Economic Regulation Authority Act 2003 (Western Australia)

Mechanically, the Economic Regulation Authority Act 2003 (WA) establishes a statutory body, the Economic Regulation Authority (the Authority or ERA), and sets out its corporate status, governance, staffing, finance, functions, inquiry powers, information‑gathering powers, confidentiality protections, offences and penalties, and how it interacts with particular sectoral Acts (notably energy, rail and water statutes). The Act: creates the Authority as a body corporate and an agent of the State (ss 4-5); requires a governing body with a chairman and other members appointed by the Governor on the Minister’s nomination (ss 6-7); prescribes the appointment and role of a chief employee responsible for day‑to‑day operations (ss 14-18); and makes provision for staff, the use of government services and facilities, and financial arrangements including an Authority bank account and borrowing from the Treasurer (ss 19-24).

Substantively, the Act gives the Authority inquiry, reporting and regulatory functions under this Act and under specified sectoral legislation (s 25). The Minister may refer matters for inquiry or report on regulated industries (as defined) and on other industries, and the Authority must conduct inquiries and report (ss 31-42). The Act gives the Authority statutory powers to compel attendance, production of documents and answers under oath for the purposes of an inquiry (s 47), and separate power to require information or documents more generally where the Authority “has reason to believe” they may assist its functions (s 51). The Act sets criminal penalties for failure to comply with summonses or information notices, for providing false or misleading information, for intimidation of witnesses or participants, and for breaches of confidentiality by members or staff (ss 48, 52, 57, 58).

The Act defines limits on Ministerial control and sets transparency requirements for directions given by the Minister to the Authority (s 28). It preserves the Authority’s independence in performance of its functions except for directions about administrative matters; those directions must be published and laid before Parliament (s 28(1)-(6)). It also restricts the Authority’s delegation of some inquiry and reporting powers (s 29(2)). The Act contains practical governance rules such as conflict‑of‑interest disclosure obligations for members (s 30), meeting rules (Sch. 1), statutory immunity for members and staff acting in good faith (s 56), and obligations for separate financial records where the Authority performs functions under different written laws (s 24).

CrestWestern Australia

Economic Regulation Authority Act 2003

Reprinted under the Reprints Act 1984 as
at 4 April 2014

Western Australia

Economic Regulation Authority Act 2003

Contents

Part 1 — Preliminary

Short title 2
Commencement 2
Terms used 2

Part 2 — Economic Regulation Authority

Economic Regulation Authority established 4
Status 4
Management of Authority 4
Members 4
Term of office 5
Casual vacancy 5
Alternate chairman 6
Alternate members 7
Remuneration and conditions of members 7
Meetings of governing body 8

Part 3 — Administration

Division 1 — Chief employee

Chief employee 9
Term of office 9
Casual vacancy 9
Remuneration and conditions of chief employee 10
Appointment of public service officer 10

Division 2 — Other staff and facilities

Other staff 11
Use of government staff and facilities 11

Division 3 — Financial provisions

Bank account 12
Borrowing from Treasurer 13
Application of Financial Management Act 2006 and Auditor General Act 2006 13
Separate financial records 14

Part 4 — Functions of Authority

Functions 15
Authority to have regard to certain matters 15
Powers 16
Independence of Authority 16
Delegation 17
Conflict of interest 18

Part 5 — References

Division 1 — References on regulated industries

Term used: reference 19
References 19
Amendment or withdrawal of reference 20
Notice of reference, amendment or withdrawal 20
Authority to conduct inquiry 21
Reports 21

Division 2 — References on other industries

Term used: reference 21
References 21
Amendment or withdrawal of reference 22
Notice of reference, amendment or withdrawal 22
Authority to conduct inquiry 22
Reports 22
Preparation of reports for purposes of s. 42(2) 23

Division 3 — General

Term used: inquiry 23
Authority to act through a member or members when conducting inquiry 23
Conduct of inquiry 24
Powers relating to inquiry 24
Offences in relation to inquiry 25
Incriminating answers or documents 26
Protection for person assisting Authority 26

Part 6 — Collection and use of information

Power to obtain information and documents 27
Offences 27
Incriminating information or documents 28
Protection for person giving information or document 28
Restriction on disclosure of confidential information 28

Part 7 — Miscellaneous

Protection from liability for wrongdoing 30
Confidentiality 30
Intimidation 31
Execution of documents 31
Supplementary provision about laying documents before Parliament 32
Regulations 33
Review of Act 33

Schedule 1 — Meetings of governing body

Term used: meeting 35
Application 35
General procedure 35
Presiding member 35
Quorum 35
Voting 35
Minutes 36
Resolution without meeting 36
Holding meetings remotely 36
Leave of absence from meetings 36

Notes

Compilation table 37

Defined terms

Crest Reprinted under the Reprints Act 1984 as
at 4 April 2014

Western Australia

Economic Regulation Authority Act 2003

An Act to establish the Economic Regulation Authority with inquiry, reporting, access regulation, licensing and other functions in respect of certain industries, to make consequential and other amendments to various Acts 2, and for related purposes.

Part 1 — Preliminary

1. Short title

This Act may be cited as the Economic Regulation Authority Act 2003 1.

2. Commencement

(1) Except as stated in subsection (3), this Act comes into operation on a day fixed by proclamation 1.

(2) Different days may be fixed under subsection (1) for different provisions.

(3) Sections 25(b) and 63(2) 3 and Schedule 4 3 come into operation on the day on which Schedule 2 Division 4 4 comes into operation 1.

3. Terms used

In this Act, unless the contrary intention appears —

Authority means the Economic Regulation Authority established by section 4(1);

chairman means the person appointed under section 6(1)(a) and includes an alternate chairman appointed under section 10;

chief employee means the chief employee of the Authority under section 14;

functions, in relation to the Authority, means its functions under this Act or any other written law;

governing body means the governing body of the Authority referred to in section 6;

member means a member of the governing body and includes an alternate member appointed under section 11;

price means any charge, fee, rate, tariff, or other valuable consideration (however described), but does not include —

(a) any local government rate or charge; or

(b) any land tax, pay‑roll tax, or other duty or tax payable under a written law;

public sector employee means an employee as defined in section 3(1) of the Public Sector Management Act 1994;

regulated industry means —

(a) the electricity industry; or

(b) the gas industry; or

(d) the water industry; or

(e) any other industry prescribed for the purposes of this definition;

staff member means —

(a) the chief employee; or

(b) a public service officer referred to in section 19; or

(d) a person engaged or appointed under section 100 of the Public Sector Management Act 1994 for the purposes of the Authority.

[Section 3 amended: No. 12 of 2008 Sch. 1 cl. 7.]

Part 2 — Economic Regulation Authority

4. Economic Regulation Authority established

(1) A body called the Economic Regulation Authority is established.

(2) The Authority is a body corporate with perpetual succession.

(3) Proceedings may be taken by or against the Authority in its corporate name.

5. Status

The Authority is an agent of the State and has the status, immunities and privileges of the State.

6. Management of Authority

(1) The Authority is to have a governing body consisting of —

(a) one member appointed as the chairman of the governing body; and

(b) such other members, if any, as the Governor considers necessary for the proper performance of the Authority’s functions.

(2) The governing body, in the name of the Authority, is to determine the policies of, control the affairs of, and otherwise perform the functions of, the Authority.

7. Members

(1) The members are to be appointed by the Governor on the nomination of the Minister and are to be persons who, in the opinion of the Minister, have knowledge or experience relevant to the functions of the Authority in industry, commerce, economics, law, public administration or consumer advocacy.

(2) A person cannot be appointed or hold office as a member if the person is a public sector employee.

(3) The chairman must be appointed on a full‑time basis.

(4) A member other than the chairman need not be appointed on a full‑time basis.

8. Term of office

(1) The term for which a person is appointed to be a member must be fixed in the instrument of appointment and must be not more than 5 years.

(2) A person’s eligibility for reappointment or the term for which a person may be reappointed is not affected by an earlier appointment.

(3) A person whose term of office expires may continue to perform the functions of the office for not more than 3 months after the term of office expires until another appointment to the office comes into effect unless the Minister, by notice in writing given to the person, otherwise directs.

9. Casual vacancy

(1) A member may resign from office by notice in writing given to the Minister.

(2) The Governor may remove a person who is a member from office on the grounds of —

(a) mental or physical incapacity to carry out the person’s duties in a satisfactory manner; or

(b) the person being an insolvent under administration within the meaning of that term in the Corporations Act 2001 of the Commonwealth; or

(d) misconduct; or

(e) incompetence; or

(f) the person’s absence, without leave or reasonable excuse, from 3 consecutive meetings of the governing body of which the person had notice.

(3) If, before the term of office for which a person was appointed as a member expires, the person dies, resigns, becomes a public sector employee, or is removed from office, the office becomes vacant.

10. Alternate chairman

(1) If the chairman is unable to act because of sickness, absence, disqualification under section 30(2) or other cause, or if there is no chairman, the Governor may appoint a person nominated by the Minister as the alternate chairman to act in the chairman’s place.

(2) A person can only be nominated for the purposes of subsection (1) if, in the opinion of the Minister, the person has knowledge or experience of the kind described in section 7(1).

(3) A person who is a public sector employee can be appointed as the alternate chairman.

(4) The alternate chairman need not be appointed on a full‑time basis.

(5) If the chairman is disqualified under section 30(2) in relation to a matter, the alternate chairman may perform functions of the chairman in relation to that matter even though the chairman is at the same time performing functions in relation to another matter.

(6) While acting in accordance with the appointment the alternate chairman is to be taken to be the chairman.

(7) An act or omission of the alternate chairman cannot be questioned on the ground that the occasion for the alternate chairman’s appointment or acting had not arisen or had ceased.

(8) The appointment of a person as the alternate chairman may be terminated at any time by the Governor.

11. Alternate members

(1) If a member, other than the chairman, is unable to act because of sickness, absence, disqualification under section 30(2) or other cause, the Governor may appoint a person nominated by the Minister as an alternate member to act in the member’s place.

(2) A person can only be nominated for the purposes of subsection (1) if, in the opinion of the Minister, the person has knowledge or experience of the kind described in section 7(1).

(3) A person who is a public sector employee can be appointed as an alternate member.

(4) If a member is disqualified under section 30(2) in relation to a matter, an alternate member may perform functions of the member in relation to that matter even though the member is at the same time performing functions in relation to another matter.

(5) While acting in accordance with the appointment the alternate member is to be taken to be a member.

(6) An act or omission of an alternate member cannot be questioned on the ground that the occasion for the alternate member’s appointment or acting had not arisen or had ceased.

(7) The appointment of a person as an alternate member may be terminated at any time by the Governor.

12. Remuneration and conditions of members

(1) The remuneration and allowances and other conditions of office of a member are to be determined by the Governor on the recommendation of the Public Sector Commissioner.

(2) Subsection (1) has effect subject to the Salaries and Allowances Act 1975 if that Act applies to the member.

(3) The remuneration and allowances and conditions of office of a member must not be varied while the member is in office so as to become less favourable to the member.

[Section 12 amended: No. 39 of 2010 s. 89.]

13. Meetings of governing body

Schedule 1 has effect with respect to meetings of the governing body.

Part 3 — Administration

Division 1 — Chief employee

14. Chief employee

(1) Despite section 44(1) of the Public Sector Management Act 1994, the Authority is to have a chief employee.

(2) The chief employee is to be appointed by the Authority.

(3) The chief employee is not, and is not to become, a member of the Senior Executive Service within the meaning of the Public Sector Management Act 1994.

(4) For the purposes of paragraph (b) of the definition of employing authority in section 5(1) of the Public Sector Management Act 1994, the governing body is the employer of the chief employee.

(5) The chief employee is responsible for, and has the powers needed to administer, the day to day operations of the Authority, but is to comply with any directions given by the governing body.

15. Term of office

(1) The term for which a person is appointed to be the chief employee is to be fixed in the instrument of appointment and is to be not longer than 5 years.

(2) A person’s eligibility for reappointment or the term for which a person may be reappointed is not affected by an earlier appointment.

16. Casual vacancy

(1) The chief employee may resign from office by notice in writing given to the chairman.

(2) The governing body may remove a person who is the chief employee from office on the grounds of —

(a) mental or physical incapacity to carry out the person’s duties in a satisfactory manner; or

(b) the person being an insolvent under administration within the meaning of that term in the Corporations Act 2001 of the Commonwealth; or

(d) misconduct; or

(e) incompetence.

(3) If, before the term of office for which a person was appointed as chief employee expires, the person dies, resigns, or is removed from office, the office becomes vacant.

17. Remuneration and conditions of chief employee

(1) The remuneration and allowances and other conditions of office of the chief employee are to be determined by the Authority.

(2) Subsection (1) has effect subject to the Salaries and Allowances Act 1975 if that Act applies to the chief employee.

18. Appointment of public service officer

(1) In this section —

public service officer has the same meaning as it has in the Public Sector Management Act 1994.

(2) If, immediately before appointment as the chief employee, a person was a public service officer, the person —

(a) retains existing and accruing rights as if service as the chief employee were a continuation of service as a public service officer; and

(b) is entitled, if the term of office for which the person was appointed as chief employee expires and the person is not reappointed, to be appointed to an office in the Public Service not lower in status than the office occupied by the person before being appointed as chief employee.

(3) If a person ceases to be the chief employee and becomes a public service officer, the person’s service as the chief employee is to be regarded as service in the Public Service for the purposes of determining the person’s rights as a public service officer.

Division 2 — Other staff and facilities

19. Other staff

Public service officers are to be appointed or made available under Part 3 of the Public Sector Management Act 1994 to enable the Authority to perform its functions.

20. Use of government staff and facilities

(1) The Authority may by arrangement with the relevant employer make use, either full‑time or part‑time, of the services of any officer or employee —

(a) in the Public Service; or

(b) in a State agency or instrumentality; or

other than an officer or employee of a party to an access agreement or of a relevant entity.

(2) The Authority may by arrangement with —

(a) a department of the Public Service that is not a party to an access agreement; or

(b) a State agency or instrumentality that is not a party to an access agreement or a relevant entity,

make use of any facilities of the department, agency or instrumentality.

(3) An arrangement under subsection (1) is to provide, without limiting its other provisions, that while the Authority is making use of the services of an officer or employee —

(a) the Authority has authority to control and supervise the officer to the exclusion of any person who would normally have any such authority; and

(b) the salary and allowances of the officer are to be paid out of money available to the Authority for that purpose.

(4) Subject to subsection (3), an arrangement under subsection (1) or (2) is to be made on terms agreed to by the parties.

(5) In this section —

access agreement has the same meaning as it has in the Railways (Access) Act 1998;

relevant entity means —

(a) a body established by or under the Water Corporations Act 1995 section 4, namely —

(i) the Water Corporation; or

(ii) the Bunbury Water Corporation; or

(iii) the Busselton Water Corporation; or

(iv) a body established by the Governor;

[(b) deleted]

[Section 20 amended: No. 18 of 2005 s. 139; No. 25 of 2012 s. 209(2) and (3); No. 25 of 2013 s. 38.]

Division 3 — Financial provisions

21. Bank account

(1) The Authority is to have an account at a bank approved by the Treasurer.

(2) The account is to be called the “Economic Regulation Authority Account”.

(3) The account is to be —

(a) credited with all funds received by, made available to, or payable to, the Authority including —

(i) money appropriated by Parliament; and

(ii) fees referred to in section 61(2);

and

(b) charged with all expenditure incurred under this Act or any other written law to enable the functions of the Authority to be performed, including the remuneration and allowances referred to in section 12 and the salary and allowances referred to in section 20(3)(b).

22. Borrowing from Treasurer

The Authority may borrow from the Treasurer any amounts approved by the Treasurer on terms and conditions relating to repayment and payment of interest imposed by the Treasurer.

23. Application of Financial Management Act 2006 and Auditor General Act 2006

(1) The provisions of the Financial Management Act 2006 and the Auditor General Act 2006 regulating the financial administration, audit and reporting of statutory authorities apply to and in respect of the Authority and the Authority’s operations.

(2) Despite subsection (1), any requirement under the Treasurer’s instructions (issued under section 78 of the Financial Management Act 2006) that the Authority prepare performance indicators is to be limited to the Authority’s management functions (including financial management), is not to apply to the performance of any other function of the Authority and need only be complied with to the extent practicable.

(3) Despite subsection (1), section 40 of the Financial Management Act 2006 does not apply in respect of the Authority, but the expenditure that may be incurred to enable the functions of the Authority under a particular written law to be performed in any one financial year is limited to the amount specified by the Minister under this subsection in respect of that written law for that year.

[Section 23 amended: No. 28 of 2006 s. 411; No. 77 of 2006 Sch. 1 cl. 48(1)-(3).]

24. Separate financial records

The Authority must cause separate records to be kept of expenditure incurred in respect of each written law under which it has functions.

[Section 24 amended: No. 77 of 2006 Sch. 1 cl. 48(4).]

Part 4 — Functions of Authority

25. Functions

The functions of the Authority are —

(a) the inquiry, reporting and other functions it is given by this Act; and

(b) the functions referred to in section 11AA of the Energy Coordination Act 1994; and

(d) the functions referred to in section 20(1) of the Railways (Access) Act 1998; and

(e) the functions referred to in the Water Services Act 2012 section 207; and

(f) the functions it is given by or under any other enactment.

[Section 25 amended: No. 16 of 2009 s. 53; No. 25 of 2012 s. 209(4).]

26. Authority to have regard to certain matters

(1) In performing its functions, other than the functions described in section 25(c) and (d), the Authority must have regard to —

(a) the need to promote regulatory outcomes that are in the public interest;

(b) the long‑term interests of consumers in relation to the price, quality and reliability of goods and services provided in relevant markets;

(d) the legitimate business interests of investors and service providers in relevant markets;

(e) the need to promote competitive and fair market conduct;

(f) the need to prevent abuse of monopoly or market power;

(g) the need to promote transparent decision‑making processes that involve public consultation.

(2) The Authority has a discretion as to the weight it gives to each of the matters referred to in subsection (1) in the performance of a particular function.

(3) Nothing in subsection (1) limits a provision of another written law that requires the Authority, in performing a particular function, to have regard to, or take into account, particular objectives, considerations or other matters.

(4) If there is any conflict or inconsistency between subsection (1) and a provision described in subsection (3), the latter provision prevails to the extent of the conflict or inconsistency.

27. Powers

(1) The Authority may do all things necessary or convenient to be done for or in connection with the performance of its functions.

(2) Without limiting subsection (1), the Authority may produce and publish information on matters relating to its functions.

28. Independence of Authority

(1) Except as provided in subsection (2), the Authority is independent of direction or control by the State or any Minister or officer of the State in the performance of the Authority’s functions.

(2) The Minister may give directions in writing to the Authority to the extent allowed by subsection (3), and the Authority must give effect to any such direction.

(3) Directions under subsection (2) —

(a) can only relate to general policies to be followed by the Authority in matters of administration, including financial administration; and

(b) cannot constrain the Authority with respect to the performance of any function given by or under the National Gas Access (WA) Act 2009 or referred to in section 20(1) of the Railways (Access) Act 1998.

(4) Nothing in this section affects the operation of section 8(2) of the Public Sector Management Act 1994.

(5) Within 14 days after a direction is given under subsection (2), the Authority —

(a) must cause the text of the direction to be published in the Gazette; and

(b) if the direction relates to a matter of administration under the National Gas Access (WA) Act 2009, must send a copy of the direction to the Australian Energy Market Commission established by section 5 of the Australian Energy Market Commission Establishment Act 2004 of South Australia.

(6) The Minister must cause the text of any direction under subsection (2) to be laid before each House of Parliament, or dealt with under section 60, within 14 days after the direction is given.

(7) The text of a direction under subsection (2) must be included in the annual report submitted by the accountable authority of the Authority under Part 5 of the Financial Management Act 2006.

[Section 28 amended: No. 77 of 2006 Sch. 1 cl. 48(5); No. 16 of 2009 s. 54.]

29. Delegation

(1) Subject to subsection (2), the Authority may delegate to a member or a staff member any power or duty of the Authority under another provision of this Act or under any other written law.

(2) The Authority cannot delegate a power or duty of the Authority under section 35, 36, 41 or 42.

(3) A delegation must be in writing executed by the Authority.

(4) A person to whom a power or duty is delegated under this section cannot delegate that power or duty.

(5) A person exercising or performing a power or duty that has been delegated to the person under this section, is to be taken to do so in accordance with the terms of the delegation unless the contrary is shown.

(6) Nothing in this section limits the ability of the Authority to perform a function through a staff member or an agent.

30. Conflict of interest

(1) A member must inform the Minister in writing of —

(a) any direct or indirect interest that the member has or acquires in any business, or in any body corporate carrying on business, in Australia or elsewhere; or

(b) any other direct or indirect interest that the member has or acquires that conflicts or may conflict with the member’s duties.

Penalty: $10 000.

(2) The Minister may —

(a) direct the member to resolve a conflict between a direct or indirect interest and a duty of the member in relation to a particular matter; and

(b) if the conflict is not resolved to the Minister’s satisfaction, disqualify the member from acting in relation to the matter.

Part 5 — References

Division 1 — References on regulated industries

31. Term used: reference

In this Division —

reference means a notice under section 32(1).

32. References

(1) The Minister may, by written notice, refer to the Authority for an inquiry any matter relating to a regulated industry other than a matter governed by the operation of the National Gas Access (Western Australia) Law or the Code in force under section 4 of the Railways (Access) Act 1998.

(2) Without limiting subsection (1), the matters that can be referred to the Authority include —

(a) prices and pricing policy in respect of goods and services provided in the industry concerned; and

(b) quality and reliability of goods and services provided in the industry concerned; and

(d) costs of compliance with written laws that apply to the industry concerned.

(3) Before referring a matter to the Authority under subsection (1) the Minister must consult with the Authority.

(4) A reference —

(a) must specify the terms of reference for the inquiry; and

(b) may require the inquiry to be conducted on an annual or other periodic basis; and

(c) may specify the nature and degree of public consultation that is to be undertaken for the purposes of the inquiry; and

(d) may specify a period within which the Authority must submit a report to the Minister under section 36(1); and

(e) may require the Authority to make a draft report publicly available or available to specified persons or bodies.

[Section 32 amended: No. 16 of 2009 s. 55.]

33. Amendment or withdrawal of reference

The Minister may, by written notice given to the Authority, amend or withdraw a reference at any time before the Minister has received from the Authority a report under section 36(1) in respect of the reference.

34. Notice of reference, amendment or withdrawal

(1) The Authority must publish notice of any reference, or the amendment or withdrawal of any reference —

(a) in the Gazette; and

(b) in a daily newspaper circulating generally in the State; and

(2) Notice of a reference must specify —

(a) the terms of reference for the inquiry; and

(b) the period during which the inquiry is to be held; and

(c) the period within which, and the form in which, members of the public may make submissions, including details of any public hearings; and

(d) the matters that the Authority would like submissions to deal with.

(3) Notice of an amendment of a reference must give particulars of the amendment.

35. Authority to conduct inquiry

The Authority must conduct an inquiry into any matter referred to the Authority under section 32(1).

36. Reports

(1) The Authority must submit a report to the Minister on the outcome of the inquiry.

(2) The Authority must identify in the report any information contained in the report that the Authority considers is of a confidential or commercially sensitive nature.

(3) The Minister must cause a copy of the report (excluding any information identified under subsection (2)) to be laid before each House of Parliament, or dealt with under section 60, within 28 days after the Minister receives the report.

(4) If information is excluded from a copy of the report because of its confidential or commercially sensitive nature, the copy of the report must contain a statement to that effect at the place in the report where the information excluded would have otherwise appeared.

Division 2 — References on other industries

37. Term used: reference

In this Division —

reference means a notice under section 38(1).

38. References

(1) The Minister may, by written notice, refer to the Authority for —

(a) an inquiry; or

(b) a report,

any matter relating to an industry that is not a regulated industry.

(2) Without limiting subsection (1), the matters that can be referred to the Authority include the matters described in section 32(2).

(3) Before referring a matter to the Authority under subsection (1) the Minister must consult with the Authority.

(4) A reference —

(a) must specify the terms of reference for the inquiry or report; and

(b) may specify the nature and degree of public consultation that is to be undertaken for the purposes of the inquiry or report; and

(d) may require the Authority to make a draft report publicly available or available to specified persons or bodies.

39. Amendment or withdrawal of reference

The Minister may, by written notice given to the Authority, amend or withdraw a reference at any time before the Minister has received from the Authority a report under section 42(1) or (2) in respect of the reference.

40. Notice of reference, amendment or withdrawal

The Minister may, but is not required to, cause notice of any reference, or the amendment or withdrawal of any reference, to be published in the Gazette or in some other manner.

41. Authority to conduct inquiry

The Authority must conduct an inquiry into any matter referred to the Authority under section 38(1)(a).

42. Reports

(1) If a matter is referred to the Authority under section 38(1)(a) the Authority must submit a report to the Minister on the outcome of the inquiry.

(2) If a matter is referred to the Authority under section 38(1)(b) the Authority must submit a report to the Minister on the matter.

(3) The Authority must identify in a report under subsection (1) or (2) any information contained in the report that the Authority considers is of a confidential or commercially sensitive nature.

(4) The Minister must cause a copy of the report, excluding any information identified under subsection (3), to be laid before each House of Parliament within 28 days after the Minister receives the report.

(5) If information is excluded from a copy of the report made available under subsection (4) because of its confidential or commercially sensitive nature, the copy of the report must contain a statement to that effect at the place in the report where the information excluded would have otherwise appeared.

43. Preparation of reports for purposes of s. 42(2)

In preparing a report for the purposes of section 42(2), the Authority may inform itself on any matter in any manner it considers appropriate.

Division 3 — General

44. Term used: inquiry

In this Division —

inquiry means an inquiry under Division 1 or 2.

45. Authority to act through a member or members when conducting inquiry

(1) In conducting an inquiry the Authority is to act through a member or members specified by the chairman.

(2) Any 2 or more members through whom the Authority conducts an inquiry do not act as the governing body, and Schedule 1 does not apply to their proceedings and deliberations.

(3) The Authority may conduct an inquiry through a member or members even though it is at the same time conducting another inquiry through any other member or members.

46. Conduct of inquiry

(1) In conducting an inquiry the Authority —

(a) is to act with as little formality as possible; and

(b) is not bound by the rules of evidence and may inform itself on any matter in any manner it considers appropriate; and

(d) may establish working groups and task forces.

(2) The Authority —

(a) has a discretion as to whether any person may appear before the Authority in person or be represented by another person; and

(b) may determine that proceedings, or any part of proceedings, before the Authority are to be held in private if the Authority is satisfied that —

(i) it is in the public interest to do so; or

(ii) the evidence is of a confidential or commercially sensitive nature.

(3) Except as otherwise stated in this Division, the Authority may conduct an inquiry in any manner it considers appropriate.

47. Powers relating to inquiry

For the purposes of an inquiry, the Authority may —

(a) by summons signed on behalf of the Authority by a member or the chief employee, require any person —

(i) to attend before the Authority; or

(ii) to produce any document specified in the summons to the Authority;

(b) inspect any document produced, and retain it for any reasonable period that the Authority thinks appropriate, and make copies of the document or any of its contents; or

(c) require any person to swear to truly answer any relevant question put to that person by the Authority or any person appearing before the Authority (and for that purpose a member may administer an oath or affirmation); or

(d) require any person attending before the Authority to answer any relevant question put to that person by the Authority or any person appearing before the Authority.

48. Offences in relation to inquiry

A person must not —

(a) having been served with a summons under section 47 to attend before the Authority, fail without reasonable excuse (proof of which lies upon the person) to attend in obedience to the summons; or

(b) having been served with a summons under section 47 to produce any document, fail without reasonable excuse (proof of which lies upon the person) to comply with the summons; or

(i) to swear; or

(ii) to answer any question,

when required under section 47 to do so; or

(d) give to the Authority any answer or other information that the person knows to be false or misleading in a material particular; or

(e) wilfully insult the Authority or a member, or interrupt or obstruct the conduct of an inquiry.

Penalty: $10 000.

49. Incriminating answers or documents

An individual is not excused from complying with a requirement under section 47 on the ground that the answer to a question or the production of a document might incriminate the individual or render the individual liable to a penalty, but neither —

(a) an answer given by the individual that was given to comply with the requirement; nor

(b) the fact that a document produced by the individual to comply with the requirement was produced,

is admissible in evidence in any civil or criminal proceedings against the individual other than proceedings for an offence against section 48(d).

50. Protection for person assisting Authority

A person is not liable in any way for any loss, damage or injury suffered by another person because of the giving in good faith of information, or the production in good faith of a document, to the Authority for the purposes of an inquiry or report, whether or not the information is given, or the document is produced, in connection with a written submission or a public hearing.

Part 6 — Collection and use of information

51. Power to obtain information and documents

(1) If the Authority has reason to believe that a person has information or a document that may assist the Authority in the performance of its functions, the Authority may require the person to give the Authority the information or a copy of a document.

(2) The reference in subsection (1) to functions does not include —

(a) the functions described in section 25(c) and (d); or

(b) the function of preparing a report for the purposes of section 42(2).

(3) A requirement under this section must be made in a written notice that —

(a) identifies the information or document concerned; and

(b) states that the requirement is made under this section; and

(d) specifies the form in which the information or copy of the document must be given to the Authority.

(4) The notice must be accompanied by a copy of this section.

52. Offences

(1) A person must not fail without reasonable excuse (proof of which lies on the person) to comply with a requirement under section 51.

Penalty: $10 000 or imprisonment for 12 months.

(2) A person must not, in purported compliance with a requirement under section 51, give to the Authority information that the person knows to be false or misleading in a material particular.

Penalty: $10 000 or imprisonment for 12 months.

53. Incriminating information or documents

An individual is not excused from complying with a requirement under section 51 on the ground that the giving of information or a document might incriminate the individual or render the individual liable to a penalty, but neither —

(a) information given by the individual that was given to comply with the requirement; nor

(b) the fact that a document given by the individual to comply with the requirement was given,

is admissible in evidence in any civil or criminal proceedings against the individual other than proceedings for an offence against section 52(2).

54. Protection for person giving information or document

A person is not liable in any way for any loss, damage or injury suffered by another person because of the giving in good faith of information or a document to the Authority under section 51.

55. Restriction on disclosure of confidential information

(1) This section applies if information or a document is given to the Authority under section 47 or 51 and, at the time it is given, the person giving it states that it is of a confidential or commercially sensitive nature.

(2) The Authority must not disclose the information or the contents of the document to any person unless the Authority is of the opinion —

(a) that the disclosure of the information or document would not cause detriment to the person giving it or another person; or

(b) that, although the disclosure of the information or document would cause detriment to the person giving it or another person, the public benefit in disclosing it outweighs that detriment.

(3) Subsection (2) does not prevent the Authority —

(a) from disclosing information or the contents of a document to a staff member; or

(b) from using information or a document for the purposes of civil or criminal proceedings.

(4) For the purposes of this section, the disclosure of anything that is already in the public domain at the time the Authority wishes to disclose it cannot cause detriment to a person.

(5) In this section —

given, in relation to a document, includes produced.

Part 7 — Miscellaneous

56. Protection from liability for wrongdoing

(1) An action in tort does not lie against a member or a staff member for anything that the person has done, in good faith, in the performance or purported performance of a function under this Act or any other written law.

(2) The protection given by subsection (1) applies even though the thing done as described in that subsection may have been capable of being done whether or not this Act or any other written law had been enacted.

(3) Despite subsection (1), neither the Authority nor the State is relieved of any liability that it might have for another person having done anything as described in that subsection.

(4) In this section, a reference to the doing of anything includes a reference to an omission to do anything.

57. Confidentiality

(1) This section applies to a person who is or has been a member or a staff member.

(2) A person to whom this section applies must not, directly or indirectly, record, disclose or make use of any information obtained in the course of duty except —

(a) for the purpose of performing functions under this Act or another written law; or

(b) as required or allowed by this Act or under another written law; or

(d) in other prescribed circumstances.

Penalty: $10 000 or imprisonment for 12 months.

(3) Subsection (2) does not apply to the disclosure of any summary or statistical information that could not reasonably be expected to enable particulars relating to any person to be ascertained.

58. Intimidation

A person must not —

(a) threaten, intimidate or coerce another person; or

(b) take, threaten to take, incite or be involved in any action that causes another person to suffer any loss, injury or disadvantage,

because the person referred to in paragraph (a) or (b) or any other person —

(d) has complied, is complying or may comply with a requirement under section 51.

Penalty: $10 000 or imprisonment for 12 months.

59. Execution of documents

(1) The Authority is to have a common seal.

(2) A document is duly executed by the Authority, if —

(a) the common seal of the Authority is affixed to it in accordance with subsections (3) and (4); or

(b) it is signed on behalf of the Authority by a person or persons authorised to do so under subsection (5).

(3) The common seal of the Authority is not to be affixed to any document except as authorised by the Authority.

(4) The common seal of the Authority is to be affixed to a document in the presence of —

(a) the chairman, if the governing body consists of the chairman;

(b) 2 members, if the governing body consists of more than one member,

and the chairman or each member, as the case requires, is to sign the document to attest that the common seal was so affixed.

(5) The Authority may, by writing under its common seal, authorise a member or members or a staff member or staff members to sign documents on behalf of the Authority, either generally or subject to such conditions or restrictions as are specified in the authorisation.

(6) A document purporting to be executed in accordance with this section is to be presumed to be duly executed until the contrary is shown.

(7) When a document is produced bearing a seal purporting to be the common seal of the Authority, it is to be presumed that the seal is the common seal of the Authority until the contrary is shown.

60. Supplementary provision about laying documents before Parliament

(1) If a provision of this Act requires the Minister to cause a document to be laid before each House of Parliament, or dealt with under this section, within a period and —

(a) at the commencement of the period, a House of Parliament is not sitting; and

(b) the Minister is of the opinion that the House will not sit during that period,

the Minister must transmit a copy of the document to the Clerk of that House.

(2) A copy of a document transmitted to the Clerk of a House is taken to have been laid before that House.

(3) The laying of a copy of a document that is taken to have occurred under subsection (2) is to be recorded in the Minutes, or Votes and Proceedings, of the House on the first sitting day of the House after the Clerk received the copy.

[Section 60 amended: No. 8 of 2009 s. 48.]

61. Regulations

(1) The Governor may make regulations prescribing all matters that are required or permitted by this Act to be prescribed, or are necessary or convenient to be prescribed for giving effect to the purposes of this Act.

(2) Without limiting subsection (1), regulations may make provision for and in relation to the imposition and payment of fees and charges in connection with the performance of the Authority’s functions.

(3) If it is inappropriate to prescribe a set fee or charge in connection with the performance of a particular function, the regulations may provide for the method of calculating the fee or charge, including calculation according to the cost of performing the function.

(4) A fee or charge imposed under subsection (2), or a method of calculation provided for under subsection (3), in connection with the performance of a function under a particular written law is not to allow the recovery of expenditure attributable, or to the extent that it is attributable, to the performance of a function under another written law.

[62. Omitted under the Reprints Act 1984 s. 7(4)(e).]

[63. Omitted under the Reprints Act 1984 s. 7(4)(g).]

64. Review of Act

(1) A Joint Standing Committee of both Houses of Parliament appointed for the purposes of this section must carry out a review of the operation and effectiveness of this Act as soon as is practicable after the expiry of 2 years from the commencement of this section and thereafter at 5 yearly intervals.

(2) In the course of that review the Joint Standing Committee must consider and have regard to —

(a) the effectiveness of the operations of the Authority; and

(b) the need for the continuation of the functions of the Authority; and

(c) any other matters that appear to the Joint Standing Committee to be relevant to the operation and effectiveness of this Act.

(3) The Joint Standing Committee must prepare a report based on the review and, as soon as is practicable after the report is prepared, must cause it to be laid before each House of Parliament.

Schedule 1 — Meetings of governing body

[s. 13]

Term used: meeting

In this Schedule —

meeting means a meeting of the governing body.

Application

This Schedule applies if the governing body consists of more than one member.

General procedure

The procedure for the calling of meetings and for the conduct of business at meetings is, except as otherwise stated in this Schedule, to be determined by the governing body.

Presiding member

(1) The chairman must preside at all meetings at which the chairman is present.

(2) If the chairman is absent from a meeting the members present must appoint one of the members present to preside.

Quorum

A quorum for a meeting is —

(a) 2 members if the governing body consists of 2 members; or

(b) otherwise, at least one half of the number of members in office.

Voting

(1) At a meeting each member present has a deliberative vote.

(2) Subject to subclause (3), if there is an equality of votes on a question, the question remains unresolved until a subsequent meeting.

(3) If, at a subsequent meeting, there is an equality of votes on a question referred to in subclause (2), the question is resolved in the negative.

Minutes

The governing body must cause accurate minutes to be kept of the proceedings at each meeting.

Resolution without meeting

(1) A resolution in writing signed by each member, or assented to by each member by letter, telegram, telex, facsimile transmission or email, has the same effect as if it had been passed at a meeting.

(2) The governing body must cause a record to be kept of each resolution under subclause (1).

Holding meetings remotely

The presence of a member at a meeting need not be by attendance in person but may be by that member and each other member at the meeting being simultaneously in contact by telephone or other means of instantaneous communication.

Leave of absence from meetings

The governing body may, on any terms and conditions it thinks fit, grant a member leave to be absent from a meeting.

[Schedule 2 omitted under the Reprints Act 1984 s. 7(4)(e).]

[Schedules 3 and 4 omitted under the Reprints Act 1984 s. 7(4)(g).]

dline

Notes

1 This reprint is a compilation as at 4 April 2014 of the Economic Regulation Authority Act 2003 and includes the amendments made by the other written laws referred to in the following table. The table also contains information about any reprint.

Compilation table

Short title	Number and year	Assent	Commencement
Economic Regulation Authority Act 2003	67 of 2003	5 Dec 2003	s. 1 and 2: 5 Dec 2003; Act other than s. 1, 2, 25(b), 63(2), Sch. 2 Div. 4 and Sch. 4: 1 Jan 2004 (see s. 2(1) and Gazette 30 Dec 2003 p. 5723); s. 25(b), 63(2), Sch. 2 Div. 4 and Sch. 4: 19 Mar 2004 (see s. 2(3) and Gazette 19 Mar 2004 p. 914)
Electricity Corporations Act 2005 s. 139	18 of 2005	13 Oct 2005	1 Apr 2006 (see s. 2(2) and Gazette 31 Mar 2006 p. 1153)
Machinery of Government (Miscellaneous Amendments) Act 2006 Pt. 17 Div. 2	28 of 2006	26 Jun 2006	1 Jul 2006 (see s. 2 and Gazette 27 Jun 2006 p. 2347)
Financial Legislation Amendment and Repeal Act 2006 Sch. 1 cl. 48	77 of 2006	21 Dec 2006	1 Feb 2007 (see s. 2(1) and Gazette 19 Jan 2007 p. 137)
Duties Legislation Amendment Act 2008 Sch. 1 cl. 7	12 of 2008	14 Apr 2008	1 Jul 2008 (see s. 2(d))
*Reprint 1: The Economic Regulation Authority Act 2003* as at 21 Nov 2008** (includes amendments listed above)
Statutes (Repeals and Miscellaneous Amendments) Act 2009 s. 48	8 of 2009	21 May 2009	22 May 2009 (see s. 2(b))
National Gas Access (WA) Act 2009 Pt. 7 Div. 2	16 of 2009	1 Sep 2009	1 Jan 2010 (see s. 2(b) and Gazette 31 Dec 2009 p. 5327)
Public Sector Reform Act 2010 s. 89	39 of 2010	1 Oct 2010	1 Dec 2010 (see s. 2(b) and Gazette 5 Nov 2010 p. 5563)
Water Services Legislation Amendment and Repeal Act 2012 s. 209	25 of 2012	3 Sep 2012	18 Nov 2013 (see s. 2(b) and Gazette 14 Nov 2013 p. 5028)
Electricity Corporations Amendment Act 2013 s. 38	25 of 2013	18 Dec 2013	1 Jan 2014 (see s. 2(c) and Gazette 27 Dec 2013 p. 6465)
*Reprint 2: The Economic Regulation Authority Act 2003* as at 4 Apr 2014** (includes amendments listed above)

2 The provisions in this Act amending these Acts have been omitted under the Reprints Act 1984 s. 7(4)(e).

3 Section 63 and Schedule 4 have been omitted under the Reprints Act 1984 s. 7(4)(g).

4 Schedule 2 has been omitted under the Reprints Act 1984 s. 7(4)(e).

Defined terms

[This is a list of terms defined and the provisions where they are defined. The list is not part of the law.]

Defined term Provision(s)

access agreement 20(5)

Authority 3

chairman 3

chief employee 3

functions 3

given 55(5)

governing body 3

inquiry 44

meeting Sch. 1 cl. 1

member 3

price 3

public sector employee 3

public service officer 18(1)

reference 31, 37

regulated industry 3

relevant entity 20(5)

staff member 3

Western Australia

Economic Regulation Authority Act 2003

Reprinted under the Reprints Act 1984 as
at 4 April 2014

Western Australia

Economic Regulation Authority Act 2003

Contents

Part 1 — Preliminary

Short title 2
Commencement 2
Terms used 2

Part 2 — Economic Regulation Authority

Economic Regulation Authority established 4
Status 4
Management of Authority 4
Members 4
Term of office 5
Casual vacancy 5
Alternate chairman 6
Alternate members 7
Remuneration and conditions of members 7
Meetings of governing body 8

Part 3 — Administration

Division 1 — Chief employee

Chief employee 9
Term of office 9
Casual vacancy 9
Remuneration and conditions of chief employee 10
Appointment of public service officer 10

Division 2 — Other staff and facilities

Other staff 11
Use of government staff and facilities 11

Division 3 — Financial provisions

Bank account 12
Borrowing from Treasurer 13
Application of Financial Management Act 2006 and Auditor General Act 2006 13
Separate financial records 14

Part 4 — Functions of Authority

Functions 15
Authority to have regard to certain matters 15

Key statutory building blocks are definitions, the dual role of inquiry and regulation, compulsory information powers, and limits on ministerial direction. Definitions: “Authority” means the Economic Regulation Authority (s 3). The Act defines “regulated industry” by reference to electricity, gas, rail, water and any industry prescribed (s 3). “Price” is broadly defined to include any charge, fee, rate, tariff or other valuable consideration, subject to express exclusions (s 3). The Act cross‑references and incorporates functions assigned by other statutes (s 25): functions under the Energy Coordination Act 1994, the National Gas Access (WA) Act 2009, the Railways (Access) Act 1998, the Water Services Act 2012, and any other enactment.

References and inquiries are central. For regulated industries, the Minister may refer matters to the Authority for inquiry (s 32(1)); the Act lists illustrative matters that may be referred, including prices and pricing policy, quality and reliability, investment and business practices, and costs of compliance with written laws (s 32(2)). For other industries the Minister may refer matters for inquiry or report (s 38). A reference must specify terms of reference, public consultation requirements, timing, and may require periodic reporting or the making of draft reports publicly available (ss 32(4), 38(4)). The Authority must publish notice of references for regulated industries (s 34) and must conduct the inquiry (s 35). Reports must be submitted to the Minister and, subject to confidentiality carve outs, laid before Parliament (ss 36, 42).

Information powers are express and coercive. For inquiries the Authority may issue summonses requiring attendance and document production, inspect and retain documents, and require oath or affirmation (s 47). For non‑inquiry uses the Authority may require information or documents where it has reason to believe a person has material that may assist the Authority in performing its functions (s 51). Incriminating information must generally be provided but is protected from admissibility in other proceedings (ss 49, 53), subject to exceptions for offences of false or misleading statements (ss 48(d), 52(2)). Section 55 contains a statutory balancing test on disclosure of material claimed to be confidential or commercially sensitive: the Authority must not disclose unless it is satisfied that disclosure would not cause detriment, or the public benefit in disclosure outweighs the detriment (s 55(2)). Section 55(3) preserves internal use and disclosure for legal proceedings.

Independence and control structures: the Authority is independent of direction or control by the State in performance of its functions, except the Minister may give written directions limited to general administrative policies (s 28(1)-(3)). There are reporting and transparency obligations when a Ministerial direction is given (publication in the Gazette and laying before Parliament within 14 days, and inclusion in annual report) (s 28(5)-(7)). Delegation is allowed broadly but not for the core inquiry/reporting provisions of ss 35, 36, 41 or 42 (s 29).

Sanctions, confidentiality and protections: the Act criminalises non‑compliance with information requirements and contempt‑type conduct before the Authority (ss 48, 52). Members and staff have confidentiality obligations with criminal penalties (s 57). The Act grants statutory immunity for acts or omissions done in good faith in performance of functions (s 56). Protections for persons who provide information in good faith to the Authority are provided (s 50, s 54).

Administrative and financial integration with public sector law is explicit: the chief employee is appointed by the Authority and is not part of the Senior Executive Service but is employed under Public Sector rules (s 14); Public Service officers may be appointed or made available to the Authority (s 19); the Financial Management Act 2006 and Auditor General Act 2006 apply (subject to some limits) (s 23); regulations can prescribe fees for functions and methods of calculation (s 61).

Collectively, the Act creates an investigatory and regulatory architecture that centralises inquiry‑power in the Authority, preserves procedural flexibility (s 46), and combines coercive evidence powers with confidentiality protections and parliamentary accountability requirements.

The Act affects multiple groups in concrete ways by assigning compliance obligations, decision rights, and disclosure or confidentiality outcomes.

The Authority itself (members, chairman, chief employee, staff). The Act prescribes appointment, term limits, meeting rules (Sch. 1), remuneration mechanisms (s 12, s 17), conflict‑of‑interest reporting duties with a penalty (s 30(1)), confidentiality obligations with criminal sanctions (s 57), civil immunities for good‑faith action (s 56) and internal operating rules about delegation and governance (ss 6, 13, 29, Sch. 1).
The Minister and the Governor. The Minister decides whether to make references (ss 32, 38), nominates members for appointment by the Governor (s 7(1)), may give written directions on general administrative policies (s 28), and must lay reports and directions before Parliament (ss 36(3), 28(6)). The Governor formally appoints members and can remove them on specified grounds (ss 7, 9).
Regulated industry participants and other industry players. Entities in electricity, gas, rail, water and any industry prescribed as “regulated” are subject to the reference mechanism for inquiries into prices, quality and reliability, investment and business practices and compliance costs (s 32). The Minister’s references can require public consultation and periodic inquiries (s 32(4)). Parties in other industries may be the subject of references or reports (s 38).
Companies and individuals possessing information relevant to functions. The Authority may summon persons to attend and produce documents (s 47) and may issue written notices to require information under s 51. Failure to comply risks fines and imprisonment (ss 48, 52), and giving false or misleading information also attracts criminal liability (ss 48(d), 52(2)). Individuals retain limited protection against self‑incrimination in the form of non‑admissibility of compelled answers in other proceedings (ss 49, 53), but that protection does not cover prosecutions for giving false or misleading information.
Public sector bodies. The Act requires Public Service officers to be made available to enable the Authority’s functions (s 19) and allows the Authority to use staff and facilities of departments or agencies that are not parties to an access agreement or relevant entity (s 20). The Authority is bound by public sector financial management and audit regimes (s 23).
Parties to access agreements and “relevant entities.” The Act disqualifies officers or employees of a party to an access agreement or of a relevant entity from being made available under s 20(1). “Relevant entity” is defined by reference to specific water corporations and electricity corporations (s 20(5)), which limits use of certain staff and facilities.
Consumers and the public. The Act requires the Authority to have regard to the long‑term interests of consumers, price, quality and reliability, promotion of competition and prevention of abuse of monopoly power when performing its functions (s 26), and mandates public consultation procedures for references (ss 32(4), 34).
Parliament. Parliament receives reports and Ministerial directions; the Minister must lay reports, and the Authority’s reports (less confidential parts) must be laid before each House within specified timeframes (ss 36(3), 42(4)). A Joint Standing Committee is required to review the Act at intervals (s 64), creating a statutory parliamentary oversight mechanism.

Who pays and who decides: the Authority’s expenditure is to be met from its bank account (s 21) which may be credited with Parliamentary appropriation and fees (s 21(3)(a)), and the Authority may borrow from the Treasurer with Treasurer approval (s 22). The Minister nominates members and refers matters; the Authority decides how to conduct inquiries and whether confidential information should be disclosed under s 55.

Statutory duties, decision rights and procedural entitlements are dispersed through the Act. Below are the concrete obligations and powers to which different actors are subject.

Authority duties and rights

Conduct inquiries and prepare reports when the Minister makes a reference under Part 5 (ss 35, 41, 36(1), 42(1)). For regulated industries, the Authority must conduct inquiries into matters referred by the Minister (s 35).
Have regard to specified matters when performing most functions (s 26), including public interest, long‑term consumer interests, encouragement of investment, legitimate business interests, promotion of competition, prevention of market abuse, and transparent decision‑making; the Authority has discretion as to weight (s 26(1)-(2)).
Exercise investigatory powers: summon persons, require production of documents, inspect and retain documents, administer oaths and require answers (s 47).
Require information under s 51 where the Authority has reason to believe a person has material that may assist in performing its functions (s 51(1)).
Decide on public consultation and whether hearings or parts of proceedings are private (s 46(2)).
Publish information and reports, subject to confidentiality carve‑outs and the Authority’s obligation to identify confidential matter (ss 27, 36(2), 36(4), 55).

Member and staff duties and rights

Members must disclose potential conflicts of interest in writing to the Minister and risk a $10,000 penalty for failure to do so (s 30(1)). The Minister may direct a member to resolve a conflict or disqualify the member from acting in relation to a specified matter (s 30(2)).
Members act through the governing body to determine policies and control affairs (ss 6(2), 13; Sch. 1 sets meeting rules).
Members, chairman and staff have confidentiality obligations post‑service with criminal penalties for unauthorised disclosure (s 57), but are protected by statutory immunity for good‑faith acts or omissions in performance of functions (s 56).

Ministerial powers and duties

The Minister may refer matters to the Authority (ss 32, 38) and must consult with the Authority before making a reference (ss 32(3), 38(3)).
The Minister may amend or withdraw a reference before the Authority has reported (ss 33, 39).
The Minister may give directions limited to general administrative policies; such directions must be published in the Gazette and laid before Parliament, and the Authority must give effect to them (s 28(2), (5)-(6)).
The Minister must cause reports (excluding confidential parts) to be laid before Parliament within 28 days of receipt (ss 36(3), 42(4)).

Third‑party duties and rights in relation to inquiries

Persons served with summonses must attend and produce documents, or face criminal penalties for failure to comply (s 48). The penalty for failure to attend, produce documents or to swear/answer without reasonable excuse is $10,000 (s 48).
Persons served with a written notice under s 51 must comply or face a penalty of $10,000 or imprisonment for 12 months (s 52(1)); giving false or misleading information in purported compliance attracts the same penalty (s 52(2)).
Individuals compelled to answer or produce documents are not excused on the ground of self‑incrimination, but compelled answers or documents are not admissible in civil or criminal proceedings against the person other than prosecutions under the Act for giving false or misleading information (ss 49, 53). This is an immunity from admissibility rather than a general privilege.

Confidentiality and disclosure

Where a person provides information or a document to the Authority and says at the time it is confidential or commercially sensitive, the Authority must not disclose unless it forms the opinion that disclosure would not cause detriment or that public benefit outweighs detriment (s 55(1)-(2)). The Act allows internal disclosure to staff and use for civil or criminal proceedings (s 55(3)).
Reports must identify confidential parts (s 36(2), s 42(3)). When confidential material is excluded from a copy laid before Parliament, the copy must include a statement to that effect at the relevant place in the report (ss 36(4), 42(5)).

Administrative and financial duties

The Authority must maintain an approved bank account and keep records of funds credited and charged (s 21). It must keep separate records of expenditure incurred under each written law under which it has functions (s 24).
Financial Management Act 2006 and Auditor General Act 2006 provisions apply, with some limits and qualifications (s 23).
Regulations may impose fees and prescribe methods for calculating fees for the Authority’s functions; fees for one written law must not allow recovery of expenditure attributable to performance of functions under another written law (s 61(2)-(4)).

Decision constraints and immunities

The Minister’s ability to direct is constrained to administrative policy matters and cannot constrain the Authority on functions under the National Gas Access (WA) Act 2009 or functions referred to in s 20(1) of the Railways (Access) Act 1998 (s 28(3)(b)).
Members and staff have immunity from tort actions for good‑faith acts or omissions in performance of functions, but the State and Authority are not absolved of any liability they may have for third parties’ acts (s 56(1)-(3)).

The Act contains several statutory offences, accompanying penalties, and enforcement-related protections. Penalties range from pecuniary penalties to imprisonment for non‑compliance with the Authority’s investigatory powers and for unauthorised disclosure by members and staff.

Offences relating to inquiries and information gathering

Failure to comply with a summons to attend or produce documents for an inquiry is an offence (s 48(a)-(b)). The Act prescribes a penalty of $10,000 for offences under s 48 and related misconduct such as refusing to swear or answer (s 48, penalty stated).
Giving false or misleading information to the Authority during an inquiry is an offence under s 48(d), subject to the same $10,000 penalty.
For information notices under s 51, failure to comply is an offence punishable by $10,000 or imprisonment for 12 months (s 52(1)). Providing false or misleading information in purported compliance with s 51 carries the same penalty (s 52(2)).

Protections for compelled answers and documents

An individual must comply with a summons or information notice even if the answer or document may incriminate the individual, but compelled answers and documents are not admissible in civil or criminal proceedings against the individual other than proceedings for an offence of giving false or misleading information under s 48(d) or s 52(2) (ss 49, 53). The protection is one of non‑admissibility, not a general privilege against compulsion.

Confidentiality and unauthorised disclosure

Members and staff are subject to confidentiality obligations in s 57. A person to whom s 57 applies must not record, disclose or make use of any information obtained in the course of duty except for specified permitted purposes. A breach attracts a penalty of $10,000 or imprisonment for 12 months (s 57(2)).
Section 55 imposes non‑disclosure obligations on the Authority for confidential or commercially sensitive material provided under ss 47 or 51, but gives the Authority discretion to disclose where it forms the opinion that disclosure would not cause detriment or that public benefit outweighs detriment (s 55(2)). This creates an enforcement lever,internal scrutiny within the Authority and exposure to potential legal challenge if disclosure decisions are contentious, although the Act itself provides the discretion.

Intimidation and witness protection

It is an offence to threaten, intimidate, coerce, or cause loss, injury or disadvantage to a person because they have assisted or may assist an inquiry, or complied or may comply with an information notice (s 58). The penalty is $10,000 or imprisonment for 12 months. This is a statutory witness‑protection provision designed to protect the Authority’s evidence‑gathering process.

Administrative remedies and transparency

The Minister must publish and lay before Parliament any direction given to the Authority under s 28 and the Authority must publish the text in the Gazette within 14 days (s 28(5)-(6)). Failure to follow those procedural transparency obligations could result in parliamentary scrutiny, though the Act does not specify a criminal sanction for failure to publish the direction.

Civil immunities and liability

Members and staff enjoy statutory immunity from tort actions for things done in good faith in the performance or purported performance of functions under the Act (s 56). The immunity extends to omissions and applies notwithstanding that the act could have been done irrespective of the Act. The immunity does not, however, absolve the Authority or the State from liability they might otherwise have for the actions of third parties (s 56(3)). This reduces individual legal exposure for regulatory decision‑makers acting in good faith.

Enforcement mechanisms

Enforcement of the criminal penalties is by way of the ordinary criminal process; the Act does not create a specialised enforcement agency. The Authority’s powers to retain documents and make copies (s 47(b)) provide a practical enforcement mechanism in investigations. The non‑admissibility protection for compelled material reduces litigation risk for compelled persons but preserves prosecutorial capacity for offences of false or misleading statements.

Operational consequences

The scale of penalties (notably the option of imprisonment for s 52 and s 57) raises compliance stakes for persons subject to notices or who handle confidential information. The Authority’s ability to compel information combined with the criminal consequences for non‑compliance establishes strong statutory leverage for investigations and inquiries (ss 47, 51, 52).

The Act is drafted to operate in a network of existing public sector and sector‑specific legislation. The text explicitly cross‑references several Acts and sets priorities or exceptions in a number of places.

Public sector law and financial frameworks

The Authority’s employment arrangements are placed within the Public Sector framework: the chief employee is appointed by the Authority and is not part of the Senior Executive Service, but the governing body is the employing authority for purposes of the Public Sector Management Act 1994 (s 14(3)-(4)); public service officers are to be appointed or made available to enable the Authority to perform its functions (s 19). Section 18 protects pre‑existing Public Service rights where a public service officer becomes the chief employee.
The Financial Management Act 2006 and the Auditor General Act 2006 apply to the Authority’s financial administration with specified qualifications. Notably, some Treasurer’s instruction requirements for performance indicators are limited to management functions and need only be complied with to the extent practicable; section 40 of the Financial Management Act 2006 does not apply, but expenditure for particular written law functions is limited to amounts specified by the Minister under s 23(3) (s 23).

Sectoral Acts and limitations on Ministerial control

The Act takes account of the National Gas Access (WA) Act 2009 and the Railways (Access) Act 1998 in at least two ways:
- Section 25( c) and (d) explicitly lists functions that the Authority has under the National Gas Access (WA) Act and functions referred to in s 20(1) of the Railways (Access) Act 1998.
- Section 28(3)(b) prevents the Minister from giving directions that constrain the Authority in relation to functions under the National Gas Access (WA) Act 2009 or those referred to in s 20(1) of the Railways (Access) Act 1998. This creates a statutory carve‑out protecting certain sectoral functions from ministerial administrative direction.
Section 32(1) limits Ministerial references for regulated industries by excluding matters governed by the National Gas Access (Western Australia) Law or the Railways Code in force under s 4 of the Railways (Access) Act 1998, which prevents overlapping referrals on matters already governed by other statutory regime(s).

Regulatory and corporatisation statutes

The Act references the Water Services Act 2012 (s 25(e)) and the Electricity Corporations Act in the definition of “relevant entity” for staff use restrictions (s 20(5)(c)), signalling interdependence with water and electricity corporations’ legislative frameworks.
The Authority’s power to impose fees is constrained so that a fee imposed for a function under one written law may not recover costs attributable to performance of functions under another written law (s 61(4)), preventing cross‑subsidisation of regulatory costs across different statutory functions.

Evidence, privilege and procedural law

The Act sets out its own rules regarding compelled evidence (ss 47-53). Compelled answers and documents are not admissible in other civil or criminal proceedings against the person who provided them, except for prosecution for giving false or misleading information (ss 49, 53). This interacts with general rules of evidence and privilege but establishes a statutory regime for inquiries conducted under this Act.

Employment and secondment

Section 20 permits the Authority to make arrangements with other government employers to use officers or facilities, but excludes officers or employees of a party to an access agreement or of a relevant entity from being made available (s 20(1)). This interacts with access agreement regimes and institutional arrangements in sectoral statutes, limiting the Authority’s ability to second certain individuals.

Regulatory standards and consultation

The Authority is required to have regard to specified matters (s 26), but the Act preserves provisions in other written laws that require the Authority to have regard to particular objectives, and where there is conflict the other written law prevails (s 26(3)-(4)). This preserves sectoral policy priorities set elsewhere and creates a legal hierarchy for competing statutory objectives.

Parliamentary processes

The Act prescribes how Ministerial directions and Authority reports are to be laid before Parliament and provides for alternative transmission to the Clerk if a House is not sitting (s 60). A Joint Standing Committee review is mandated on a timetable (s 64), embedding parliamentary oversight.

Regulation‑making power

The Governor may make regulations covering matters required or permitted by the Act and, specifically, regulations may impose fees and set methods of calculating fees (s 61). This allows detailed implementation rules to be made under the Act as needed.

In sum, the Act integrates with public sector employment and finance law, sectoral regulatory statutes, evidence and privilege notions, and parliamentary oversight mechanisms, while setting clear boundaries where sectoral regimes or other written laws take precedence.

The reprint identifies a history of amendments and commencement dates that materially altered the Act’s cross‑references and application.

Principal milestones in the compilation table:

Economic Regulation Authority Act 2003 (No. 67 of 2003), assented 5 December 2003; key provisions commenced 1 January 2004 with some parts (s 25(b), s 63(2), Schedule 2 Div. 4 and Schedule 4) commencing later on 19 March 2004 (s 2).
Electricity Corporations Act 2005 amends s 20; amendments commenced 1 April 2006 (s. 139) affecting the definition of “relevant entity” and related staff arrangements (compilation table).
Machinery of Government and financial legislation amendments (2006) and Financial Legislation Amendment and Repeal Act 2006 impacted the Act’s application of the Financial Management Act 2006 and Auditor General Act 2006, with changes commencing 1 Feb 2007 (s 23 amendments and financial management cross‑references).
National Gas Access (WA) Act 2009 inserted functions under the National Gas regime and came into operation 1 Jan 2010 (Pt. 7 Div. 2) (compilation table; see s 25(c)).
Public Sector Reform Act 2010 (s 89) made changes effective from 1 Dec 2010 affecting appointment and remuneration provisions, such as s 12 (remuneration and conditions of members).
Water Services Legislation Amendment and Repeal Act 2012 (s 209) amended the Act in relation to water services functions referred to the Authority (s 25(e)); these amendments are noted in the compilation table with a commencement on 18 Nov 2013.
Electricity Corporations Amendment Act 2013 (s 38) is listed in the compilation table with commencement 1 Jan 2014 and affects the definition of relevant entities for staff access (s 20(5)(c)).
The reprint date shown is 4 April 2014 and includes the amendments noted in the compilation table.

Omissions noted under the Reprints Act 1984:

Section 62 is omitted (Reprints Act s 7(4)(e)) and s 63 and Schedule 4 have been omitted under the Reprints Act (s 7(4)(g)). Schedule 2 is also omitted under the Reprints Act (s 7(4)(e)). The compilation table indicates which provisions were omitted under that reprint regime.

Practical pointers from the amendment history

Amendments have been used to align the Authority’s functions and staffing rules with sectoral corporatisation and access regimes (electricity, gas, rail, water) and to fold the Authority into the state’s modern financial management and audit framework (Financial Management Act 2006; Auditor General Act 2006). The insertion of the National Gas Access functions is particularly consequential for the Authority’s interaction with Commonwealth‑modelled gas law frameworks.
The remuneration and employment provisions have been adjusted by subsequent Public Sector reform to reflect alignment with state employment frameworks (see s 12 as amended and s 17).

The Act’s text (as reprinted) therefore reflects multiple legislative interventions adapting the ERA’s remit, administrative arrangements, and its intersection with sectoral regimes over the period 2004-2014. The compilation table in the reprint records dates of assent and commencement for each amending instrument and should be consulted for current version history beyond the reprint date.

The reprinted text of the Act provided contains no judicial decisions, cases, or litigation history. The Act itself does not list cases, nor does the compilation table include references to litigation. Therefore, within this source document there are no reported judicial interpretations or litigation outcomes to cite. Practitioners should consult case law databases and tribunal or court reports for decisions construing particular provisions (for example, on the scope of s 55 confidentiality, or the extent of s 51 information powers) because none are recorded in the Act as provided.

Note: the Act expressly creates rights and obligations (compulsion to produce documents, criminal penalties, confidentiality obligations and immunity from admissibility of compelled answers). How courts have interpreted limits such as “reason to believe” in s 51, the public benefit/detriment balancing test in s 55(2), or the scope of the immunity under s 49 or s 53 may be material. Those interpretive outcomes are not in this reprint and must be sought in external legal databases and reported decisions.

Specific operational risks, traps and frequently missed statutory details that arise directly from the text:

Ministerial references can be amended or withdrawn before the Authority reports (ss 33, 39). A regulated entity may assume finality once a reference is made, but the Minister may amend or withdraw the reference until the report is lodged. That changes the scope of inquiry and compliance obligations mid‑process.
Confidentiality must be asserted contemporaneously. Under s 55(1), the confidentiality protection applies only if, at the time the information or document is given, the person states that it is confidential or commercially sensitive. Later claims are of limited use. Practitioners must ensure confidentiality claims are plainly made when producing materials to the Authority.
Disclosure exceptions are discretionary and subject to a balancing test. Even if a party marks material as confidential, the Authority may disclose it if it forms the opinion that disclosure will not cause detriment or that the public benefit outweighs detriment (s 55(2)). The Act requires the Authority to make that evaluative judgement,there is no automatic non‑disclosure once confidentiality is claimed.
Compulsion is broad but immunities are narrow. Compelled answers and documents are not admissible in other proceedings (ss 49, 53), but that protection does not prevent prosecution for giving false or misleading information under s 48(d) or s 52(2). Entities producing material should ensure accuracy and consider the narrow criminal exposure for false statements.
Non‑public sector members cannot be public sector employees. Section 7(2) disqualifies public sector employees from being appointed or holding office as members. However, alternate chairmen and alternate members may be public sector employees (ss 10(3), 11(3)). This detail affects selection and conflicts with secondment and employment planning.
Delegation limits. The Authority cannot delegate powers under ss 35, 36, 41 or 42 (s 29(2)). Those sections implement the Authority’s core inquiry/reporting obligations. Practitioners should not assume the Authority can offload the final report or reference decisions to delegates.
Member conflict disclosure carries a penalty. A member who fails to inform the Minister in writing of direct or indirect interests that conflict or may conflict with duties faces a $10,000 penalty (s 30(1)). This is an individual liability for governance non‑disclosure.
Fees and cross‑subsidy restrictions. Regulations may allow fees for Authority functions (s 61), but regulations or methods of calculation must not permit recovery of expenditure attributable to the performance of a function under one written law from fees charged for another (s 61(4)). This restricts cost recovery and may require explicit accounting separation (s 24).
Use of government staff has exclusions and control provisions. The Authority can use Public Service staff or facilities by arrangement (s 20), but it cannot use officers or employees of a party to an access agreement or relevant entity (s 20(1)). Arrangements must give the Authority authority to control and supervise the officer while available, and the officer’s salary is to be paid from Authority funds while in use (s 20(3)). Budgeting and secondment management must reflect these constraints.
Transparency obligations for Ministerial directions. While the Minister can give directions related to general administrative policy, those directions must be published in the Gazette and laid before Parliament within 14 days (s 28(5)-(6)) and included in the Authority’s annual report (s 28(7)). Failure to comply with these publication and parliamentary laying steps is an implementation risk that can prompt parliamentary scrutiny.
Statutory review timetable. Section 64 mandates reviews by a Joint Standing Committee beginning two years after commencement and thereafter at five‑year intervals. This creates periodic legislative oversight and the possibility of structural change at review times.
Enforcement exposure for non‑compliance includes imprisonment. Certain offences (s 52, s 57, s 58) carry the penalty of imprisonment for 12 months as an option alongside a monetary fine. This elevated exposure should shape compliance procedures for persons subject to information notices and for staff handling confidential material.
Records and accounting separation: the Act requires separate records for expenditure in respect of each written law under which the Authority has functions (s 24). Given the Authority’s multiple statutory functions, failure to maintain separate accounting records may contravene s 24 and interfere with fee rules (s 61) and Ministerial limitations on expenditure (s 23(3)).

These “gotchas” are concrete implementation traps embedded in the Act and can create procedural, financial and legal risk if missed.

Practical, source‑grounded steps that affected parties,regulated entities, members and staff of the Authority, advisers and the Minister’s office,should take to comply with the Act’s requirements and to manage risk.

For regulated entities and persons likely to be summoned or required to produce documents (ss 47, 51)

Mark confidential material contemporaneously. If material is confidential or commercially sensitive, state that at the time of production (s 55(1)); the Authority’s non‑disclosure obligations then apply, subject to the s 55(2) balancing test.
Prepare for compulsion and truthfulness obligations. Ensure processes for rapid retrieval of documents and accurate responses to s 47 summonses or s 51 notices. The penalties for failure and for false or misleading statements are significant (ss 48, 52). Implement document‑control, review and sign‑off procedures before producing documents.
Use legal counsel to prepare privilege claims. The Act does not preserve legal professional privilege insofar as the compulsion provisions allow production even if incriminating; however, privilege claims must be asserted and advanced carefully. If claiming privilege, do so contemporaneously and record the basis of the claim.
Provide confidentiality notices in writing at the point of production. Where possible, accompany productions with written submissions explaining why disclosure would cause detriment and the public interest considerations against disclosure, so that the Authority must consider s 55(2) factors with materials and reasoning on the record.

For the Authority and its members/staff

Establish a robust confidentiality policy and training. Members and staff have statutory confidentiality obligations with criminal penalties (s 57). Maintain written procedures, classifications, secure storage, and access controls for confidential material; log access to protect against unauthorised disclosure.
Maintain separate financial records and cost‑allocation systems. The Authority must keep separate records of expenditure for each written law under which it acts (s 24) and must avoid cross‑recovering costs under different written laws (s 61(4)). Implement financial accounting lines that map to statutory functions and ensure fee settings (if any) are calculated on a per‑function basis.
Follow meeting and governance requirements. Adhere to Sch. 1 for meetings, quorums and minutes (Sch. 1 cll 3-7). Ensure conflict‑of‑interest disclosures are made to the Minister in writing as required by s 30(1), and establish a process to resolve conflicts consistent with s 30(2) (Minister may direct resolution or disqualify a member from a matter).
Treat Ministerial directions as public and timely. If the Minister issues a direction under s 28, ensure the direction is published in the Gazette and laid before Parliament within the 14‑day window (s 28(5)-(6)). Include the direction in annual reporting (s 28(7)).

For the Minister’s office

Engage with the Authority before making references. The Act requires consultation before the Minister refers matters under ss 32(3) and 38(3). Document consultation outcomes and define terms of reference clearly (ss 32(4), 38(4)) to avoid mid‑process changes that complicate inquiries.
Be explicit about public consultation requirements in references. The Minister can specify the nature and degree of public consultation and may require draft reports to be publicly available or available to specified bodies (s 32(4)(c), (e); s 38(4)(b), (d)). Ambiguity creates procedural risk for the Authority and stakeholders.

For legal advisers and compliance officers

Map interactions with sectoral regimes. Identify whether a matter is governed by the National Gas Access Law or the Railways Code; s 32(1) excludes such matters from Ministerial references in regulated industries, and s 28(3)(b) prevents Ministerial directions that constrain the Authority with respect to those sectoral functions.
Advise clients on the narrow self‑incrimination protection. Compelled answers are not admissible (s 49) except for prosecutions for providing false information. Counsel must prepare clients for the reality that compulsion can be used and immunity is limited to non‑admissibility.
Monitor parliamentary and regulatory timelines. Reports must be laid before each House (ss 36(3), 42(4)). The Joint Standing Committee review timetable (s 64) creates periodic opportunities for legislative or procedural change.

For organisations making use of staff secondments or facilities (s 20)

Draft secondment arrangements that comply with s 20(3). Agreements must give the Authority control to supervise secondees and must provide that salaries and allowances are paid from Authority funds during secondment. Exclude staff of access agreement parties and relevant entities from secondment pools (s 20(1)).

Operational checklist

Create a production checklist for s 47 and s 51 notices (timing, form specified by s 51(3), concurrent confidentiality claim if applicable).
Maintain records and audit trails for every document provided to the Authority, including contemporaneous confidentiality claims and reasons for any redactions.
Train staff on s 57 obligations and s 58 prohibitions on intimidation; designate compliance officers to ensure protection and to report threats.
Maintain separate general ledger codes for each statutory function to comply with s 24 and to support fee calculations under s 61.
Put processes in place to notify and manage member conflicts, including an escalation path to the Minister if resolution is required (s 30).

Following these concrete steps will align operational practices with the Act’s coercive powers, confidentiality regime, accountability and financial management obligations as set out in the statutory text.

Deep Dive

What it does

Current sections