The regulation directly binds only a small group: persons appointed as members of a committee established under section 34W of the Energy and Utilities Administration Act 1987. Those members are typically people with expertise relevant to the energy and utilities sector - possibly industry representatives, consumer advocates, technical specialists, or public servants. The regulation also directly affects the Minister administering the Act, who exercises powers of appointment, removal, remuneration determination, code‑of‑conduct approval, and committee‑size decisions (Schedule 1, clauses 2, 5, 6, 13). The regulation does not affect energy retailers, network operators, generators, or consumers directly, because no provision imposes duties on them or alters their rights. However, if a committee exercises functions under the Act that affect licence conditions, pricing orders, or industry codes (for example, by making recommendations or decisions delegated by the Minister), then the regulation’s procedural rules indirectly affect the integrity of those outcomes. A committee that fails to comply with quorum or conflict‑of‑interest rules could produce a decision that is vulnerable to judicial review, potentially affecting regulated entities. The regulation affects staff who serve as subcommittee members (clause 14) and may affect employers or partners of members when an interest is imputed. Professional advisers who deal with committee members (e.g., lawyers, economists) may need to be aware of the disclosure regime, as a member’s failure to disclose a relationship with an adviser could lead to removal. The Classification and Remuneration Framework guidelines that the Minister must “consider” (clause 5(2)) are published by the Public Service Commission, so the Commission’s policies influence committee members’ pay, though indirectly. The regulation does not affect the general public, but if a committee makes decisions that influence energy prices or supply security, the public bears the consequences of those decisions - subject to whatever checks the Act provides.

Duties of committee members:

• Disclosure of interests (clause 7(1)): As soon as practicable after becoming aware of a pecuniary or other interest that appears to raise a conflict, a member must disclose it at a meeting. The disclosure must be recorded and made available on request (clause 7(3)).
• Abstention after disclosure (clause 7(4)): Unless the committee determines otherwise, the member must not be present during deliberations or take part in decisions on the matter. The member is also excluded from the committee’s deliberations about whether to grant that exception (clause 7(5)).
• Compliance with code of conduct (clause 13(2)): Observing the Minister‑approved code is a condition of appointment. The code may include provisions designated as termination provisions, breach of which may lead to removal.
• Attendance: A member who is absent from three consecutive meetings without reasonable excuse (leave from Minister or later excuse) loses office automatically (clause 6(1)(d)).
• General duties: The regulation does not codify a fiduciary duty, but the combination of disclosure obligations, code compliance, and the potential for removal for conduct that brings the committee into disrepute (clause 13(3)) imposes an implied duty of good behaviour and avoidance of conflicts.

Rights of committee members:

• Remuneration and allowances as determined by the Minister (clause 5). There is no statutory right to a particular level; the Minister has discretion, subject only to considering the Public Service Commission’s framework.
• Eligibility for reappointment after a term of up to five years (clause 4).
• Participation in decision‑making: Members have equal voting rights at meetings and in circular resolutions (clauses 10, 12).
• Right to be heard: In meetings held by telecommunication, a member who speaks must be able to be heard by other members (clause 12(2)) - this implies a right to participate effectively.
• Access to papers: Circular resolutions require circulation of papers among all members (clause 12(1)), implying a right to receive information.
• Right to be recorded: Minutes must record decisions and reasons (clause 10(2)), and any disclosure must be recorded (clause 7(3)).

Rights and powers of the committee:

• To determine its own procedure for calling meetings and conducting business, subject to the regulation (clause 11).
• To establish subcommittees and delegate functions to them (clause 14).
• To transact business by circular resolution or by telecommunication (clause 12).
• To determine whether a member with a disclosed interest may nevertheless participate (clause 7(4)).

Rights and powers of the Minister:

• To appoint members (chairperson, deputy chairperson, and up to seven others).
• To determine remuneration and allowances.
• To approve and amend the code of conduct.
• To remove a member for breach of a termination provision in the code.
• To request the establishment of subcommittees (clause 14(1)).

The regulation creates no criminal offences, no civil penalties, and no monetary fines. Enforcement is entirely internal or through loss of office. The specific mechanisms are:

• Vacancy for non‑attendance (clause 6(1)(d)): If a member is absent from three consecutive meetings (with reasonable notice) and is not excused by the Minister within four weeks after the last of those meetings, the office becomes vacant. This operates automatically, not by Ministerial order. The regulation does not require the Minister to make a declaration; the clause says the office “becomes vacant” when the conditions are met. The member could potentially dispute whether the conditions (e.g., “reasonable notice”) were satisfied, but the regulation provides no appeal mechanism.

• Removal for code‑of‑conduct breach (clause 13(4)): The Minister may remove a member who has contravened a provision of the approved code of conduct, but only if that provision is identified in the code as a “termination provision”. This gives the Minister a disciplinary power but also limits it - breach of a non‑termination provision cannot alone ground removal under the regulation, though the Minister might be able to remove under the general appointment power or under some other source of power (the Act is not provided). The regulation does not require the Minister to give reasons or afford procedural fairness before removal; however, the common law and the NSW Government Sector Employment Act (if applicable) may imply such requirements.

• Statutory vacancy grounds (clause 6(1)): Additional grounds for vacancy are death, completion of term without reappointment, resignation in writing, bankruptcy, mental incapacity, or conviction of an imprisonable offence (12 months or more). These are non‑discretionary - the office vacuates automatically.

• Non‑invalidity of decisions (clause 7(6)): A contravention of the disclosure or abstention obligations does not invalidate a decision of the committee. This is a significant enforcement limitation: even if a member participates after a conflict and fails to disclose, the committee’s decision stands as a matter of law under this regulation. However, that does not immunise the decision from challenge under broader administrative law principles or under the Act itself - if the Act requires procedural fairness, a biased decision maker could be judicially reviewed despite clause 7(6). The clause only protects against invalidity by reason only of contravention of clause 7.

• No external enforcement body: No regulator is empowered to police compliance. There is no provision for fines, infringement notices, or court orders. The Minister is the sole enforcer, through the removal power. The public can access records of disclosures (clause 7(3)), which provides a transparency check, but cannot directly trigger penalties.

The regulation sits under the Energy and Utilities Administration Act 1987 and depends on that Act for its existence and for the definition of “committee” (section 34W). The Act itself is not before us, but the regulation’s effect cannot be assessed without consulting the Act to see what functions committees exercise - whether advisory only, or decision‑making under delegation. The regulation is subordinate, so any inconsistency with the Act would see the Act prevail.

The Interpretation Act 1987 applies to the regulation (section 3 note). That Act provides default rules for the interpretation of terms, the computation of time, the effect of repeal, and other general legislative matters.

The Government Sector Employment Act 2013 may be relevant if committee members are also public servants. The regulation does not override that Act; public sector employees would need to comply with their primary employment obligations as well as the committee’s code of conduct.

The Independent Commission Against Corruption Act 1988 (ICAC) imposes broader obligations on public officials, including members of statutory committees, to avoid corrupt conduct. The regulation’s disclosure provisions (clause 7) supplement but do not replace ICAC obligations. A failure to disclose could also constitute corrupt conduct under the ICAC Act if it involves a breach of public trust.

The Public Service Commission’s Classification and Remuneration Framework is not a statute, but the Minister must “consider” it when determining remuneration (clause 5(2)). That means the Minister must turn his or her mind to the framework, but is not bound to follow it. Non‑compliance with the framework is not justiciable unless the decision is so unreasonable that it fails the Wednesbury test (at common law). The framework itself may require consistency with other NSW government board remuneration policies.

The Energy and Utilities Administration (Energy and Water) Regulation 2022 (if it exists) or other industry‑specific regulations under the Act may impose substantive duties on energy entities; this regulation is separate and does not interact directly except that a committee might be established to advise on those substantive regulations.

The common law duty of procedural fairness applies to committee decisions that affect rights - even though the regulation does not codify it. Clause 7(6) does not oust judicial review for bias; a court could still set aside a decision if the common law requirements are not met. Similarly, the removal power of the Minister (clause 13(4)) is likely subject to implied procedural fairness, unless the regulation or the Act validly excludes it.

The NSW Ombudsman Act could apply if the committee is a “public authority” - the Ombudsman could investigate maladministration, including failures to comply with the regulation.

No interaction with the Corporations Act 2001 (Cth) is mentioned, but if a committee member is a director of a company, the member’s disclosure duties under the regulation are separate from and additional to director’s duties under the Corporations Act.

The regulation commenced on 2 July 2021 (the date of publication on the NSW legislation website). Its amendment history is set out in the source:

• 2021 (No 688), sec 3: An amendment that affected clause 8 (now repealed). The nature of the amendment is not described further.
• 2023 (No 21), sec 3: Another amendment to clause 8 before its repeal.
• 2023 (No 349), sec 3: Inserted Part 3 (which contained clause 9). Part 3 was titled something about energy savings schemes or similar, but the source does not reveal its content beyond that it was later repealed.
• 2024 (No 601), Sch 1[2]: This was a major repeal: it repealed all of Part 2 (original clauses 5-8) and all of Part 3 (clause 9). The repeal took effect on a date in 2024 (the instrument was published then).
• 2024 (No 601), Sch 1[3]: Inserted a new clause 5 into Part 2. This was a short‑lived clause - it was later repealed.
• 2025 (No 226), Sch 1: Repealed clause 5 (the one inserted in 2024).

The result is that the regulation today consists only of Part 1 (clauses 1-4) and Schedule 1. The original regulation likely contained substantive provisions imposing obligations on energy utilities (e.g., reporting, energy savings schemes, carbon reduction programs). Those have been removed, leaving only the committee governance skeleton. The repeal history suggests a policy decision to deregulate or to move substantive obligations to another instrument, or that those parts were spent or superseded. The user should check the Act and any other regulations under the Act to see where the former Parts 2 and 3 provisions now reside - they may have been moved to the Act itself or to a different regulation. The regulation is now essentially a machinery‑of‑government instrument.

The source provides no references to any court cases interpreting or applying this regulation. Because the regulation is procedural and has been substantially stripped of substantive content, it is unlikely to generate direct litigation. However, several hypothetical litigation scenarios can be identified, though no actual cases are known to the author:

• Removal of a member: A member removed under clause 13(4) for breach of a code‑of‑conduct termination provision might challenge the removal in the NSW Civil and Administrative Tribunal (NCAT) or the Supreme Court, arguing that the Minister failed to afford procedural fairness, that the code provision was not properly approved, or that the breach did not occur. The regulation does not provide a statutory right of review, so the challenge would rely on administrative law grounds.

• Validity of a committee decision: A person affected by a committee decision (e.g., an energy company facing a recommendation for licence suspension) might argue the decision was invalid because the committee did not have a quorum, or because a member with an undisclosed interest participated. Clause 7(6) prevents invalidity solely because of a disclosure contravention, but a challenge based on actual bias (not merely contravention of clause 7) could still succeed - the clause does not immunise against common law bias.

• Dispute over remuneration: A member could challenge the Minister’s determination of remuneration as failing to properly “consider” the Public Service Commission framework (clause 5(2)). Such a challenge would face a high threshold - courts rarely review discretionary determinations of remuneration absent a breach of statute or manifest unreasonableness.

• Interpretation of “pecuniary or other interest”: A member could seek declaratory relief about whether a particular relationship falls within clause 8. The broad language and the inclusion of non‑pecuniary interests could lead to disputes, for instance about whether a strongly held ideological view constitutes an “other interest”. No case law is cited, so this remains an open risk.

In practice, because committees under the Act are likely to be small and ministerial‑appointed, and their decisions may be only advisory, litigation is rare. If the Act confers binding decision‑making powers on the committee, the litigation risk increases. Users should monitor any future decisions of NSW courts or NCAT that reference this regulation.

1. “Pecuniary or other interest” is broader than it appears: Clause 8 defines “interest” as a reasonable likelihood or expectation of appreciable gain or loss, “whether financial or otherwise”. So non‑financial interests (e.g., a close personal relationship, a strong professional rivalry, an ideological commitment to a particular energy policy) may fall within the disclosure obligation. Many members may think only money matters; the regulation catches much more.

2. Imputed interests from relatives and associates: A member must disclose even if the interest belongs to a spouse, de facto partner, parent, child, sibling, step‑sibling, or any intimate personal relationship (clause 8(5)). The same applies to an interest of a partner or employer, or a company the member or associate is connected to (clause 8(3)). The only escape is if the member is unaware of that person’s interest (clause 8(4)(a)). So a member whose spouse owns shares in an energy company must disclose any matter affecting that company, even if the member did not know about the shares - unless the member genuinely had no knowledge. The burden is on the member to show lack of knowledge if challenged.

3. Automatic vacancy for three missed meetings: The trigger is absence from three consecutive meetings of which reasonable notice was given. The clause (6(1)(d)) does not require the Minister to act - the office becomes vacant automatically. A member who falls ill or is overseas might miss meetings and lose office without any formal removal process. The four‑week grace period for seeking the Minister’s excuse is short and runs from the last meeting. Members must keep records of excused absences.

4. Contravention of disclosure does not invalidate decisions: Clause 7(6) is a trap: a member might think that a failure to disclose means the committee’s decision on that matter is void. It is not. The committee can proceed, and the decision stands. However, the member could face removal (if the code of conduct includes such a provision) and reputational damage. The non‑invalidity clause protects the committee’s work but does not protect the member.

5. No floor on committee size: The minimum is three members (chair, deputy, and at least one other - clause 2(1)(c)). If the Minister appoints only one other member, the quorum is a majority - which is two members (the chair plus that one other). A decision could be made by just two people, one of whom could be the chair with a casting vote (the regulation does not give the chair a second vote, but majority of voting members present suffices). That is a very small deliberative body.

6. Code of conduct can include termination provisions after appointment: The Minister may approve a code and later authorise changes (clause 13(1)(b)). A code could be amended after a member’s appointment to include a new termination provision. The member’s appointment is conditional on compliance with the code as amended, because the appointment condition refers to the approved code from time to time. Members should monitor changes.

7. Remuneration is entirely at Minister’s discretion: There is no prescribed scale, only a requirement to “consider” the Public Service Commission guidelines. The Minister could set remuneration at zero, or limit allowances. Members have no contractual right to the guidelines being applied; only a right to have the Minister consider them.

8. Subcommittees can be delegated almost all functions: Clause 14(3) allows delegation of any functions except the power to delegate. So a subcommittee could make substantive decisions, but its members are not necessarily subject to the same disclosure and code‑of‑conduct obligations as the main committee. The regulation does not explicitly extend clauses 7 or 13 to subcommittee members. The main committee may decide the procedure for subcommittees, but the specific duties are applied only to “members of a committee” defined in clause 1. If the subcommittee is not itself a “committee” under section 34W, the members may not have the statutory disclosure duty. That is a gap.

Compliance with the Regulation 2021 falls on two main actors: the Minister (and officials acting for the Minister) and the committee members.

For the Minister:

• When establishing a committee, ensure the appointment instrument specifies the chairperson, deputy chairperson, and between one and seven other members (clause 2(1)). Appointments must be in writing.
• Set the term of office for each member, not exceeding five years (clause 4). Specify whether the office is full‑time or part‑time (clause 2(2)).
• Determine remuneration and allowances by written instrument. Before making the determination, obtain and consider the Public Service Commission’s Classification and Remuneration Framework for NSW Government Boards and Committees. Document that consideration in a file note or brief to avoid challenge (clause 5).
• Approve a code of conduct for the committee (clause 13(1)(a)). Consider including provisions that clearly identify which provisions are termination provisions. Ensure the code is provided to each appointee and acknowledged in writing. If the committee later recommends changes, the Minister may authorise them (clause 13(1)(b)).
• Monitor attendance. If a member misses three consecutive meetings without leave, the office becomes vacant automatically - the Minister does not need to act, but should note the vacancy and appoint a replacement promptly (clause 6(2)). If a member seeks an excuse after the fact, consider within the four‑week period.
• If a member breaches a termination provision of the code, the Minister may remove the member. Consider affording procedural fairness before removal, despite the regulation’s silence, to reduce the risk of judicial review. Document the reasons.
• On receipt of a resignation in writing, note the vacancy (clause 6(1)(c)). No formal acceptance is needed.

For committee members:

• On appointment, obtain and read the code of conduct. Understand which provisions are termination provisions. Seek clarification from the Minister if unsure.
• Before each meeting, consider whether you have any pecuniary or other interest in any matter to be considered. Consider not only your direct interests but also those of your spouse, de facto partner, children, parents, siblings, step‑siblings, employer, business partners, and any company with which you or they are associated (clause 8(3)). If you are unaware of a relative’s interest, that fact may be a defence, but it is safer to inquire.
• If you become aware of an interest that appears to raise a conflict, disclose it at the meeting as soon as practicable (clause 7(1)). The disclosure must be oral and must be recorded in the minutes (clause 7(3)). A blanket disclosure (e.g., “I am a director of ABC Pty Ltd”) at the start of the year covers future matters relating to ABC (clause 7(2)).
• After disclosure, do not participate in deliberation or voting on that matter unless the committee specifically determines that you may (clause 7(4)). Do not participate in that determination either (clause 7(5)).
• Attend meetings. If you cannot attend, request leave from the Minister in advance. If you miss three consecutive meetings without leave, you automatically vacate office - the four‑week grace period to seek an excuse is not guaranteed. Keep a diary of meeting dates and excuse requests.
• Participate in decisions. Vote on matters. The committee may also decide by circular resolution (papers circulated by email) or by teleconference. Ensure you have the papers and respond by the deadline. If you must speak at a meeting via teleconference, ensure your audio/video equipment allows others to hear you (clause 12(2)).
• Record any dissenting views if you wish; the regulation does not require it, but it may be prudent for the minutes (clause 10(2) requires recording reasons for decisions, which could include minority opinions).
• If a subcommittee is established, you may be appointed as a member. Note that the disclosure and code obligations likely apply, but the regulation does not explicitly extend clause 7 to subcommittee members. It is best practice to comply voluntarily.
• Maintain confidentiality of committee deliberations unless the committee authorises disclosure. The regulation is silent on confidentiality, but the code of conduct may address it.

For the committee (as a body):

• At the first meeting, determine the procedure for calling meetings and conducting business (clause 11). Document this in a standing resolution.
• Keep minutes of each meeting, recording all decisions and the reasons for them (clause 10(2)). Also record any disclosures of interest (clause 7(3)) and the committee’s determinations on whether a member may participate after disclosure (clause 7(4)).
• Ensure that quorum (a majority of members) is present before making decisions. For a four‑member committee (chair, deputy, and two others), quorum is three. Do not proceed if quorum is lost.
• If establishing a subcommittee, pass a resolution defining its composition, functions, and procedure. Ensure the delegation resolution does not delegate the power of delegation itself (clause 14(3)). Specify whether subcommittee members must comply with the same code of conduct and disclosure rules - failing to do so creates risk.
• When transacting business by circular resolution, circulate the papers to all members (including those absent). Obtain written approval from a majority. Record the resolution in the minutes of the next meeting (clause 12(4)). If using email, ensure members can open attachments and that votes are clearly documented.