Part 5BFunctions and powers of Tribunal

Part 5B—Functions and powers of Tribunal 57B—Functions and powers of Tribunal under this Law (1) The Tribunal has the functions and powers conferred on it under Division 3A of Part 6 and any Regulations made for the purposes of that Division. (2) The Tribunal has power to do all things necessary or convenient to be done for or in connection with the performance of its functions. Part 6—Proceedings under the National Electricity Law 59—Instituting civil proceedings under this Law (1) Proceedings may not be instituted in a relevant court in respect of a breach of a provision of this Law, the Regulations or the Rules that is not an offence provision by any person (other than the AER) except as provided for in this Part. (2) Despite subsection (1), a person may institute a proceeding in the Court in respect of any matter or thing arising out of or that is the subject of a Rule dispute if the Rules provide that a proceeding may be instituted in the Court in respect of that matter or thing. (3) To avoid doubt, nothing in this Part prevents the use of this Law, the Regulations or the Rules as evidence in any proceedings. Division 1A—Enforceable undertakings 59A—Enforceable undertakings (1) The AER may accept a written undertaking given by a person for the purposes of this section in connection with a matter in relation to which the AER has a function or power under this Law or the Rules. (2) A person may withdraw or vary the undertaking at any time, but only with the consent of the AER. (3) If the AER considers that the person who gave the undertaking has breached any of its terms, the AER may apply to the Court for an order under subsection (4). (4) If the Court is satisfied that the person has breached a term of the undertaking, the Court may make any or all of the following orders: (a) an order directing the person to comply with that term of the undertaking; (b) an order directing the person to pay the Commonwealth an amount up to the amount of any financial benefit that the person has obtained directly or indirectly and that is attributable to the breach; (c) an order that the Court considers appropriate directing the person to compensate any other person who has suffered loss or damage as a result of the breach; (d) any other order that the Court considers appropriate. Division 2—Proceedings by the AER in respect of this Law, the Regulations and the Rules 60—Time limit within which AER may institute proceedings (1) A proceeding for a breach of a provision of this Law, the Regulations or the Rules by a person that is not an offence provision may only be instituted by the AER within 6 years of the date on which the breach occurred. (2) A person, other than the AER, may only institute a proceeding for a breach of a conduct provision by another person within 6 years after the date on which the breach occurred. 61—Proceedings for breaches of a provision of this Law, the Regulations or the Rules that are not offences (1) The Court may make an order, on application by the AER on behalf of the Commonwealth, declaring that a person has breached a provision of this Law, the Regulations or the Rules that is not an offence provision. A Supreme Court of a participating jurisdiction that is a State may hear an application by the AER under subsection (1) by operation of subsection 39(2) of the Judiciary Act 1903 of the Commonwealth. (2) If the order declares the person has breached a provision of this Law, the Regulations or the Rules that is not an offence provision, the order may include one or more of the following— (a) an order that the person pay a civil penalty determined in accordance with this Law, the Regulations and the Rules; (b) an order that the person cease, within a specified period, the act, activity or practice constituting the breach; (c) an order that the person take such action, or adopt such practice, as the Court requires for remedying the breach or preventing a recurrence of the breach; (d) an order that the person implement a specified program for compliance with this Law, the Regulations and the Rules; (da) an order that the person perform a specified service that relates to the breach and that is for the benefit of the community or a section of the community; (db) an order that the person, at the person's expense, engage— (i) another person specified in the order; or (ii) another person in a class of persons specified in the order, to perform a service that is specified in the order and that relates to the breach and that is for the benefit of the community or a section of the community; (dc) an order to ensure that the person does not engage in further conduct of the same nature, or similar or related conduct, during the period of the order (which cannot exceed 3 years), including— (i) an order that the person establish a compliance program or an education and training program for employees or other persons involved in the person's business, being a program designed to ensure their awareness of the responsibilities and obligations in relation to the conduct constituting the breach, or similar or related conduct; or (ii) an order that the person revise the internal operations of the person's business that led to the person committing the breach; (dd) an order that the person— (i) disclose, in the way and to the persons specified in the order, specified information, being information that the person has possession of or access to; and (ii) publish, at the person's expense and in the way specified in the order, an advertisement in the terms specified in, or determined in accordance with, the order; (e) an order of a kind prescribed by the Regulations. (2a) An order under subsection (2) paragraph (db) is not enforceable against a person mentioned in paragraph (db)(i) or (ii). (3) If a person has engaged, is engaging or is proposing to engage in any conduct in breach of a provision of this Law, the Regulations or the Rules that is not an offence provision, the Court may, on application by the AER on behalf of the Commonwealth, grant an injunction— (a) restraining the person from engaging in the conduct; and (b) if, in the Court's opinion, it is desirable to do so—requiring the person to do something. (4) The power of the Court under subsection (3) to grant an injunction restraining a person from engaging in conduct of a particular kind may be exercised— (a) if the Court is satisfied that the person has engaged in conduct of that kind—whether or not it appears to the Court that the person intends to engage again, or to continue to engage, in conduct of that kind; or (b) if it appears to the Court that, if an injunction is not granted, it is likely that the person will engage in conduct of that kind—whether or not the person has previously engaged in conduct of that kind and whether or not there is an imminent danger of substantial damage to any person if the person engages in conduct of that kind. 61A—Proceedings for declaration that a person has breached a conduct provision (1) The Court may make an order, on application by a person other than the AER, declaring that another person has breached a conduct provision. (2) If the order declares a person has breached a conduct provision, the order may include one or more of the following: (a) an order that the person cease, within a specified period, the act, activity or practice constituting the breach; (b) an order that the person take such action, or adopt such practice, as the Court requires for remedying the breach or preventing a recurrence of the breach; (c) an order that the person implement a specified program for compliance with this Law, the Regulations and the Rules; (d) an order of a kind prescribed by the Regulations. (3) If a person has engaged, or is engaging or proposing to engage in any conduct in breach of a conduct provision, the Court may, on application by another person (other than the AER), grant an injunction— (a) restraining the first mentioned person from engaging in the conduct; and (b) if, in the Court's opinion, it is desirable to do so—requiring the first mentioned person to do something. (4) The power of the Court under subsection (3) to grant an injunction restraining a person from engaging in conduct of a particular kind may be exercised— (a) if the Court is satisfied that the person has engaged in conduct of that kind—whether or not it appears to the Court that the person intends to engage again, or to continue to engage, in conduct of that kind; or (b) if it appears to the Court that, if an injunction is not granted, it is likely that the person will engage in conduct of that kind—whether or not the person has previously engaged in conduct of that kind and whether or not there is an imminent danger of substantial damage to any person if the person engages in conduct of that kind. 61B—Actions for damages by persons for breach of conduct provisions A person other than the AER who suffers loss or damage by conduct of another person that was done in breach of a conduct provision may recover the amount of the loss or damage by action against that other person in a court of competent jurisdiction. 62—Additional Court orders An order under section 61 by the Court may, in relation to a Registered participant that has been declared in that order to have breached a provision of this Law, the Regulations or the Rules that is not an offence provision, also include either or both of the following— (a) a direction that the Registered participant's loads be disconnected in accordance with the Rules; (b) a direction that the Registered participant be suspended from, as the case requires, purchasing or supplying electricity through the wholesale exchange operated and administered by AEMO. 63—Orders for disconnection in certain circumstances where there is no breach (1) The Court, on application by the AER on behalf of the Commonwealth, may make an order that directs that a Registered participant's loads be disconnected if a relevant disconnection event occurs. relevant disconnection event means an event specified in the Rules as being an event for which a Registered participant's loads may be disconnected, being an event that does not constitute a breach of the Rules. 64—Matters for which there must be regard in determining amount of civil penalty Every civil penalty ordered to be paid by a person declared to have breached a provision of this Law, the Regulations or the Rules must be determined having regard to all relevant matters, including— (a) the nature and extent of the breach; and (b) the nature and extent of any loss or damage suffered as a result of the breach; and (ba) without limiting the operation of section 2AB(1)(c)(ii)(B) or (C) or (d)(ii)(B)—the value of any benefit reasonably attributable to the breach that the person or, in the case of a body corporate, any related body corporate, has obtained, directly or indirectly; and (c) the circumstances in which the breach took place; and (d) whether the person has engaged in any similar conduct and been found to have breached a provision of this Law, the Rules or the Regulations in respect of that conduct; and (e) whether the service provider had in place a compliance program approved by the AER or required under the Rules, and if so, whether the service provider has been complying with that program. 65—Breach of a civil penalty provision is not an offence A breach of a civil penalty provision is not an offence. 66—Breaches of civil penalty provisions involving continuing failure For the purpose of determining the civil penalty for a breach of a civil penalty provision if the breach consists of a failure to do something that is required to be done, the breach is to be regarded as continuing until the act is done despite the fact that any period within which, or time before which, the act is required to be done has expired or passed. 67—Conduct in breach of more than one civil penalty provision (1) If the conduct of a person constitutes a breach of 2 or more civil penalty provisions, proceedings may be instituted under this Law against the person in relation to the breach of any one or more of those provisions. (2) However, the person is not liable to more than one civil penalty under this Law in respect of the same conduct. Clause 39 of Schedule 2 to this Law sets out further provisions in relation to double jeopardy. 67A—Conduct in breach of reliability obligation civil penalty provision (1) This section applies for the purpose of determining the civil penalty for a breach of the reliability obligation civil penalty provision. (2) If the conduct of a person constitutes a breach of the reliability obligation civil penalty provision on 2 or more occasions in relation to the same reliability gap period, proceedings may be instituted under this Law against the person in relation to the breach of the provision on any 1 or more of those occasions. (3) However, the person is not liable to more than 1 civil penalty under this Law in respect of a breach of the reliability obligation civil penalty provision for 1 reliability gap period. 68—Persons involved in breach of civil penalty provision or conduct provision (1) A person must not— (a) aid, abet, counsel or procure a breach of a civil penalty provision or conduct provision by another person; or (b) be in any way directly or indirectly knowingly concerned in, or a party to, a breach of a civil penalty provision or conduct provision by another person. (2) This Law applies to a person who breaches subsection (1) in relation to a civil penalty provision or conduct provision as if the person were a person who has breached the civil penalty provision or conduct provision. 68A—Attempt to breach civil penalty provision A person who attempts to commit a breach of a civil penalty provision commits a breach of that provision. 69—Civil penalties payable to the Commonwealth If a person is ordered to pay a civil penalty, the penalty is payable to the Commonwealth.