Part 10Access Disputes

Part 10—Access Disputes Division 1—Interpretation and application 123—Definitions dispute hearing means a hearing conducted by the AER for the purpose of making an access determination; party, in relation to an access dispute, has the meaning given by section 127. 124—Part does not limit how disputes about access may be raised or dealt with This Part is not to be taken to limit how a dispute about access to an electricity network service may be raised or dealt with. Division 2—Notification of access dispute 125—Notification of access dispute (1) Subject to this section, if a prospective network service user or network service user is unable to agree with a network service provider about 1 or more aspects of access to an electricity network service provided by means of, or in connection with— (a) a distribution system; or (b) a transmission system, owned, controlled or operated by that network service provider, the prospective network service user, network service user or network service provider may notify the AER, in writing, that an access dispute exists. Access dispute is defined in section 2A. (2) A notification must be accompanied by the fee (if any) prescribed by the Regulations. (3) On receiving a notification under subsection (1), the AER must notify, in writing, of the access dispute— (a) the network service provider, if a prospective network service user or network service user (as the case requires) notified the AER of the access dispute under subsection (1); (b) the prospective network service user or network service user (as the case requires), if the network service provider notified the AER of the access dispute under subsection (1). 126—Withdrawal of notification (1) The person who notified the AER of an access dispute under section 125(1) may withdraw that notification at any time before the AER makes an access determination in respect of that access dispute. (2) The notification must be withdrawn by notice in writing. (3) If the notification is withdrawn, it is taken for the purposes of this Part never to have been given. 127—Parties to an access dispute The parties to an access dispute are— (a) the person notifying the AER of an access dispute under section 125(1); and (b) a person notified by the AER under section 125(3); and (c) if the AER is of the opinion that the resolution of the access dispute may involve requiring another person to do something—that other person; and (d) any other person who applies in writing to be made a party and is accepted by the AER as having a sufficient interest. Division 3—Access determinations 128—Determination of access dispute (1) Unless the AER terminates an access dispute under section 131, the AER must, subject to this Part and the Rules, make a determination on access by (as the case requires) the prospective network service user or network service user. A delegate of the AER may make the access determination. See section 17 of this Law and section 44AAH of the Competition and Consumer Act 2010 of the Commonwealth. (2) In making an access determination the AER must comply with this Part and the Rules. (3) An access determination must— (a) be in writing; and (b) include a statement of reasons for making the determination; and (c) be given to the parties without delay. (4) An access determination has effect on and from the date specified in the determination. 129—AER may require parties to mediate, conciliate or engage in an alternative dispute resolution process (1) The AER may require the parties, in accordance with the Rules, to mediate, conciliate or engage in another alternative dispute resolution process for the purpose of resolving the access dispute. (2) A party must comply with a requirement under subsection (1). 130—Access determination must give effect to network revenue or pricing determination The AER must, in making an access determination, give effect to a network revenue or pricing determination— (a) applying to the electricity network services provided, or to be provided, that are the subject of the access dispute; and (b) in effect at the time the determination is made, (even though that determination may not have been in force when notification of the access dispute was given). 131—AER may terminate access dispute in certain cases (1) The AER may at any time terminate an access dispute (without making an access determination) if the AER considers that— (a) the notification of the access dispute was vexatious; or (b) the subject matter of the dispute is trivial, misconceived or lacking in substance; or (c) the party who notified the access dispute had, but did not avail itself of, an opportunity to engage in negotiations in good faith with the other party before that notification; or (d) a specified dispute termination circumstance has occurred. (2) Subject to section 133, the AER may also terminate an access dispute (without making an access determination) if the AER considers that the aspect of access about which there is a dispute is expressly or impliedly dealt with under an agreement between, as the case requires— (a) the prospective network service user and network service provider; (b) the network service user and network service provider. specified dispute termination circumstance means a circumstance specified by the Rules as being a circumstance, the occurrence of which, entitles the AER to terminate an access dispute (without making an access determination). 132—AER must terminate access dispute if there is genuine competition Despite anything to the contrary in this Part, the AER must terminate an access dispute (without making an access determination) if the AER considers that the electricity network service the subject of the dispute could be provided on a genuinely competitive basis by a person other than the network service provider or an associate of the provider. 133—Restrictions on access determinations (1) The AER must not make an access determination that— (a) would have the effect of preventing a network service user obtaining a sufficient amount of an electricity network service to be able to meet the network service user's reasonably anticipated requirements, measured at the time the access dispute was notified; or (b) subject to subsection (2), is inconsistent with a connection agreement between the parties to the access dispute. (2) The AER may make an access determination that is inconsistent with a connection agreement between the parties to the access dispute if the AER is of the opinion the connection agreement affects the quality and security of electricity network service being provided to another person. connection agreement means an agreement between a network service provider and— (a) an owner, controller or operator of a generating system about the connection of that system to a transmission system or distribution system owned, controlled or operated by the network service provider; or (b) a person who purchases electricity supplied through a transmission system or distribution system owned, controlled or operated by the network service provider about the connection of that person's loads to that transmission system or distribution system; or (c) another network service provider about the connection of transmission systems or distribution systems (as the case requires) owned, controlled or operated by the providers. 134—Access determination need not require the provision of an electricity network service An access determination may, but need not, require a network service provider to provide an electricity network service to a prospective network service user. Division 4—Variation of access determinations 135—Variation of access determinations (1) The AER may vary an access determination on the application of any party to the determination. However, it cannot vary the final determination if any other party objects. If the parties cannot agree on a variation, a new access dispute can be notified under section 125. (2) Section 133 applies to a variation under this section as if— (a) an access dispute arising out of the access determination had been notified when the application was made to the AER for the variation of the determination; and (b) the variation were the making of an access determination in the terms of the varied determination. Division 5—Compliance with access determinations 136—Compliance with access determination A party to an access dispute in respect of which an access determination is made must comply with the access determination. Division 6—Access dispute hearing procedure 137—Hearing to be in private (1) Subject to subsection (2), a dispute hearing is to be in private. (2) If the parties agree, a dispute hearing or part of a dispute hearing may be conducted in public. (3) The AER may give written directions as to the persons who may be present at a dispute hearing that is conducted in private. (4) In giving directions under subsection (3), the AER must have regard to the wishes of the parties and the need for commercial confidentiality. 138—Right to representation In a dispute hearing a party may appear in person or be represented by another person. 139—Procedure of AER (1) In a dispute hearing the AER— (a) is not bound by technicalities, legal forms or rules of evidence; and (b) must act as speedily as a proper consideration of the access dispute allows, having regard to the need carefully and quickly to inquire into and investigate the access dispute and all matters affecting the merits, and fair settlement, of the access dispute; and (c) may inform itself about any matter relevant to the access dispute in any way it thinks appropriate. (2) The AER may determine the periods that are reasonably necessary for the fair and adequate presentation of the respective cases of the parties in the dispute hearing, and may require that the cases be presented within those periods. (3) The AER may require evidence or argument to be presented in writing, and may decide the matters on which the AER will hear oral evidence or argument. (4) The AER may determine that a dispute hearing is to be conducted by— (a) telephone; or (b) closed circuit television; or (c) any other means of communication. (5) The Rules may make further provision about the procedure for the conduct of dispute hearings. 140—Particular powers of AER in a hearing (1) The AER may do any of the following things for the purpose of determining an access dispute: (a) give a direction in the course of, or for the purpose of, a dispute hearing; (b) hear and determine the access dispute in the absence of a party who has been given notice of the dispute hearing; (c) sit at any place; (d) adjourn to any time and place; (e) refer any matter to an independent expert and accept the expert's report as evidence. (2) The AER may make an interim determination. 141—Disclosure of information (1) The AER may give an oral or written order to a person not to divulge or communicate to anyone else specified information that was given to the person in the course of an access dispute unless the person has the AER's permission. (2) A person must not, without reasonable excuse, refuse or fail to comply with an order under subsection (1). (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. 142—Power to take evidence on oath or affirmation (1) The AER may take evidence on oath or affirmation and for that purpose the AER may administer an oath or affirmation. (2) The AER may summon a person to appear before the AER to— (a) give evidence; or (b) produce such documents (if any) as are referred to in the summons; or (c) give evidence and produce such documents (if any) as are referred to in the summons. (3) The powers in this section may be exercised only for the purposes of hearing and determining an access dispute. 143—Failing to attend as a witness A person who is served, as prescribed by the Regulations, with a summons to appear as a witness before the AER must not, without reasonable excuse— (a) fail to attend as required by the summons; or (b) fail to appear and report himself or herself from day to day unless excused, or released from further attendance, by the AER. 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. 144—Failing to answer questions etc (1) A person appearing as a witness before the AER must not, without reasonable excuse— (a) refuse or fail to be sworn or to make an affirmation; or (b) refuse or fail to answer a question that the person is required to answer by the AER; or (c) refuse or fail to produce a document that he or she is required to produce by a summons under this Part served on him or her as prescribed by the Regulations. 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. (2) It is a reasonable excuse for the purposes of subsection (1) for a natural person to refuse or fail to answer a question or produce a document on the ground that the answer or the production of the document might— (a) tend to incriminate the person; or (b) expose the person to a criminal penalty. (3) Subsection (2) does not limit what is a reasonable excuse for the purposes of subsection (1). 145—Intimidation etc 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 produce, or has produced, documents to the AER; or (d) proposes to appear, or has appeared, as a witness before the AER. 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. 146—Party may request AER to treat material as confidential (1) A party in a dispute hearing may— (a) inform the AER that, in the party's opinion, a specified part of a document contains confidential information; and (b) request the AER not to give a copy of that part to another party. (2) On receiving a request, the AER must— (a) inform the other party or parties that the request has been made and of the general nature of the matters to which the relevant part of the document relates; and (b) ask the other party or parties whether there is any objection to the AER complying with the request. (3) If there is an objection to the AER complying with the request, the party objecting may inform the AER of the objection and of the reasons for it. (4) After considering— (a) a request; and (b) any objection; and (c) any further submissions that any party has made in relation to the request, the AER may decide— (d) not to give the other party or parties a copy of so much of the document as contains confidential information that the AER thinks should not be given; or (e) to give the other party or another specified party a copy of the whole, or part, of the part of the document that contains confidential information subject to a condition that the party give an undertaking not to disclose the information to another person except to the extent specified by the AER and subject to such other conditions as the AER determines. 147—Costs (1) Each party is to bear its own costs in a dispute hearing except to the extent that an order under this section specifies otherwise. (2) At any time, the AER may order that a party pay all or a specified part of the costs of another party in a dispute hearing. (3) The AER may make an order under subsection (2) only if satisfied that it is fair to do so, having regard to— (a) whether a party has conducted itself in the dispute hearing in a way that unnecessarily disadvantaged another party by conduct such as— (i) failing to comply with an order or direction of the AER without reasonable excuse; (ii) failing to comply with this Law, the Regulations or the Rules; (iii) asking for an adjournment as a result of subparagraph (i) or (ii); (iv) causing an adjournment; (v) attempting to deceive another party or the AER; (vi) vexatiously conducting an access dispute; (b) whether a party has been responsible for prolonging unreasonably the time taken to complete the dispute hearing; (c) the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law; (d) the nature and complexity of the access dispute; (e) any other matter the AER considers relevant. (4) A party to whom an order made under subsection (2) is directed must comply with the order. (5) If the AER considers that the representative of a party, rather than the party, is responsible for conduct described in subsection (3)(a) or (b), the AER may order that the representative in his or her own capacity compensate another party for any costs incurred unnecessarily. (6) Before making an order under subsection (5), the AER must give the representative a reasonable opportunity to be heard. (7) A representative of a party to whom an order made under subsection (5) is directed must comply with the order. (8) If the AER makes an order for costs before the end of an access dispute, the AER may require that the order be complied with before it continues with the proceeding. (9) If the AER makes an order for costs, the AER may fix the amount of costs itself. (10) This section applies to costs incurred by the parties in a dispute hearing even if the notification of the access dispute to which the dispute hearing relates is withdrawn. 148—Outstanding costs are a debt due to party awarded the costs Costs that are payable under an order under section 147(4) or (7)— (a) are a debt due to the party to whom the AER has ordered that they be paid; and (b) may be recovered by that party in a court of competent jurisdiction. Division 7—Joint access dispute hearings 149—Definition nominated dispute has the meaning given by section 150(2). 150—Joint dispute hearing (a) the AER is conducting 2 or more dispute hearings at a particular time; and (b) 1 or more matters are common to the access disputes in relation to which the dispute hearings are being conducted. (2) The AER may, by notice in writing, decide that it will hold a joint dispute hearing in respect of such of those access disputes (the nominated disputes) as are specified in the notice. (3) The AER may do so only if it considers this would be likely to result in the nominated disputes being resolved in a more efficient and timely manner. 151—Consulting the parties (1) Before making a decision under section 150(2), the AER must give each party to each nominated dispute a notice in writing— (a) specifying what the AER is proposing to do; and (b) inviting the party to make a written submission on the proposal to the AER within 10 business days after the notice is given. (2) The AER must have regard to any submission so made in deciding whether to do so. The AER may have regard to any other matter it considers relevant. 152—Constitution and procedure of AER for joint dispute hearings Division 6 applies to the joint dispute hearing in a corresponding way to the way in which it applies to a particular dispute hearing. 153—Record of proceedings etc (1) The AER as constituted for the purposes of the joint dispute hearing may have regard to any record of the proceedings of the dispute of any nominated dispute. (2) The AER as constituted for the purposes of the dispute hearing of each nominated dispute may, for the purposes of making an access determination in relation to the access dispute to which that hearing relates— (a) have regard to any record of the proceedings of the joint dispute hearing; and (b) adopt any findings of fact made by the AER as constituted for the purposes of the joint dispute hearing.