Div 1CRetailer Reliability Obligation—AER compliance regime

Division 1C—Retailer Reliability Obligation—AER compliance regime 18Z—Definitions compliance audit—see section 18ZE or 18ZF; regulated entity—see section 18ZA(2); Reliability Compliance Procedures and Guidelines—see section 18ZI. 18ZA—Obligation of AER to monitor compliance (1) The AER must monitor compliance of regulated entities with the Retailer Reliability Obligation. (2) Each of the following persons is a regulated entity for the purposes of this Division: (a) a liable entity; (b) another person prescribed by the Rules. 18ZB—Obligation of regulated entities to establish arrangements to monitor compliance (1) A regulated entity must establish policies, systems and procedures to enable it to efficiently and effectively monitor its compliance with the Retailer Reliability Obligation. (2) The policies, systems and procedures must be established and observed in accordance with the Reliability Compliance Procedures and Guidelines. 18ZC—Obligation of regulated entities to keep records (1) A regulated entity must keep records of its activities that— (a) allow the regulated entity to give accurate information and data relating to its compliance with the Retailer Reliability Obligation; and (b) enable the AER to assess whether the regulated entity has complied with its obligations under the Retailer Reliability Obligation; and (c) comply with the requirements of subsection (2) and Rules made for the purposes of subsection (3). (2) The regulated entity must keep the records for 5 years from the end of the year in which the activities take place. Subsections (1) and (2) are civil penalty provisions: See the definition of civil penalty provision in section 2AA(1). (3) The Rules may state requirements about the type and form of records that must be kept under subsection (1). 18ZD—Obligation of regulated entities to provide information and data about compliance A regulated entity must give the AER, in the manner, form and timeframes required by the Reliability Compliance Procedures and Guidelines, information and data relating to the regulated entity's compliance with the Retailer Reliability Obligation. This section is a civil penalty provision: See the definition of civil penalty provision in section 2AA(1). 18ZE—Compliance audits by AER (1) The AER may carry out an audit (a compliance audit) of a regulated entity's activities to assess the regulated entity's compliance with the Retailer Reliability Obligation. (2) Without limitation, a compliance audit may be carried out to assess a regulated entity's compliance with the reliability obligations. (3) The AER may carry out a compliance audit by arranging for a contractor or another person to carry out the compliance audit on the AER's behalf. (4) The cost of carrying out a compliance audit of a regulated entity under this section is— (a) an amount determined under the Reliability Compliance Procedures and Guidelines; and (b) recoverable by the AER from the regulated entity. 18ZF—Compliance audits by regulated entities (1) If required by the AER, a regulated entity must carry out an audit (a compliance audit) of specified aspects of the entity's activities relating to the entity's compliance with the Retailer Reliability Obligation. (2) The regulated entity may carry out a compliance audit by arranging for a contractor or another person to carry out the compliance audit on the entity's behalf, but the entity remains responsible for the carrying out of the compliance audit. (3) A regulated entity must give the AER the results of a compliance audit carried out under this section within a period specified by the AER. Subsections (1) and (3) are civil penalty provisions: See the definition of civil penalty provision in section 2AA(1). 18ZG—Carrying out compliance audit A compliance audit must be carried out in accordance with the Reliability Compliance Procedures and Guidelines. 18ZH—Use of information The AER may use any information or data given by a regulated entity under section 18ZD or 18ZF, or obtained under section 18ZE, for the purposes of any of the functions and powers of the AER under section 15 of this Law. Otherwise, the AER is subject to Division 6 of this Part and section 44AAF of the Competition and Consumer Act 2010 of the Commonwealth in respect of the disclosure of confidential information it receives. 18ZI—Reliability Compliance Procedures and Guidelines (1) The AER must make procedures and guidelines (the Reliability Compliance Procedures and Guidelines) in accordance with the consultation procedure provided for under the Rules. (2) Without limitation, the Reliability Compliance Procedures and Guidelines may provide guidance for regulated entities about the following: (a) compliance with the obligations under the Retailer Reliability Obligation, including, for example— (i) the reliability obligations; and (ii) establishing policies, systems and procedures to monitor its compliance under section 18ZB; and (iii) the information and data about compliance required to be given to the AER under section 18ZD; (b) the carrying out of compliance audits, including the costs payable by regulated entities; (c) any additional matters that the AER intends to include in its compliance reports. Division 1D—AER trial waiver functions 18ZJ—Definitions proponent—see section 18ZL(1). 18ZK—Interpretative matters (1) The functions of the AER under this Division are the AER trial waiver functions. (2) This Division does not limit any other provision of this Law or the Rules that provides for an exemption from, or for the waiver of, compliance with this Law or the Rules. 18ZL—Trial waiver (1) Subject to this section, the AER may, on application by a person or body that proposes to undertake a trial project (a proponent), make a determination to grant the proponent an exemption (a trial waiver) from 1 or more of the following: (a) section 11 of this Law; (b) the Rules, or a provision of the Rules. (2) Before making a determination to grant a trial waiver, the AER must have regard to the innovative trial principles and any matter required by the Rules. (3) An application for a trial waiver must be made in accordance with the Rules. 18ZM—Conditions of trial waiver (1) A trial waiver must be in writing and— (a) must be subject to any conditions required by the Rules; and (b) may be subject to any conditions the AER considers appropriate. (2) The AER may vary or revoke a condition of a trial waiver in accordance with the Rules. 18ZN—Consultation on trial waiver Before granting a trial waiver, the AER must— (a) comply with any requirements specified by the Rules; and (b) undertake consultation (including with the proponent) in accordance with the Rules. 18ZO—Publication etc of trial waiver As soon as practicable after a trial waiver is made, a copy of the trial waiver must be published on the AER's website. 18ZP—Duration of trial waiver Subject to this Division, a trial waiver has effect from the day specified in the trial waiver and for the period (not exceeding 5 years) specified in the trial waiver. 18ZQ—Extension of trial waiver (1) The AER may, in accordance with the Rules, extend the period for which a trial waiver granted under this Division has effect by a period determined by the AER (which cannot exceed the period prescribed by the Regulations). (2) Before granting an extension under subsection (1), the AER must have regard to the innovative trial principles and any matter required by the Rules. (3) An extension under subsection (1) must be in writing and must be published on the AER's website. (4) An extension under subsection (1) may only be granted once in respect of a trial waiver granted under this Division. 18ZR—Compliance with trial waiver (1) A proponent granted a trial waiver must comply with any conditions to which the trial waiver is subject. (2) If a proponent breaches subsection (1), the AER may— (a) revoke the trial waiver; or (b) vary or revoke a condition of, or impose further conditions on, the trial waiver. (3) Nothing in this section limits section 18ZS. 18ZS—Revocation of trial waiver The AER may, in accordance with the Rules, revoke a trial waiver granted under this Division. 18ZT—Other matters (1) The AER must not grant a trial waiver if the AER reasonably considers— (a) that the trial project for which the trial waiver is sought is materially similar to a trial project— (i) for which a trial Rule has been made; or (ii) that is the subject of a request under section 91(1) for the making of a trial Rule; or (b) that the trial project is unlikely to be carried out. (2) The AER cannot grant itself a trial waiver. Division 2—Search warrants 19—Definitions authorised person means a person authorised under section 20; relevant provision means a provision of this Law, the Regulations or the Rules. 20—Authorised person (1) The AER may, in writing, authorise a person that the AER considers is suitably qualified or trained to be an authorised person for the purposes of this Division. (2) An authorised person must comply with any direction of the AER in exercising powers or functions as an authorised person. 20A—Identity cards (1) The AER must issue an identity card to an authorised person. (2) The identity card must contain the name, a recent photograph and the signature of the authorised person. (3) An authorised person must carry the identity card at all times when exercising powers or performing functions as an authorised person. (4) An authorised person must produce his or her identity card for inspection— (a) before exercising a power as an authorised person; or (b) at any time during the exercise of a power as an authorised person, if asked to do so. 20B—Return of identity cards If a person to whom an identity card has been issued ceases to be an authorised person, the person must return the identity card to the AER as soon as practicable. Maximum penalty: $620. See Schedule 2 clause 37B, which provides for criminal penalty amounts to be adjusted every 3 years to reflect movements in the consumer price index. The adjusted amounts are published on the AER's website. 21—Search warrant (1) An authorised person may apply to a magistrate for the issue of a search warrant in relation to a particular place if the person— (a) believes on reasonable grounds that— (i) there is or has been or will be a breach of a relevant provision; and (ii) there is or may be a thing or things of a particular kind connected with that breach on or in that place; or (b) reasonably suspects that— (i) there may have been a breach of a relevant provision; and (ii) there is or may be a thing or things of a particular kind connected with that breach on or in that place. (2) If a magistrate is satisfied by the evidence, on oath or by affidavit, of an authorised person that there are reasonable grounds for suspecting that there is, or may be within the next 7 days, a thing or things of a particular kind connected with a breach or possible breach of a relevant provision on or in a place, the magistrate may issue a search warrant authorising an authorised person named in the warrant— (a) to enter the place specified in the warrant, with such assistance and by the use of such force as is necessary and reasonable; (b) to search the place or any part of the place; (c) to search for and seize a thing named or described in the warrant and which the person believes on reasonable grounds to be connected with the breach or possible breach of the relevant provision; (d) to inspect, examine or record an image of anything in the place; (e) to take extracts from, and make copies of, any documents in the place; (f) to take into the place such equipment and materials as the person requires for exercising the powers. (3) A search warrant issued under this section must state— (a) the purpose for which the search is required and the nature of the suspected breach of the relevant provision; and (b) any conditions to which the warrant is subject; and (c) whether entry is authorised to be made at any time of the day or night or during stated hours of the day or night; and (d) a day, not later than 7 days after the issue of the warrant, on which the warrant ceases to have effect. (4) Except as provided by this Law, the rules to be observed with respect to search warrants mentioned in any relevant laws of this jurisdiction extend and apply to warrants under this section. 22—Announcement of entry and details of warrant to be given to occupier or other person at premises (1) This section applies if the occupier or another person who apparently represents the occupier is present at premises when a search warrant is being executed. (2) The authorised person executing the warrant must— (a) identify himself or herself to that person; and (b) announce that he or she is authorised by the warrant to enter the place; and (c) before using force to enter, give the person an opportunity to allow entry; and (d) give the person a copy of the warrant. (3) The authorised person executing the warrant is not entitled to exercise any powers under the warrant in relation to premises if the authorised person does not comply with subsection (2). 23—Announcement before entry An authorised person executing a warrant need not comply with section 22 if he or she believes on reasonable grounds that immediate entry to premises is required to ensure— (a) the safety of any person; or (b) that the effective execution of the search warrant is not frustrated. 24—Copies of seized documents (1) If an authorised person executing a warrant retains possession of a document seized from a person in accordance with the warrant, the authorised person must give that other person, within 21 days of the seizure, a copy of the document certified as correct by the authorised person executing the warrant. (2) A copy of a document certified under subsection (1) shall be received in all relevant courts and all tribunals as evidence of equal validity to the original. 25—Retention and return of seized documents or things (1) If an authorised person executing a warrant seizes a document or other thing in accordance with the warrant, the authorised person must if he or she is not a person employed by the AER, give the document or other thing seized to the AER. (2) The AER must take reasonable steps to return the document or thing to the person from whom it was seized if the reason for its seizure no longer exists. (3) If the document or thing seized has not been returned within 3 months after it was seized, the AER must take reasonable steps to return it unless— (a) proceedings for the purpose for which the document or thing was retained have commenced within that 3 month period and those proceedings (including any appeal) have not been completed; or (b) a magistrate makes an order under section 26 extending the period during which the document or thing may be retained. 26—Extension of period of retention of documents or things seized (1) The AER may apply to a magistrate— (a) within 3 months after a document or other thing was seized in accordance with a warrant; or (b) if an extension has been granted under this section, before the end of the period of the extension, for an extension of the period for which the AER may retain the document or thing but so that the total period of retention does not exceed 12 months. (2) An application must be made before proceedings for the purpose for which the document or thing was retained have been commenced. (3) A magistrate may order such an extension if he or she is satisfied that— (a) it is in the interests of justice; and (b) the total period of retention does not exceed 12 months; and (c) retention of the document or other thing is necessary— (i) for the purposes of an investigation into whether a breach of a relevant provision has occurred; or (ii) to enable evidence of a breach of a relevant provision to be obtained for the purposes of a proceeding under this Law. (4) If proceedings are commenced for the purpose for which the document or thing was retained at any time before the expiry of the period specified in an order under this section, the document or thing may be retained until those proceedings (including any appeal) have been completed despite those proceedings being completed after the period specified in the order. (5) At least 7 days prior to the hearing of an application under this section by a magistrate, notice of the application must be sent to the owner of the document or thing described in the application. 27—Obstruction of person authorised to enter A person must not, without reasonable excuse, obstruct or hinder an authorised person in the exercise of a power under a search warrant under this Division. (a) in the case of a natural person—$3 400; (b) in the case of a body corporate—$17 000. See Schedule 2 clause 37B, which provides for criminal penalty amounts to be adjusted every 3 years to reflect movements in the consumer price index. The adjusted amounts are published on the AER's website. Division 3—General information gathering powers 28—Power to obtain information and documents in relation to performance and exercise of functions and powers (1) If the AER has reason to believe that a person is capable of providing information, producing a document or giving evidence that the AER requires for the performance or exercise of a function or power conferred on it under this Law or the Rules, the AER may, by notice in writing, serve on that person a notice (a relevant notice). (2) A relevant notice may require the person to do 1 or more of the following: (a) provide to the AER, by writing signed by that person or, in the case of a body corporate, by a competent officer of the body corporate, within the time and in the manner specified in the notice, any information of the kind referred to in subsection (1); or (b) produce to the AER, or to a person specified in the notice acting on its behalf, in accordance with the notice, any documents of the kind referred to in subsection (1); or (c) appear before the AER, or before a member of the staff assisting the AER who is an SES employee or an acting SES employee and who is specified in the notice, at a time and place specified in the notice, to provide any information or to give any evidence of the kind referred to in subsection (1), either orally or in writing, and to produce any documents of the kind referred to in subsection (1). (3) A person on whom a relevant notice is served must comply with the relevant notice unless the person has a reasonable excuse. See Schedule 2 clause 37B, which provides for criminal penalty amounts specified to be adjusted every 3 years to reflect movements in the consumer price index. The adjusted amounts are published on the AER's website. (3a) A person must not, when appearing under subsection (2)(c), refuse or fail to answer a question that the person is required to answer for the purpose of providing information or giving evidence unless the person has a reasonable excuse. See Schedule 2 clause 37B, which provides for criminal penalty amounts specified to be adjusted every 3 years to reflect movements in the consumer price index. The adjusted amounts are published on the AER's website. (4) A person must not, in purported compliance with a relevant notice, provide information or give evidence that the person knows is false or misleading in a material particular. See Schedule 2 clause 37B, which provides for criminal penalty amounts to be adjusted every 3 years to reflect movements in the consumer price index. The adjusted amounts are published on the AER's website. (5) It is a reasonable excuse for the purposes of subsection (3) if the person served the relevant notice is not capable of complying with that notice. (5a) It is a reasonable excuse for the purposes of subsection (3a) if the person is not capable of providing the information or giving the evidence (as the case may be) to which the question relates. (6) It is a reasonable excuse for a natural person to— (a) fail to provide information or to give evidence of the kind referred to in subsection (1) to the AER, or to a person specified in a relevant notice; (b) fail to produce a document of the kind referred to in subsection (1) to the AER, or to a person specified in a relevant notice acting on behalf of the AER, if to do so might tend to incriminate the person, or make the person liable to a criminal penalty, under a law of this jurisdiction or another jurisdiction in Australia (whether or not that other jurisdiction is a participating jurisdiction). (7) It is not a reasonable excuse for a person to— (a) fail to provide information of the kind referred to in subsection (1) to the AER, or to a person specified in a relevant notice; or (b) fail to produce a document of the kind referred to in subsection (1) to the AER, or to a person specified in a relevant notice acting on behalf of the AER, on the ground of any duty of confidence. (8) This section does not require a person to— (a) provide information that is the subject of legal professional privilege; or (b) produce a document the production of which would disclose information that is the subject of legal professional privilege. (9) This section does not require a person to— (a) provide information or give evidence that would disclose the contents of a document prepared for the purposes of a meeting of the Cabinet or a committee of the Cabinet of the Commonwealth or of a State or a Territory; or (b) produce a document prepared for the purposes of a meeting of the Cabinet or a committee of the Cabinet of the Commonwealth or of a State or a Territory; or (c) provide information, give evidence or produce a document that would disclose the deliberations of the Cabinet or a committee of the Cabinet of the Commonwealth or of a State or a Territory. (9a) The AER, or a person specified in a relevant notice under this section, may require evidence given under subsection (2)(c) to be given on oath or affirmation and for that purpose the AER or specified person (as the case may be) may administer the oath or affirmation. (9b) A person must not, without reasonable excuse, refuse or fail to be sworn or to make an affirmation under subsection (9a). See Schedule 2 clause 37B, which provides for criminal penalty amounts to be adjusted every 3 years to reflect movements in the consumer price index. The adjusted amounts are published on the AER's website. (10) A person incurs, by complying with a relevant notice, no liability for breach of contract, breach of confidence or any other civil wrong. (11) Subject to the preceding subsections, the Court may, on application by the AER on behalf of the Commonwealth, if satisfied that a person has breached subsection (3) or (3a), make an order that the person take such action as the Court requires for remedying the breach. (12) To avoid doubt, the Court may act under subsection (11) if satisfied on the balance of probabilities that a person is in breach of subsection (3) or (3a) (as the case may be). (13) The AER must not exercise, or continue to exercise, a power under subsection (1) in relation to a matter (and any notice under that subsection will cease to have effect)— (a) after the AER has commenced proceedings in relation to the matter, other than proceedings for an injunction (whether interim or final); or (b) if proceedings for a final injunction have been commenced by the AER—after the close of pleadings in those proceedings. (14) Subsection (13) does not prevent the AER from— (a) using any information, evidence or document acquired under this section in any proceedings if the information, evidence or document has been obtained before the commencement of those proceedings; or (b) exercising a power under this section for a purpose other than for the purposes of proceedings referred to in that subsection. (15) Any information, evidence or document obtained under subsection (14)(b) may be used in any proceedings if it is found to be relevant to those proceedings. (16) The Regulations may make any other provision in relation to the form, content or service of a notice under this section. (17) An annual report for the AER must include the following information relating to the relevant reporting period for that report: (aa) the number of notices given under this section for the purposes of a function under Division 1A; (a) the number of notices (if any) given under subsection (2)(c) during the reporting period to appear to provide information or to give evidence orally; (b) in relation to a notice under paragraph (a)—a general description of the nature of the matter or matters in respect of which the notice was given; (c) the number of proceedings (if any) commenced during the reporting period to challenge a notice given under subsection (2)(c) to appear to provide information or to give evidence orally. (18) A person must not— (a) threaten, intimidate or coerce another person; or (b) cause or procure damage, loss or disadvantage to another person, because that other person— (c) proposes to provide information, give evidence or produce a document in response to a notice under this section; or (d) proposes to appear, or has appeared, in response to a notice under this section. See Schedule 2 clause 37B, which provides for criminal penalty amounts to be adjusted every 3 years to reflect movements in the consumer price index. The adjusted amounts are published on the AER's website. (19) In this section— acting SES employee has the same meaning as in the Public Service Act 1999 of the Commonwealth; SES employee has the same meaning as in the Public Service Act 1999 of the Commonwealth. Division 4—Regulatory information notices and general regulatory information orders 28A—Definitions contributing service has the meaning given by section 28B; related provider means a person who supplies a contributing service to a regulated network service provider. 28B—Meaning of contributing service (1) A contributing service is a service that the AER, in accordance with this section, decides is a service that contributes in a material way to the provision of an electricity network service by a regulated network service provider. (2) In deciding whether a service is a service that contributes in a material way to the provision of an electricity network service by a regulated network service provider, the AER must have regard to— (a) the nature and kind of the service; (b) when the service was first supplied; (c) the nature and extent of the contribution of the service relative to— (i) the electricity network service; and (ii) all other services supplied by the regulated network service provider; (d) whether the service was previously supplied— (i) by the regulated network service provider; or (ii) directly or indirectly by an associate of the regulated network service provider; (e) whether the service, together with other services, contributes in a material way to the provision of electricity network services; (f) any other matter specified under the Rules. 28C—Meaning of general regulatory information order A general regulatory information order is an order made by the AER in accordance with this Division that requires each regulated network service provider of a specified class, or each related provider of a specified class, to do either or both of the following: (a) provide to the AER the information specified in the order; (b) prepare, maintain or keep information specified in the notice in a manner and form specified in the order. 28D—Meaning of regulatory information notice A regulatory information notice is a notice prepared and served by the AER in accordance with this Division that requires the regulated network service provider, or a related provider, named in the notice to do either or both of the following: (a) provide to the AER the information specified in the notice; (b) prepare, maintain or keep information specified in the notice in a manner and form specified in the notice. 28E—Division does not limit operation of information gathering powers under Division 3 This Division does not limit the operation of Division 3. Subdivision 2—Serving and making of regulatory information instruments 28F—Service and making of regulatory information instruments (1) Subject to this Division, the AER, if it considers it reasonably necessary for the performance or exercise of its functions or powers under this Law or the Rules, may— (a) serve a regulatory information notice on a regulated network service provider or a related provider; or (b) make a general regulatory information order. (2) In considering whether it is reasonably necessary to serve a regulatory information notice, or make a general regulatory information order, the AER must have regard to— (a) the matter to be addressed by— (i) the service of the regulatory information notice; or (ii) the making of the general regulatory information order; and (b) the likely costs that may be incurred by an efficient network service provider or efficient related provider in complying with the notice or order. The AER must also exercise its powers under this section in a manner that will or is likely to contribute to the achievement of the national electricity objective: see section 16. (3) A regulatory information notice must not be served, or a general regulatory information order must not be made, solely for the purpose of— (a) investigating breaches or possible breaches of provisions of this Law, the Regulations or the Rules, including offences against this Law; or (b) instituting and conducting proceedings in relation to breaches of provisions of this Law, the Regulations or the Rules, including offences against this Law; or (c) instituting and conducting appeals from decisions in proceedings referred to in paragraph (b); or (e) any application for review of a decision of the AER under Division 3A of Part 6. 28G—Additional matters to be considered for related provider regulatory information instruments (1) This section applies if the AER is intending to— (a) serve a regulatory information notice on a related provider; or (b) make a general regulatory information order that will apply to a class of related providers. (2) In addition to the matters set out in section 28F(2), the AER, in considering whether it is reasonably necessary to serve the regulatory information notice, or make the general regulatory information order, must have regard to— (a) whether the regulated network service provider being supplied a contributing service by the related provider or related providers to which the intended regulatory information instrument will apply can— (i) provide the information to be specified in that instrument; or (ii) prepare, maintain or keep the information to be specified in the particular manner and form to be specified in that instrument; and (b) the extent to which the related provider or related providers to which the intended regulatory information instrument will apply is, or are, supplying a contributing service on a genuinely competitive basis; and (c) the nature of any ownership or control between— (i) the regulated network service provider being supplied a contributing service by a related provider to which the intended regulatory information instrument will apply; and (ii) that related provider; and (d) the nature of any ownership or control as between different related providers supplying the contributing service to the regulated network service provider; and (e) any other matter the AER considers relevant. (3) For the purposes of subsection (2)(b), in considering whether a contributing service is being supplied on a genuinely competitive basis, the AER may take into account— (a) whether there is effective competition in the market for the supply of the contributing service; and (b) whether the related provider supplies the contributing service to a regulated network service provider under a contract, arrangement or understanding entered into with that regulated network service provider following a competitive process for the awarding of the right to enter into that contract, arrangement or understanding involving persons who were not associates of the regulated network service provider. 28H—AER must consult before publishing a general regulatory information order The AER must, in accordance with the Rules, consult with the public in relation to the general regulatory information order it proposes to make before it makes that order. See also section 28ZC about what the AER must and may do after receiving submissions. 28I—Publication requirements for general regulatory information orders (1) A general regulatory information order made under section 28F(1)(b) must be published on the AER's website as soon as practicable after it is made. 28J—Opportunity to be heard before regulatory information notice is served (1) The AER, before serving a regulatory information notice, must— (a) notify, in writing, the regulated network service provider, or the related provider, on whom the AER intends to serve the regulatory information notice of its intention to do so; and (b) give the regulated network service provider a draft of the regulatory information notice it intends to serve. (2) If the regulatory information notice to be served is an urgent notice, the AER must, in a notice under subsection (1)— (a) identify the regulatory information notice to be served as an urgent notice; and (b) give its reasons, in writing, why the regulatory information notice to be served is an urgent notice. (3) A regulatory information notice is an urgent notice if— (a) under the notice the AER will require the regulated network service provider or related provider to provide information to the AER; and (b) that requirement has arisen because the AER considers it must deal with or address a particular matter or thing in order for it to make an AER economic regulatory decision or a rate of return instrument; and (c) the AER considers that, having regard to the time within which it must make that AER economic regulatory decision or rate of return instrument, the time within which the AER requires the information is of the essence. (4) A notice under subsection (1) must— (a) invite the regulated network service provider, or the related provider, to make written representations to the AER as to whether the AER should serve the regulatory information notice on them; and (b) specify the period within which the regulated network service provider, or the related provider, may make the representations. (5) The period that must be specified in accordance with subsection (4) must be— (a) in the case of an urgent notice to be served—a period of not less than 5 business days and not more than 10 business days calculated from the date of the notice under subsection (1); (b) in all other cases—a period of at least 20 business days calculated from the date of the notice under subsection (1). (6) The AER must consider the written representations made in accordance with a notice under subsection (1) before making its decision in accordance with this Division to serve the regulatory information notice. Subdivision 3—Form and content of regulatory information instruments 28K—Form and content of regulatory information instrument (1) A regulatory information instrument— (a) must specify the information required to be— (ii) prepared, maintained or kept in the particular manner and form specified in the instrument; and (b) may specify the manner and form in which the information described in the instrument is required to be— (ii) prepared, maintained or kept; and (c) must state the reasons of the AER for requiring the information described in the instrument to be— (ii) prepared, maintained or kept in the particular manner and form specified in the instrument; and (d) in the case of an instrument requiring information to be provided to the AER, must specify when the information must be provided. (2) In the case of a regulatory information notice, the notice must name the regulated network service provider or the related provider to whom it applies. (3) In the case of a general regulatory information order, the order must specify the class of regulated network service provider, or related provider, to whom the order applies. 28L—Further provision about the information that may be specified in a regulatory information instrument Without limiting section 28K(1)(a), the information that may be required to be provided to the AER, or to be prepared, maintained or kept, may include— (a) historic, current and forecast information (including financial information); (b) information that is or may be derived from other information in the possession or control of the service provider or the related provider to whom the instrument applies; (c) information to enable the AER to verify whether the regulated network service provider to whom the instrument applies is or has been complying with a requirement under the Rules relating to— (i) the operational and structural separation of a regulated network service provider's business; or (ii) arrangements between a regulated network service provider and an associate that provides electricity network services; (d) information to enable the AER to verify compliance with any requirements for the allocation of costs between electricity services under— (i) the Rules; or (ii) a network revenue or pricing determination. 28M—Further provision about manner in which information must be provided to AER or kept Without limiting section 28K(1)(b), a regulatory information instrument may require that the information specified in the instrument— (a) be provided to the AER, or prepared, maintained or kept, on an annual basis or some other basis, including on the occurrence of a specified event or a state of affairs; (b) be provided to the AER, or prepared, maintained or kept, in accordance with specified Rules; (c) be provided to the AER, or prepared, maintained or kept, in accordance with any document, code, standard, rule, specification or method formulated, issued, prescribed or published by the AER or any person, authority or body whether— (i) wholly or partially or as amended by the instrument; or (ii) as formulated, issued, prescribed or published at the time the instrument is served or published or at any time before the instrument is served or published; or (iii) as amended from time to time; The AER may require a service provider to provide information in a form and manner that complies with relevant accounting standards. (d) be verified by way of statutory declaration by an officer of the regulated network service provider, or of a related provider, to whom the instrument applies; (e) be audited— (i) by a class of person specified in the instrument before it is provided to the AER; and (ii) at the expense of the regulated network service provider or related provider to whom the instrument applies. Subdivision 4—Compliance with regulatory information instruments 28N—Compliance with regulatory information notice that is served On being served a regulatory information notice, a person named in the notice must comply with the notice. 28O—Compliance with general regulatory information order (1) On publication of a general regulatory information order in accordance with section 28I(1), a person who is a member of the class of person to which a general regulatory information order applies must comply with the order. (2) Subsection (1) does not apply to a person who has been given an exemption under section 28P. 28OA—Confidentiality issues (1) If a person wishes, in complying with a regulatory information instrument, to give information to the AER in confidence, the person must, when the information is given to the AER— (a) make a claim of confidentiality; and (b) provide reasons in support of the claim, which must include— (i) information about any detriment that might be caused to the person if the information were to be disclosed by the AER; and (ii) information— (A) that is reasonably within the person's knowledge and capacity to give; and (B) that may be relevant to the AER's consideration under section 28ZB of whether such detriment may be considered as outweighing the public benefit in disclosing the information. (2) A person may, in providing reasons in support of a claim under subsection (1) in respect of information received from another person (a third party), include information— (a) that is reasonably within the person's knowledge and capacity to give; and (b) that— (i) is about any detriment that might be caused to the third party if the information were to be disclosed by the AER; and (ii) may be relevant to the AER's consideration under section 28ZB of whether such detriment may be considered as outweighing the public benefit in disclosing the information. (3) A person must, in acting under subsection (1), specifically identify the information in relation to which the claim is made. (4) Information given to the AER in compliance with a regulatory information instrument is not to be regarded as being given to the AER in confidence (or to be confidential in any other respect) unless it is subject to an express claim of confidentiality made in accordance with this section. 28OB—Disclosure of information given to AER in compliance with regulatory information instrument The AER, in relation to information given to the AER in compliance with a regulatory information instrument, is authorised to— (a) if no claim of confidentiality has been made in accordance with section 28OA in relation to the information, disclose the information; or (b) if a claim of confidentiality has been made in accordance with section 28OA in relation to the information, disclose the information in accordance with Division 6. 28P—Exemptions from compliance with general regulatory information order (1) The AER may exempt a person, or a class of person, from complying with section 28O— (a) unconditionally or on specified conditions; or (b) wholly or to the extent as is specified in the exemption. (2) An exemption under this section must be in writing. 28Q—Assumptions where there is non-compliance with regulatory information instrument (a) under a regulatory information instrument the AER— (i) requires a regulated network service provider to provide information to the AER for the purpose of enabling the AER to make an AER economic regulatory decision relating to the regulated network service provider or to make a rate of return instrument; or (ii) requires a related provider to provide information to the AER that is relevant to the making of an AER economic regulatory decision relating to a regulated network service provider or the making of a rate of return instrument; and (b) the regulated network service provider or related provider— (i) does not provide the information to the AER in accordance with the applicable regulatory information instrument; or (ii) provides information that is insufficient (when compared to what was requested under the applicable regulatory information instrument). (2) Without limiting sections 28N and 28O and despite anything to the contrary in this Law or the Rules, the AER— (a) may make the AER economic regulatory decision or the rate of return instrument on the basis of the information the AER has at the time it makes that decision or instrument; and (b) in making that decision or instrument, may make reasonable assumptions (including assumptions adverse to the interests of the regulated network service provider) in respect of the matters the information required under the regulatory information instrument would have addressed had that information been provided as required. Subdivision 5—General 28R—Providing to AER false and misleading information A person must not, in purported compliance with a regulatory information instrument requiring the person to provide information to the AER, provide information to the AER that the person knows is false or misleading in a material particular. See Schedule 2 clause 37B, which provides for criminal penalty amounts to be adjusted every 3 years to reflect movements in the consumer price index. The adjusted amounts are published on the AER's website. 28S—Person cannot rely on duty of confidence to avoid compliance with regulatory information instrument (1) A person must not refuse to comply with a regulatory information instrument on the ground of any duty of confidence. (2) A person incurs, by complying with a regulatory information instrument, no liability for breach of contract, breach of confidence or any other civil wrong. 28T—Legal professional privilege not affected A regulatory information instrument, and sections 28N and 28O, are not to be taken as requiring a person to— (a) provide to the AER information that is the subject of legal professional privilege; or (b) produce a document to the AER the production of which would disclose information that is the subject of legal professional privilege. 28U—Protection against self-incrimination (1) It is a reasonable excuse for a natural person to whom section 28N applies not to comply with a regulatory information notice served on the person requiring the person to provide information to the AER if to do so might tend to incriminate the person, or make the person liable to a criminal penalty, under a law of this jurisdiction or another jurisdiction in Australia (whether or not that other jurisdiction is a participating jurisdiction). (2) It is a reasonable excuse for a natural person to whom section 28O applies not to comply with a general regulatory information order made requiring the person to provide information to the AER if to do so might tend to incriminate the person, or make the person liable to a criminal penalty, under a law of this jurisdiction or another jurisdiction in Australia (whether or not that other jurisdiction is a participating jurisdiction). Division 5—Network service provider performance reports 28V—Preparation of network service provider performance reports (1) Subject to this section, the AER may prepare a report on the financial performance or operational performance of 1 or more network service providers in providing electricity network services. The AER may only prepare a report under subsection (1) if the preparation of the report will or is likely to contribute to the achievement of the national electricity objective: see section 16. (1a) The AER must prepare a report under this section if (and to the extent) required by the Rules. (2) A report prepared under this section may— (a) deal with the financial or operational performance of the network service provider in relation to— (i) complying with (as the case requires) distribution service standards or transmission service standards; and (ii) standards relating to the provision of electricity network services to network service users or end users; and (iii) the profitability and efficiency of network service providers in providing electricity network services; and (b) if the AER considers it appropriate, deal with the performance of the network service provider in relation to other matters or things if that performance is directly related to the performance or exercise by the AER of an AER economic regulatory function or power. (3) A report prepared under this section may include— (a) information provided to the AER by a person in compliance with a regulatory information instrument; and (b) in the case of a report dealing with the financial performance of 1 or more network service providers, a comparison of the profitability or efficiency of the network service providers to which the report relates from the provision of electricity network services by them. (4) Before preparing a report under this section, the AER must, in accordance with the Rules, consult with the persons or bodies specified by the Rules. (4A) Any information that is used to prepare a report under this section may be used by the AER in preparing any report under the National Energy Retail Law or the National Energy Retail Rules, including (but not limited to) a retail market performance report under Division 2 of Part 12 of that Law. (5) The AER may publish a report prepared under this section on its website.