of the following:  (a) give such information to the AER;  (b) produce any such documents to the AER;  (c) appear before the AER, or before a specified person assisting the AER who is an SES employee or an acting SES employee, to give any such evidence (either orally or in writing) and produce any such documents.  (3) The notice must specify:  (a) if paragraph (2)(a) or (b) applies:  (i) the period within which the person must comply with the notice; and  (ii) the manner in which the person must comply with the notice; or  (b) if paragraph (2)(c) applies:  (i) the time at which the person must appear before the AER or person; and  (ii) the place at which the person must appear before the AER or person. Oath or affirmation  (4) The AER may require the evidence given under paragraph (2)(c) to be given on oath or affirmation. For that purpose, an AER member or a person assisting the AER may administer the oath or affirmation. 44AAFB  Failure to comply with notice to give information etc. is an offence  (1) A person commits an offence if:  (a) the person is given a notice under section 44AAFA; and  (b) the person fails to comply with the notice. Penalty: Imprisonment for 2 years or 100 penalty units, or both. Exceptions  (2) Subsection (1) does not apply to the extent that the person is not capable of complying with the notice. Note: A defendant bears an evidential burden in relation to the matters in this subsection (see subsection 13.3(3) of the Criminal Code).  (3) Subsection (1) does not apply to the extent that:  (a) the notice relates to producing documents; and  (b) the person proves that, after a reasonable search, the person is not aware of the documents; and  (c) the person provides a written response to the notice, including a description of the scope and limitations of the search. Note: A defendant bears a legal burden in relation to the matter in paragraph (3)(b) (see section 13.4 of the Criminal Code).  (4) For the purposes of (but without limiting) paragraph (3)(b), a determination of whether a search is reasonable may take into account the following:  (a) the nature and complexity of the matter to which the notice relates;  (b) the number of documents involved;  (c) the ease and cost of retrieving a document relative to the resources of the person who was given the notice;  (d) any other relevant matter. 44AAFC  AER may inspect, copy and retain documents  (1) A member of the AER, or a person authorised by a member of the AER, may inspect a document produced under section 44AAFA and may make and retain copies of such a document.  (2) The AER may take, and retain for as long as is necessary, possession of a document produced under section 44AAFA.  (3) The person otherwise entitled to possession of the document is entitled to be supplied, as soon as practicable, with a copy certified by a member of the AER to be a true copy.  (4) The certified copy must be received in all courts and tribunals as evidence as if it were the original.  (5) Until a certified copy is supplied, the AER must, at such times and places as the AER thinks appropriate, permit the person otherwise entitled to possession of the document, or a person authorised by that person, to inspect and make copies of the document. 44AAG  Federal Court may make certain orders  (1) The Federal Court may make an order, on application by the AER on behalf of the Commonwealth, declaring that a person is in breach of:  (a) a uniform energy law that is applied as a law of the Commonwealth; or  (b) a State/Territory energy law.  (2) If the order declares the person to be in breach of such a law, the order may include one or more of the following:  (a) an order that the person pay a civil penalty determined in accordance with the law;  (b) an order that the person cease, within a specified period, the act, activity or practice constituting the breach;  (c) an order that the person take such action, or adopt such practice, as the Court requires for remedying the breach or preventing a recurrence of the breach;  (d) an order that the person implement a specified program for compliance with the law;  (e) an order of a kind prescribed by regulations made under this Act.  (3) If a person has engaged, is engaging or is proposing to engage in any conduct in breach of:  (a) a uniform energy law that is applied as a law of the Commonwealth; or  (b) a State/Territory energy law; the Federal Court may, on application by the AER on behalf of the Commonwealth, grant an injunction:  (c) restraining the person from engaging in the conduct; and  (d) if, in the court’s opinion, it is desirable to do so—requiring the person to do something.  (4) The power of the Federal Court under subsection (3) to grant an injunction restraining a person from engaging in conduct of a particular kind may be exercised:  (a) if the court is satisfied that the person has engaged in conduct of that kind—whether or not it appears to the court that the person intends to engage again, or to continue to engage, in conduct of that kind; or  (b) if it appears to the court that, if an injunction is not granted, it is likely that the person will engage in conduct of that kind—whether or not the person has previously engaged in conduct of that kind and whether or not there is an imminent danger of substantial damage to any person if the person engages in conduct of that kind. 44AAGA  Federal Court may order disconnection if an event specified in the National Electricity Rules occurs  (1) If a relevant disconnection event occurs, the Federal Court may make an order, on application by the AER on behalf of the Commonwealth, directing that a Registered participant’s loads be disconnected. National Electricity Law means:  (a) the National Electricity Law set out in the Schedule to the National Electricity (South Australia) Act 1996 of South Australia as in force from time to time; or  (b) that Law as it applies as a law of another State; or  (c) that Law as it applies as a law of a Territory; or  (d) that Law as it applies as a law of the Commonwealth. National Electricity Rules means:  (a) the National Electricity Rules, as in force from time to time, made under the National Electricity Law set out in the Schedule to the National Electricity (South Australia) Act 1996 of South Australia; or  (b) those Rules as they apply as a law of another State; or  (c) those Rules as they apply as a law of a Territory; or  (d) those Rules as they apply as a law of the Commonwealth. Registered participant has the same meaning as in the National Electricity Law. relevant disconnection event means an event specified in the National Electricity Rules as being an event for which a Registered participant’s loads may be disconnected, where the event does not constitute a breach of the National Electricity Rules. 44AAH  Delegation by the AER   The AER may, by resolution, delegate:  (a) all or any of the AER’s functions and powers under this Part or under regulations made under this Act, or under another law of the Commonwealth; or  (b) all or any of the AER’s functions and powers under a State/Territory energy law; to an AER member or to an SES employee, or acting SES employee, assisting the AER as mentioned in section 44AAC. Note 1: Section 2B of the Acts Interpretation Act 1901 contains the definitions of SES employee and acting SES employee. Note 2: See also sections 34AA to 34A of the Acts Interpretation Act 1901, which contain extra rules about delegations. 44AAI  Fees  (1) The AER may charge a fee specified in the regulations for services provided by it in performing any of its functions, or exercising any of its powers, under this Part or under regulations made under this Act, or under another law of the Commonwealth or a State/Territory energy law.  (2) The fee must not be such as to amount to taxation. 44AAK  Regulations may deal with transitional matters  (1) The Governor‑General may make regulations dealing with matters of a transitional nature relating to the transfer of functions and powers from a body to the AER.  (2) Without limiting subsection (1), the regulations may deal with:  (a) the transfer of any relevant investigations being conducted by the body at the time of the transfer of functions and powers to the AER; or  (b) the transfer of any decisions or determinations being made by the body at the time of the transfer of functions and powers to the AER; or  (c) the substitution of the AER as a party to any relevant proceedings that are pending in any court or tribunal at the time of the transfer of functions and powers to the AER; or  (d) the transfer of any relevant information from the body to the AER.  (3) In this section: matters of a transitional nature also includes matters of an application or saving nature. Part IIIAB—Application of the finance law   44AAL  Application of the finance law   For the purposes of the finance law (within the meaning of the Public Governance, Performance and Accountability Act 2013):  (a) the following combination of bodies is a listed entity:  (i) the Commission;  (ii) the AER; and  (b) the listed entity is to be known as the Australian Competition and Consumer Commission; and  (c) the Chairperson is the accountable authority of the listed entity; and  (d) the following persons are officials of the listed entity:  (i) the Chairperson;  (ii) the other members of the Commission;  (iii) the associate members of the Commission;  (iv) the AER members;  (v) persons engaged under section 27; and  (e) the purposes of the listed entity include:  (i) the functions conferred on the Commission by this Act; and  (ii) the functions of the AER under Division 3 of Part IIIAA. Chapter 2—Access to services Part IIIA—Access to services 44AA  Objects of Part   The objects of this Part are to:  (a) promote the economically efficient operation of, use of and investment in the infrastructure by which services are provided, thereby promoting effective competition in upstream and downstream markets; and  (b) provide a framework and guiding principles to encourage a consistent approach to access regulation in each industry. 44B  Definitions   In this Part, unless the contrary intention appears: access code means a code referred to in section 44ZZAA. access code application means:  (a) an access code given to the Commission; or  (b) a request made to the Commission for the withdrawal or variation of an access code; or  (c) an application under subsection 44ZZBB(4) for an extension of the period for which an access code is in operation. access code decision means:  (a) a decision under section 44ZZAA to accept or reject an access code; or  (b) a decision under section 44ZZAA to consent or refuse to consent to the withdrawal or variation of an access code; or  (c) a decision under section 44ZZBB to extend or refuse to extend the period for which an access code is in operation. access undertaking means an undertaking under section 44ZZA. access undertaking application means:  (a) an access undertaking given to the Commission; or  (b) a request made to the Commission for the withdrawal or variation of an access undertaking; or  (ba) a request made to the Commission under subsection 44ZZAAB(7) to consent to the revocation or variation of a fixed principle included as a term of an access undertaking; or  (c) an application under subsection 44ZZBB(1) for an extension of the period for which an access undertaking is in operation. access undertaking decision means:  (a) a decision under section 44ZZA to accept or reject an access undertaking; or  (b) a decision under section 44ZZA to consent or refuse to consent to the withdrawal or variation of an access undertaking; or  (ba) a decision under subsection 44ZZAAB(7) to consent or refuse to consent to the revocation or variation of a fixed principle included as a term of an access undertaking; or  (c) a decision under section 44ZZBB to extend or refuse to extend the period for which an access undertaking is in operation. Commonwealth Minister means the Minister. constitutional trade or commerce means any of the following:  (a) trade or commerce among the States;  (b) trade or commerce between Australia and places outside Australia;  (c) trade or commerce between a State and a Territory, or between 2 Territories. declaration means a declaration made by the designated Minister under Division 2. declaration criteria, for a service, has the meaning given by section 44CA. declaration recommendation means a recommendation made by the Council under section 44F. declared service means a service for which a declaration is in operation. designated Minister has the meaning given by section 44D. determination means a determination made by the Commission under Division 3. director has the same meaning as in the Corporations Act 2001. entity means a person, partnership or joint venture. final determination means a determination other than an interim determination. fixed principle has the meaning given by section 44ZZAAB. ineligibility recommendation means a recommendation made by the Council under section 44LB. interim determination means a determination that is expressed to be an interim determination. modifications includes additions, omissions and substitutions. National Gas Law means:  (a) the National Gas Law set out in the Schedule to the National Gas (South Australia) Act 2008 of South Australia as in force from time to time, as that Law applies as a law of South Australia; or  (b) if an Act of another State or of the Australian Capital Territory or the Northern Territory applies the National Gas Law set out in the Schedule to the National Gas (South Australia) Act 2008 of South Australia, as in force from time to time, as a law of that other State or of that Territory—the National Gas Law as so applied; or  (c) the Western Australian Gas Legislation; or  (d) the National Gas (Commonwealth) Law (within the meaning of the Australian Energy Market Act 2004); or  (e) the Offshore Western Australian Pipelines (Commonwealth) Law (within the meaning of the Australian Energy Market Act 2004). officer has the same meaning as in the Corporations Act 2001. party means:  (a) in relation to an arbitration of an access dispute—a party to the arbitration, as mentioned in section 44U;  (b) in relation to a determination—a party to the arbitration in which the Commission made the determination. proposed facility means a facility that is proposed to be constructed (but the construction of which has not started) that will be:  (a) structurally separate from any existing facility; or  (b) a major extension of an existing facility. provider, in relation to a service, means the entity that is the owner or operator of the facility that is used (or is to be used) to provide the service. responsible Minister means:  (a) the Premier, in the case of a State;  (b) the Chief Minister, in the case of a Territory. revocation recommendation means a recommendation made by the Council under section 44J. service means a service provided by means of a facility and includes:  (a) the use of an infrastructure facility such as a road or railway line;  (b) handling or transporting things such as goods or people;  (c) a communications service or similar service; but does not include:  (d) the supply of goods; or  (e) the use of intellectual property; or  (f) the use of a production process; except to the extent that it is an integral but subsidiary part of the service. State or Territory access regime law means:  (a) a law of a State or Territory that establishes or regulates an access regime; or  (b) a law of a State or Territory that regulates an industry that is subject to an access regime; or  (c) a State/Territory energy law. State or Territory body means:  (a) a State or Territory;  (b) an authority of a State or Territory. third party, in relation to a service, means a person who wants access to the service or wants a change to some aspect of the person’s existing access to the service. 44C  How this Part applies to partnerships and joint ventures  (1) This section applies if the provider of a service is a partnership or joint venture that consists of 2 or more corporations. Those corporations are referred to in this section as the participants.  (2) If this Part requires or permits something to be done by the provider, the thing may be done by one or more of the participants on behalf of the provider.  (3) If a provision of this Part refers to the provider bearing any costs, the provision applies as if the provision referred to any of the participants bearing any costs.  (4) If a provision of this Part refers to the provider doing something, the provision applies as if the provision referred to one or more of the participants doing that thing on behalf of the provider.  (a) a provision of this Part requires the provider to do something, or prohibits the provider from doing something; and  (b) a contravention of the provision is an offence; the provision applies as if a reference to the provider were a reference to any person responsible for the day‑to‑day management and control of the provider.  (a) a provision of this Part requires a provider to do something, or prohibits a provider doing something; and  (b) a contravention of the provision is not an offence; the provision applies as if the reference to provider were a reference to each participant and to any other person responsible for the day‑to‑day management and control of the provider. 44CA  Meaning of declaration criteria  (1) The declaration criteria for a service are:  (a) that access (or increased access) to the service, on reasonable terms and conditions, as a result of a declaration of the service would promote a material increase in competition in at least one market (whether or not in Australia), other than the market for the service; and Note: Market is defined in section 4E.  (b) that the facility that is used (or will be used) to provide the service could meet the total foreseeable demand in the market:  (i) over the period for which the service would be declared; and  (ii) at the least cost compared to any 2 or more facilities (which could include the first‑mentioned facility); and  (c) that the facility is of national significance, having regard to:  (i) the size of the facility; or  (ii) the importance of the facility to constitutional trade or commerce; or  (iii) the importance of the facility to the national economy; and  (d) that access (or increased access) to the service, on reasonable terms and conditions, as a result of a declaration of the service would promote the public interest.  (2) For the purposes of paragraph (1)(b):  (a) if the facility is currently at capacity, and it is reasonably possible to expand that capacity, have regard to the facility as if it had that expanded capacity; and  (b) without limiting paragraph (1)(b), the cost referred to in that paragraph includes all costs associated with having multiple users of the facility (including such costs that would be incurred if the service is declared).  (3) Without limiting the matters to which the Council may have regard for the purposes of section 44G, or the designated Minister may have regard for the purposes of section 44H, in considering whether paragraph (1)(d) of this section applies the Council or designated Minister must have regard to:  (a) the effect that declaring the service would have on investment in:  (i) infrastructure services; and  (ii) markets that depend on access to the service; and  (b) the administrative and compliance costs that would be incurred by the provider of the service if the service is declared. 44D  Meaning of designated Minister  (1) The Commonwealth Minister is the designated Minister unless subsection (2), (3), (4) or (5) applies.  (2) In relation to declaring a service in a case where:  (a) the provider is a State or Territory body that has some control over the conditions for accessing the facility that is used (or is to be used) to provide the service; and  (b) the State or Territory concerned is a party to the Competition Principles Agreement; the responsible Minister of the State or Territory is the designated Minister.  (3) In relation to revoking a declaration that was made by the responsible Minister of a State or Territory, the responsible Minister of that State or Territory is the designated Minister.  (4) In relation to deciding whether a service is ineligible to be a declared service in a case where:  (a) a person who is, or expects to be, the provider of the service is a State or Territory body that has some control over the conditions for accessing the facility that is used (or is to be used) to provide the service; and  (b) the State or Territory concerned is a party to the Competition Principles Agreement; the responsible Minister of the State or Territory is the designated Minister.  (5) In relation to revoking a decision:  (a) that a service is ineligible to be a declared service; and  (b) that was made by the responsible Minister of a State or Territory; the responsible Minister of that State or Territory is the designated Minister. 44DA  The principles in the Competition Principles Agreement have status as guidelines  (1) For the avoidance of doubt:  (c) the requirement, under subsection 44M(4), that the Council apply the relevant principles set out in the Competition Principles Agreement in deciding whether to recommend to the Commonwealth Minister that he or she should decide that an access regime is, or is not, an effective access regime; and  (d) the requirement, under subsection 44N(2), that the Commonwealth Minister, in making a decision on a recommendation received from the Council, apply the relevant principles set out in the Agreement; are obligations that the Council and the relevant Ministers must treat each individual relevant principle as having the status of a guideline rather than a binding rule.  (2) An effective access regime may contain additional matters that are not inconsistent with Competition Principles Agreement principles. 44E  This Part binds the Crown  (1) This Part binds the Crown in right of the Commonwealth, of each of the States, of the Australian Capital Territory and of the Northern Territory.  (2) Nothing in this Part makes the Crown liable to be prosecuted for an offence.  (3) The protection in subsection (2) does not apply to an authority of the Commonwealth or an authority of a State or Territory. Division 2—Declared services Subdivision A—Recommendation by the Council 44F  Person may request recommendation  (1) The designated Minister, or any other person, may apply in writing to the Council asking the Council to recommend that a particular service be declared unless:  (a) the service is the subject of a regime for which a decision under section 44N that the regime is an effective access regime is in force (including as a result of an extension under section 44NB); or  (b) the service is the subject of an access undertaking in operation under Division 6; or  (c) if a decision is in force under subsection 44PA(3) approving a tender process, for the construction and operation of a facility, as a competitive tender process—the service was specified, in the application for that decision, as a service proposed to be provided by means of the facility; or  (d) if the service is provided by means of a pipeline (within the meaning of a National Gas Law)—there is:  (i) a 15‑year no‑coverage determination in force under the National Gas Law in respect of the pipeline; or  (ii) a price regulation exemption in force under the National Gas Law in respect of the pipeline; or  (e) there is a decision of the designated Minister in force under section 44LG that the service is ineligible to be a declared service. Note: This means an application can only be made or dealt with under this Subdivision if none of paragraphs (a) to (e) apply.  (1A) If the Council decides that one or more of paragraphs (1)(a) to (e) apply for a service mentioned in a person’s purported application under that subsection, the Council must give the person written notice explaining:  (a) why those paragraphs apply; and  (b) that such an application cannot be made for the service.  (2) After receiving an application under subsection (1), the Council:  (a) must tell the provider of the service that the Council has received the application, unless the provider is the applicant; and  (b) must, after having regard to the objects of this Part, recommend to the designated Minister:  (i) that the service be declared, with the expiry date specified in the recommendation; or  (ii) that the service not be declared. Note 1: There are time limits that apply to the Council’s recommendation: see section 44GA. Note 2: The Council may request information and invite public submissions on the application: see sections 44FA and 44GB. Note 3: The Council must publish its recommendation: see section 44GC.  (3) If the applicant is a person other than the designated Minister, the Council may recommend that the service not be declared if the Council thinks that the application was not made in good faith. This subsection does not limit the grounds on which the Council may decide to recommend that the service not be declared.  (5) The applicant may withdraw the application at any time before the Council makes a recommendation relating to it.  (6) The applicant may request, in writing, the Council to vary the application at any time before the Council makes a recommendation relating to it.  (7) If a request is made under subsection (6), the Council must decide to:  (a) make the variation; or  (b) reject the variation.  (9) The Council may reject the variation if it is satisfied that the requested variation is of a kind, or the request for the variation is made at a time or in a manner, that:  (a) would unduly prejudice the provider (if the provider is not the applicant) or anyone else the Council considers has a material interest in the application; or  (b) would unduly delay the process for considering the application. 44FA  Council may request information  (1) The Council may give a person a written notice requesting the person give to the Council, within a specified period, information of the kind specified in the notice that the Council considers may be relevant to deciding what recommendation to make on an application under section 44F.  (a) must have regard to any information given in compliance with a notice under subsection (1) within the specified period; and  (b) may disregard any information of the kind specified in the notice that is given after the specified period has ended.  (4) Subsections 44GB(4) to (6) apply to information given in response to a notice under this section (whether given in compliance with the notice or not) in a corresponding way to the way those subsections apply to a submission made in response to a notice under subsection 44GB(1). Note: This allows the Council to make the information publicly available, subject to any confidentiality concerns. 44G  Criteria for the Council recommending declaration of a service   The Council cannot recommend that a service be declared unless it is satisfied of all of the declaration criteria for the service. 44GA  Time limit for Council recommendations  (1) The Council must make a recommendation on an application under section 44F within the consideration period.  (2) The consideration period is a period of 180 days (the expected period), starting at the start of the day the application is received, unless the consideration period is extended under subsection (7).  (3) In working out the expected period in relation to a recommendation on an application under section 44F, in a situation referred to in column 1 of an item of the following table, disregard any day in a period:   - 1 An agreement is made in relation to the application under subsection (5) The first day of the period specified in the agreement The last day of the period specified in the agreement - 2 A notice is given under subsection 44FA(1) requesting information in relation to the application The day on which the notice is given The last day of the period specified in the notice for the giving of the information  (5) The Council, the applicant and the provider of the service (if the provider is not the applicant) may agree in writing that a specified period is to be disregarded in working out the expected period. Council may extend time for making recommendation  (7) If the Council is unable to make a recommendation within the consideration period (whether it is the expected period or the consideration period as previously extended under this subsection), it must, by notice in writing to the designated Minister, extend the consideration period by a specified period.  (a) specify when the Council must now make a recommendation on the application; and  (b) include a statement explaining why the Council has been unable to make a decision on the recommendation within the consideration period.  (a) the applicant; and  (10) If the Council extends the consideration period under subsection (7), it must publish a notice in a manner that results in the notice being accessible to the public and reasonably prominent:  (11) Failure by the Council to comply with a time limit set in this section does not affect the validity of a recommendation made under this section. 44GB  Council may invite public submissions on the application  (1) The Council may publish, by electronic or other means, a notice inviting public submissions on an application under section 44F if it considers that it is appropriate and practicable to do so.  (2) The notice must specify how submissions may be made and the day by which submissions may be made (which must be at least 14 days after the day the notice is published).  (3) Subject to subsection (6), in deciding what recommendation to make on the application, the Council:  (4) The Council may make any written submission, or a written record (which may be a summary) of any oral submission, publicly available.  (b) not publish or make available the whole or a part of the submission under section 44GC;  (a) for a written submission—the Council must, if the person who made it so requires, return the whole or the part of it to the person; and  (b) for an oral submission—the person who made it may inform the Council that the person withdraws the whole or the part of it; and  (c) if the Council returns the whole or the part of the submission, or the person withdraws the whole or the part of the submission, the Council must not:  (ii) publish or make available the whole or the part of the submission under section 44GC; and  (iii) have regard to the whole or the part of the submission in making its recommendation on the application. 44GC  Council must publish its recommendation  (1) The Council must publish, by electronic or other means, a recommendation under section 44F and its reasons for the recommendation.  (a) the applicant under section 44F; and  (3) The Council must do the things under subsections (1) and (2) on the day the designated Minister publishes his or her decision on the recommendation or as soon as practicable after that day.  (a) the applicant under section 44F;  (b) if the applicant is not the provider of the service—the provider;  (c) any other person the Council considers appropriate;  (d) specifying what the Council is proposing to publish; and  (e) inviting the person to make a written submission to the Council within 14 days after the notice is given identifying any information the person considers should not be published because of its confidential commercial nature.  (5) The Council must have regard to any submission so made in deciding what to publish. It may have regard to any other matter it considers relevant. Subdivision B—Declaration by the designated Minister 44H  Designated Minister may declare a service  (1) On receiving a declaration recommendation, the designated Minister must either declare the service or decide not to declare it. Note: The designated Minister must publish his or her decision: see section 44HA.  (1A) The designated Minister must have regard to the objects of this Part in making his or her decision.  (4) The designated Minister cannot declare a service unless he or she is satisfied of all of the declaration criteria for the service.  (8) If the designated Minister declares the service, the declaration must specify the expiry date of the declaration.  (9) If the designated Minister does not publish under section 44HA his or her decision on the declaration recommendation within 60 days after receiving the declaration recommendation, the designated Minister is taken, at the end of that 60‑day period:  (a) to have made a decision under this section in accordance with the declaration recommendation; and  (b) to have published that decision under section 44HA. 44HA  Designated Minister must publish his or her decision  (1) The designated Minister must publish, by electronic or other means, his or her decision on a declaration recommendation and his or her reasons for the decision.  (2) The designated Minister must give a copy of the publication to:  (a) the applicant under section 44F; and  (3) Before publishing under subsection (1), the designated Minister may give any one or more of the following persons:  (a) the applicant under section 44F;  (b) if the applicant is not the provider of the service—the provider;  (c) any other person the designated Minister considers appropriate;  (d) specifying what the designated Minister is proposing to publish; and  (e) inviting the person to make a written submission to the designated Minister within 14 days after the notice is given identifying any information the person considers should not be published because of its confidential commercial nature.  (4) The designated Minister must have regard to any submission so made in deciding what to publish. He or she may have regard to any other matter he or she considers relevant.