Competition and Consumer Amendment (Australian Energy Regulator Separation) Act 2025

The central concept is entity separation. Before this Act, the AER was constituted as a part of the ACCC under section 44AE of the CCA. The Act reverses that structural integration. New subsection 44AE(1A) makes the AER a listed entity under the PGPA Act, which brings it within the full Commonwealth financial framework as its own reporting entity with separate accountability obligations. The AER members become the accountable authority, and the AER's purposes are expressly stated to include its functions under Division 3 of Part IIIAA. This is not merely a technical change; it shifts budget responsibility, audit requirements, and performance reporting from the ACCC to the AER. A second key concept is agency autonomy under the Public Service Act. The Act creates a new Statutory Agency consisting of the AER Chair and the APS employees assisting the Chair, with the AER Chair as the Head of that Statutory Agency. This means the AER now controls its own recruitment, performance management, and staffing structure, subject only to the Public Service Act 1999. Previously, AER staff were ACCC employees or persons made available to the AER; now they are employees of the AER's own Statutory Agency. The concept of AER State/Territory energy law is introduced as a new defined term in section 44AB, replacing the old references to State/Territory energy law. The definition covers uniform energy laws applying as State or Territory laws, laws that adopt such uniform laws, and any other energy-related provisions prescribed by regulation. This relabeling isolates the AER's regulatory remit from the general energy law provisions that may also be administered by other bodies. The concept of transitional continuity is embedded in Schedule 2. Delegations made under the old section 44AAH continue in force as if made under the amended section. Documents held by the ACCC relating to AER functions may be transferred to the AER. Regulations prescribing State/Territory energy laws under the old definition continue to have effect as if prescribed under the new AER State/Territory energy law definition until new regulations are made. The ACCC enterprise agreement applies to AER staff on commencement, with statutory reading-down of references. This preserves employment conditions without interruption but creates a potential hybrid situation where AER staff are covered by an agreement originally negotiated for ACCC staff, which may not be optimal for the AER's separate operational needs. The Minister's power to make transitional rules under Part 3 is broad but bounded: it can cover matters of a transitional nature including application and saving provisions relating to the enterprise agreement or the enactment of the amending Act, but cannot create offences, civil penalties, powers of arrest or search, taxes, appropriations, or directly amend primary legislation. This delegated power could be used to resolve unforeseen integration issues, but also introduces regulatory uncertainty for the transitional period.

The primary entities affected are the Australian Energy Regulator and the Australian Competition and Consumer Commission. For the ACCC, the Act removes its responsibility for the AER's staffing, budget, and accountability. The ACCC Chair ceases to be the accountable authority for AER matters, and ACCC members who were also AER members lose that dual role (reflectively, though the Act does not explicitly remove AER members; it restructures the entity so the AER members are the accountable authority). The ACCC retains a permissive function to provide supports and resources to the AER under new section 28A, but this is not an obligation. This affects the ACCC's internal resource allocation, as it may choose to charge the AER for shared services or cease providing them altogether, leaving the AER to source its own corporate services. For the AER itself, the effects are profound. It must now manage its own finances, reporting, and accountability under the PGPA Act as a listed entity. It must establish its own HR function as a Statutory Agency under the Public Service Act. AER staff, who previously were ACCC employees, become employees of the AER's Statutory Agency, though initially covered by the same enterprise agreement. The AER Chair becomes the Agency Head and accountable authority, bearing personal responsibility for financial management and performance. For APS employees who are or become staff of the AER, their employment relationship changes. While their enterprise agreement coverage continues, their employer is now the AER Statutory Agency, not the ACCC. Over time, their conditions could diverge as the AER negotiates its own enterprise agreement. The transitional provisions protect existing conditions but do not guarantee future parity. State and Territory governments are affected in that they may enter into arrangements with the AER under new section 44AACA to make officers or employees available to assist the AER, with the Commonwealth empowered to reimburse them. This is a permissive provision that could facilitate intergovernmental cooperation but could also create cost-shifting if the Commonwealth does not offer reimbursement. Energy industry participants regulated by the AER under State and Territory energy laws are indirectly affected. The separation may affect the AER's operational efficiency, decision-making speed, and institutional capacity. If the transition is poorly managed, regulatory decisions could be delayed or quality could suffer. Conversely, a more focused AER might improve regulatory outcomes. Industry participants also face transitional uncertainty as the AER establishes its independent operations. Consultants and contractors dealing with the AER now contract directly with the AER rather than through the ACCC, which may change procurement processes and terms. Legal practitioners appearing before the AER face changed procedures: the Act updates investigatory and hearing provisions so that references to ACCC-associated hearing convenors are replaced with AER staff members who are SES employees or acting SES employees. The repealed Part IIIAB may have contained additional procedural provisions that are now gone, so practitioners must check the amended text carefully for any gaps.

The Act creates a duty on the AER members, as a collective, to act as the accountable authority of the AER under the PGPA Act. This duty includes the general duties in section 15 of the PGPA Act: to govern the entity honestly, with due care and diligence, and not to misuse position or information. The AER members become personally responsible for the proper use of Commonwealth resources, financial reporting, and annual performance statements. Previously, these duties fell on the ACCC Chairperson for the AER as a part of the Commission. This is a significant shift in accountability allocation. For the AER Chair, there is an additional duty as the Head of the Statutory Agency under the Public Service Act 1999, with responsibilities for employment decisions, performance management, and ensuring the APS Values and Code of Conduct are upheld. The AER Chair also has the right to delegate powers under section 44AAH (as amended) to members of the AER staff who are SES employees or acting SES employees, or to persons assisting the AER who meet that classification. This delegation power is narrower than it might have been under the old provision, as it is now tied to SES classification rather than simply to "persons assisting the AER." The AER itself has the right under new section 44AACA to make arrangements with State or Territory governments or authorities for the services of their officers or employees. This is a right to acquire human resources from sub-national governments, subject to the terms of the arrangement. The AER also has the right to engage consultants under section 44AACB, on terms it determines. The ACCC has the right, but not the duty, under new section 28A to provide the AER with supports and resources including corporate and IT resources. This is a permissive power, meaning the ACCC may decline to provide such support, and the AER has no right to demand it. This creates a potential gap if the ACCC decides to withdraw shared services post-separation. APS employees who are staff of the AER retain their rights under the Public Service Act 1999, including rights to review of employment actions, and rights under the continuing ACCC enterprise agreement. However, their rights are limited by the fact that the enterprise agreement is the ACCC's agreement, not one negotiated for the AER, and may not perfectly reflect the AER's operational needs. Employees seconded from State or Territory governments under section 44AACA have the right to be subject to the AER's directions while performing services for the AER (subsection 44AACA(4)). This subordinates them to the AER's operational control for the duration of their secondment. Parties under investigation by the AER have rights regarding compelled appearances. Under amended section 44AAFA(2)(c), the AER can require a person to appear before the AER, a specified member of the AER staff who is an SES employee, or a specified person assisting the AER who is an SES employee, to give evidence and produce documents. This replaces the previous provision that referred to the AER or a person assisting the AER without the SES classification limitation, potentially narrowing the pool of those who can compel appearances to senior staff only. The repealed Part IIIAB may have contained other rights for parties; its removal means those provisions are no longer law, and practitioners must rely on the remaining provisions of Part IIIAA and general administrative law.

The Act itself does not create new penalties or civil penalty provisions specifically for the separation. It does, however, amend existing enforcement-related provisions in the CCA. The most significant change is to the provisions dealing with compulsory information-gathering powers. Under the old framework, notices to appear or produce documents could be directed to the AER or a person assisting the AER. Under the amended provisions, the AER can delegate the power to hear evidence to members of the AER staff who are SES employees or acting SES employees, or to persons assisting the AER who meet that classification (amended paragraph 44AAFA(2)(c)). This SES classification requirement limits who can exercise these coercive powers, which may reduce the pool of available delegates and increase the risk of enforcement delays. Section 44AAF(6)(a) is amended to expand the list of persons who are protected from certain liabilities when assisting the AER. Previously, the protection covered only a person referred to in the old section 44AAC (which was ACCC staff assisting the AER). Now, the protection covers members of the staff of the AER, persons assisting the AER under section 44AACA, and consultants engaged under section 44AACB. This broadens the statutory protection to the AER's own personnel and seconded staff, which is relevant to potential defamation or breach of confidence claims arising from their work. The definitions of these protected persons are imported directly into the CCA's existing enforcement framework. Section 155(1)(c) is amended to remove the ability for the ACCC to require a person to appear before an associate member of the Commission who is an AER member. This provision previously allowed ACCC compulsory examination hearings to be conducted by AER members acting as ACCC associate members. With the separation, that cross-appointment mechanism is removed. The effect is that ACCC compulsory hearings cannot be conducted by AER members, and conversely, AER hearings cannot be conducted by ACCC members unless separately authorised under the new delegation framework. This may reduce administrative flexibility and could create inefficiencies if cross-agency cooperation is needed. Section 157A is amended to extend the prohibition on publication of certain evidence to cover AER staff, persons assisting the AER, and consultants, not just the AER or its former assisting persons. This closes a potential gap where third parties might have argued that publication restrictions did not apply to AER personnel who were not previously captured by the provision. Section 158B is amended to remove references to associate members of the Commission who are AER members from the list of persons who can preside at hearings, and to update references about who may be heard before. The amendments narrow the category of authorised hearing convenors to AER staff members or persons assisting the AER, consistent with the new structure. Importantly, the Minister's transitional rule-making power under Schedule 2, Part 3, clause 7 expressly cannot create offences or civil penalties, nor provide powers of arrest, detention, entry, search, or seizure. This means any transitional gaps in enforcement coverage must be addressed by the substantive amendments themselves, not by delegated legislation. If the amendments inadvertently remove a previously available enforcement mechanism (such as cross-agency hearing convenors), the Minister cannot cure that gap via transitional rules. That gap would require separate primary or amending legislation.

The Act operates primarily within the framework of the Competition and Consumer Act 2010 itself, but it has significant interactions with several other Commonwealth statutes. The most important interaction is with the Public Governance, Performance and Accountability Act 2013. New subsection 44AE(1A) makes the AER a listed entity under PGPA, meaning the AER becomes subject to the full PGPA framework: annual reports, financial statements, performance statements, audit by the Auditor-General, and the duties of accountable authorities. The AER members collectively become the accountable authority, and the AER Chair does not hold that role alone; it is the members collectively. This is a departure from the ACCC model, where the Chairperson is the accountable authority for the Commission. The interaction with the Public Service Act 1999 is equally significant. New section 44AAC establishes the AER as a Statutory Agency for APS purposes. This brings the AER within the APS employment framework, including the APS Values, the Code of Conduct, and the merit-based recruitment and promotion requirements. The AER Chair is the Head of the Statutory Agency and must exercise powers under the Public Service Act, including the power to engage APS employees and to determine classification levels within the Agency's allocation. This is a substantial administrative burden that previously was managed by the ACCC. The Act also interacts with the Fair Work Act 2009 through the enterprise agreement transitional provisions in Schedule 2, Part 2, item 5. The ACCC Enterprise Agreement 2024-2027 continues to cover and apply to APS employees who become AER staff on commencement. The AER Chair is treated as the Agency Head for the purposes of that agreement. Section 58 of the Fair Work Act is preserved, meaning that if another enterprise agreement later covers the AER staff, the rules about interaction between multiple enterprise agreements in that section will apply. The transitional provisions do not prevent variation or termination of the agreement in accordance with law, so the AER could negotiate its own enterprise agreement at any point post-separation. The Act interacts with the Archives Act 1983 via the note to clause 3 of Schedule 2, Part 2, which states that documents transferred to the AER are Commonwealth records for the purposes of the Archives Act. This means the AER must manage those documents in accordance with the Archives Act's retention and disposal requirements. The Act interacts with the Freedom of Information Act 1982 indirectly: as a listed entity under PGPA, the AER is an agency for FOI purposes, with all that entails for disclosure obligations and exemptions. The Act also interacts with State and Territory laws through the definition of AER State/Territory energy law in new section 44AB. This definition picks up uniform energy laws as they exist from time to time, so amendments to State energy laws automatically flow through to the CCA reference without needing Commonwealth amendment. The definition also allows regulations to prescribe additional State or Territory law provisions as AER State/Territory energy laws. The transitional provisions for regulations under the old definition ensure continuity until new regulations are made. The repeal of Part IIIAB removes any provisions that were contained in that Part. That Part may have contained additional interaction provisions with other laws; its removal means those provisions cease to have effect. The transitional rules cannot restore them, so any reliance on Part IIIAB provisions is lost unless saved by the general transitional rules in Schedule 2. The delegations under the old section 44AAH continue in force as if made under the amended section. This preserves existing delegation arrangements but ties them to the new framework, which may have different scope or limitations.

This Act is the Competition and Consumer Amendment (Australian Energy Regulator Separation) Act 2025. It received Royal Assent on 6 November 2025. The second reading speech was made in the Senate on 23 July 2025 and in the House of Representatives on 30 October 2025. The Act is assigned Act No. 59 of 2025. The commencement date for all provisions is 1 July 2026, as specified in section 2 and the commencement table. This is a forward commencement date, approximately eight months after Royal Assent, which provides a transitional period for the ACCC and AER to prepare for separation. The Act amends the Competition and Consumer Act 2010 exclusively. It is a stand-alone amending Act, not an omnibus bill, and its scope is limited to the structural separation of the AER. The Act does not amend any other legislation. The amendment history within the CCA can be traced through the item numbers in Schedule 1. There are 36 amendment items in Schedule 1. Items 1 through 3 deal with new definitions and functions. Items 4 through 27 amend Part IIIAA (the AER-specific part of the CCA). Item 28 repeals Part IIIAB entirely. Items 29 through 36 amend other parts of the CCA that reference the AER or AER members, including sections 155, 157A, and 158B. The Act does not contain any savings or transitional provisions that amend other Acts; all transitional provisions are within Schedule 2 and relate solely to the CCA and the enterprise agreement. The transitional rules power in Part 3 of Schedule 2 is a standard provision in machinery-of-government amendments. The Minister may make legislative instruments for matters necessary to give effect to the Schedule. The power is subject to the usual limitations for delegated legislation: it cannot create offences, civil penalties, coercive powers, taxes, appropriations, or directly amend primary legislation. This means any significant policy or enforcement gap that emerges must be addressed by Parliament, not by the Minister alone. The Act is relatively short: 36 items in Schedule 1 and 7 clauses in Schedule 2. It does not include a review clause, sunset clause, or requirement for post-implementation review. There is no statement in the Act of its constitutional basis, but it relies on the Commonwealth's corporations power (section 51(xx)), trade and commerce power (section 51(i)), and the incidental power (section 51(xxxix)), as do the AER provisions of the CCA generally. The Act was passed with the support of the government of the day; the specific vote margins are not included in the text. The Act does not amend the National Electricity Law or National Gas Law directly; those laws are given effect through the definition of AER State/Territory energy law, which refers to them as in force from time to time.

The Act is too recently enacted (Royal Assent 6 November 2025, commencement 1 July 2026) to have any litigation history of its own. No court decisions interpreting this specific Act exist at the time of writing. However, the amendments it makes to the CAA will be subject to the same principles of statutory interpretation that apply to the CCA generally. The High Court of Australia has considered the constitutional validity of the AER's role under the CCA in cases such as Palmer v Western Australia and JT International SA v Commonwealth, but those cases concern broader Commonwealth-State cooperative schemes rather than the AER's structural relationship with the ACCC. The repeal of Part IIIAB may become the subject of interpretive disputes if that Part contained provisions that practitioners relied upon. Without the text of the repealed Part (which is not included in the Act), it is impossible to say exactly what is lost. The transitional provisions in Schedule 2 are designed to preserve continuity, but if the repealed Part contained substantive rights or obligations that are not saved, litigation may arise over whether those rights or obligations survive. The enterprise agreement transitional provisions (Schedule 2, items 5 and 6) could be litigated under the Fair Work Act 2009 if there is a dispute about whether the ACCC Enterprise Agreement properly covers and applies to AER staff post-separation, or about the AER Chair's obligations as Agency Head under that agreement. The Fair Work Commission would have jurisdiction over such disputes, not the Federal Court initially. The delegation savings provision (Schedule 2, item 2) may be tested if someone challenges a decision by an AER delegate on the ground that the delegation did not survive the separation. The clause states that the delegation continues in force as if it were made under the amended section. A court would need to construe the phrase "as if it were a delegation made under section 44AAH as amended" to see if it preserves the delegation even if the scope of the amended section differs from the old one. The transitional rules power (Schedule 2, Part 3) could be challenged on administrative law grounds if the Minister makes a rule that exceeds the scope of the power, for example by purporting to create an offence or civil penalty, which is expressly prohibited. Such a rule would be invalid as beyond power. Any litigation would likely arise after commencement on 1 July 2026, so it is still in the future. The Act itself does not reference any prior litigation that motivated the separation. It is a machinery-of-government Act, not a response to a specific court decision. For now, the litigation history of this Act is a blank slate, and practitioners must advise clients based on the text of the amendments and the transitional provisions alone.

The most subtle trap for practitioners is the repeal of Part IIIAB without a corresponding saving provision for its contents. Part IIIAB is repealed entirely by item 28 of Schedule 1. The text of that Part is not reproduced in the amending Act. Anyone relying on a provision that was in Part IIIAB after 1 July 2026 will find it is no longer law. The transitional rules power under Part 3 of Schedule 2 cannot recreate a repealed provision because it cannot amend the CCA directly. If Part IIIAB contained important definitions, exemptions, or procedural rules, they are simply gone. Practitioners must check the CCA as it stands after the amendments to ensure their entire legal analysis remains grounded in existing provisions. The SES classification requirement for delegates and hearing convenors is another trap. Under amended section 44AAFA(2)(c), a person can only be compelled to appear before the AER, a member of the staff of the AER who is an SES employee or acting SES employee, or a specified person assisting the AER under section 44AACA who is an SES employee or acting SES employee. This means that if the AER has no SES-level staff available for a particular hearing, it cannot delegate the hearing power to a junior APS employee. This could cause delays in enforcement if the AER has not filled its SES positions by commencement. The old provision allowed a broader class of "person assisting the AER" to convene hearings. Similarly, the delegation power under section 44AAH is tied to SES employees. The AER must ensure it has sufficient SES staffing to exercise its coercive powers from day one of the separation. The ACCC's permissive resource provision under new section 28A is a trap for the AER's operational planning. The section says the ACCC "may" provide supports and resources. This is not a duty. The AER cannot compel the ACCC to provide IT systems, payroll processing, or legal services after separation. The AER must either negotiate a binding service-level agreement with the ACCC or develop its own capacity. The transitional provisions do not guarantee continued shared services. The AER's budget must account for the possibility that the ACCC will decline to provide any support. The enterprise agreement trap is subtle. The ACCC Enterprise Agreement continues to cover AER staff on commencement, but it references the ACCC and the ACCC Chairperson. While the transitional provisions read those references as references to the AER and the AER Chair, this is a statutory fiction. The agreement was not drafted for the AER's specific operational needs. It may contain provisions that are inappropriate for a small regulatory agency or that conflict with the AER's new statutory functions. The AER cannot vary the agreement unilaterally; it must follow the Fair Work Act process. In the interim, the AER may be bound by an agreement that does not fit its circumstances. The document transfer provision in clause 3 of Schedule 2 is permissive, not mandatory. The ACCC "may" transfer documents to the AER. If the ACCC does not transfer documents, the AER may lack the historical records needed for ongoing regulatory matters. The AER has no right under the Act to demand transfer. This is a risk for continuity of regulatory proceedings that began before separation. The Minister's transitional rules power is broad but subject to express prohibitions. The rules cannot create offences, civil penalties, powers of arrest, detention, entry, search, or seizure, impose taxes, set appropriations, or amend the CCA or the amending Act directly. Anything not falling into those categories is potentially within scope. This creates uncertainty: the Minister could impose significant transitional obligations on the AER, ACCC, or third parties via delegated legislation that has not yet been drafted. The text of the transitional rules is unknown until they are made, and they could contain surprises. Finally, the repeal of sections 44AM, 44AP, and 44AY notes removes explanatory notes from the CCA. Notes are not law, but they often contain useful cross-references or explanations. Their removal may make the Act harder to interpret, particularly for those unfamiliar with the energy regulatory framework. The notes may have directed readers to related provisions or provided examples; without them, practitioners must rely on the text and extrinsic materials.

Compliance with this Act primarily falls on the AER and the ACCC as the entities undergoing the structural separation, rather than on regulated parties or the general public. For the AER, the compliance path begins before commencement on 1 July 2026. The AER must: (1) establish itself as a listed entity under the PGPA Act, which involves preparing an accountable authority instructions document, setting up financial reporting systems, and appointing officers to manage finance law obligations; (2) register as a Statutory Agency under the Public Service Act 1999, which involves obtaining an agency allocation from the Australian Public Service Commission, recruiting or transferring APS employees to the new Agency, and issuing employment determinations as needed; (3) ensure that all SES employees who will exercise delegation powers under section 44AAH or hearing powers under section 44AAFA are properly appointed, including acting SES appointments where necessary, to maintain enforcement capacity from day one; (4) negotiate with the ACCC under new section 28A for the provision of corporate and IT resources, with formal written agreements in place before 1 July 2026 to avoid operational gaps; and (5) update all forms, website references, legal notices, and correspondence templates to reflect the AER's new independent identity rather than as a part of the ACCC. The AER should also prepare for the possibility that the ACCC will not transfer documents under clause 3 of Schedule 2 voluntarily. The AER should request transfer of all documents relevant to its current regulatory proceedings and make its own copies before commencement if possible. If the ACCC does not cooperate, the AER may need to issue notices under its compulsory powers to obtain information already held by the ACCC, which would be an inefficient use of resources. For the ACCC, compliance involves: (1) ceasing to treat the AER as a part of the Commission for any purpose, including budget, staffing, and accountability; (2) updating its own PGPA listed entity documentation to reflect that the AER is no longer within its scope; (3) reviewing and potentially revoking any delegations that were made to AER personnel under old provisions that are not saved by the transitional rules; (4) deciding whether to exercise the section 28A power to provide resources to the AER, and if so, on what terms; and (5) transferring documents to the AER as appropriate. For APS employees who are becoming AER staff, they need to: (1) confirm that their employment as a member of the staff of the AER commences on 1 July 2026 under the new Statutory Agency; (2) understand that their enterprise agreement coverage continues under the ACCC Enterprise Agreement as read with the transitional modifications, but that this may change in the future; and (3) be aware that new delegation powers and directions will flow from the AER Chair rather than the ACCC Chairperson. For regulated entities (energy businesses, network operators, and other parties subject to AER regulation), compliance with this specific Act is minimal. They need to: (1) update any formal correspondence references from the AER as part of the ACCC to the AER as a standalone body; (2) ensure that any compulsory notices they receive from the AER are signed by a properly delegated AER staff member who is an SES employee or acting SES employee, or by a person assisting the AER who meets that classification; and (3) be aware that the repeal of Part IIIAB may have removed procedural rights they previously had, and review the current law accordingly. For practitioners advising on energy regulation, the primary compliance step is to read the CCA as amended by this Act, focusing on the new sections 44AAC through 44AACB, the amended sections 44AAFA and 44AAH, and the removal of Part IIIAB. Any advice that relies on the pre-amendment text should be reviewed for continued accuracy. The transitional rules may also impose additional requirements, so practitioners should monitor the Federal Register of Legislation for any legislative instruments made under clause 7 of Schedule 2.