Subdiv 2Use of general information gathering powers

Subdivision 2—Use of general information gathering powers 18EA—Limits on use of section 28 information gathering powers (1) In undertaking a function under this Division the AER must not use the powers under section 28 in respect of a relevant agreement that ceased to have effect more than 5 years before the commencement of this section. (2) The Regulations or the Rules may provide that the powers under section 28 must not be used for a function under this Division for 1 or more classes of relevant agreement. 18EB—Matters to be considered before using section 28 information gathering powers Before using the powers under section 28 for a function under this Division, the AER must— (a) be satisfied the information is reasonably required for the AER to carry out the function; and (b) consider whether the information— (i) is publicly available; or (ii) can be obtained by the AER in another way. Subdivision 3—Market monitoring information notices and market monitoring information orders 18EC—Definitions In this Subdivision— market monitoring information notice means a notice prepared and served by the AER in accordance with this Subdivision requiring the person named in the notice to do 1 or more of the following: (a) give the AER the information or a relevant agreement specified in the notice; (b) prepare, maintain and keep information specified in the notice in a manner and form specified in the notice; market monitoring information order means an order made by the AER in accordance with this Subdivision requiring each person of a class specified in the order to do 1 or more of the following: (a) give the AER the information or a relevant agreement specified in the order; (b) prepare, maintain and keep information specified in the order in a manner and form specified in the order. 18ED—Urgent notices and urgent orders The AER may specify a market monitoring information notice or a market monitoring information order as urgent if the AER reasonably believes that access to the relevant information is time critical. 18EE—Content of notices and orders (1) A market monitoring information notice or a market monitoring information order must specify the following: (a) the information that must be prepared, maintained and kept; (b) the information or agreement that must be given to the AER; (c) if the notice or order requires information to be prepared, maintained and kept—the AER’s reasons for requiring information to be prepared, maintained and kept; (d) if the notice or order requires information or an agreement to be given to the AER— (i) the reasons the AER requires the information or agreement; and (ii) the date by which the information or agreement must be given to the AER; (e) the period in which the notice or order operates. (2) A market monitoring information notice or a market monitoring information order may specify the following: (a) the form in which information or an agreement is to be given to the AER; (b) the way the information or agreement is to be given to the AER. 18EF—Notices and orders may be made for both past and future information (1) A market monitoring information notice or a market monitoring information order may apply to 1 or more of the following: (a) a period before the notice was served or the order was made; (b) a period after the notice was served or the order was made. (2) A market monitoring information notice or a market monitoring information order must not be used to obtain a relevant agreement, or information about a relevant agreement, that ceased to have effect more than 5 years before the commencement of this section. 18EG—Making and serving notices and orders (1) The AER may, if it considers it reasonably necessary for the performance of its functions under this Division— (a) serve a market monitoring information notice on a person named in the notice; and (b) make a market monitoring information order. (2) The AER must, when considering if it is reasonably necessary to serve a market monitoring information notice or make a market monitoring information order— (a) be satisfied the AER requires the information or agreement to carry out a wholesale market monitoring function; and (b) consider the costs that are likely to be incurred by a person responding to the notice or order; and (c) consider whether the information— (i) is publicly available; or (ii) can be obtained by the AER in another way. (3) A market monitoring information notice or a market monitoring information order must not be used for the purpose of— (a) investigating a breach or possible breach of this Law, the Regulations or the Rules; or (b) commencing or conducting proceedings for a breach or possible breach of this Law, the Regulations or the Rules; or (c) commencing or conducting an appeal from a decision in proceedings for a breach or possible breach of this Law, the Regulations or the Rules; or (d) responding to an application for review of a decision of the AER under Part 6 Division 3A. (4) A market monitoring information order must be made in accordance with the Rules. (5) The Regulations or the Rules may provide that a market monitoring information notice or a market monitoring information order must not be used to obtain the following: (a) 1 or more classes of relevant agreement; (b) information about 1 or more classes of relevant agreement. 18EH—AER must consult before making order (1) Before making a market monitoring information order, the AER must consult the public. (2) Consultation must be undertaken in accordance with the Rules. 18EI—Publication of orders The AER must publish a market monitoring information order on the AER’s website as soon as practicable after the order is made. 18EJ—Opportunity to be heard before notice served (1) Before serving a market monitoring information notice, the AER must give the person on whom the AER intends to serve the notice a draft of the notice and an opportunity to make a submission on the draft notice. (2) A draft notice must state— (a) whether the notice is to be issued as a standard notice or an urgent notice; and (b) for an urgent notice—the reasons the AER believes access to the relevant information is time critical. (3) A submission must be made— (a) for a standard notice—within the longer of the following: (i) 20 business days after the draft notice is given to the person; (ii) the period stated in the notice; or (b) for an urgent notice—within the period stated in the draft notice, being at least 5 business days and not more than 10 business days after the draft notice is given to the person. (4) A submission made within the time periods provided for in subsection (3) must be considered by the AER before serving a market monitoring information notice on a person. 18EK—Compliance with notice (1) A person who is named in and served with a market monitoring information notice must comply with the notice. (2) If a market monitoring information notice names 2 or more related bodies corporate, a notice served on the holding company is taken to have been served on each of the named related bodies corporate. 18EL—Compliance with order (1) A person who is a member of a class of persons specified in a market monitoring information order must comply with the order. (2) The AER may, by written notice, exempt a person from compliance with an order— (a) in whole or part; and (b) conditionally or unconditionally. 18EM—Certification of compliance by statutory declaration (1) The AER may direct the recipient of a market monitoring information notice or market monitoring information order to verify that the recipient’s response to the notice or order is accurate and comprehensive by way of a statutory declaration. (2) A direction may require the statutory declaration to be given by a named officer of the recipient or the holder of a specified office for the recipient. (3) A direction must be given in the relevant market monitoring information notice or market monitoring information order. (4) A failure to comply with a direction given under this section is taken to be a failure to comply with the relevant market monitoring information notice or market monitoring information order. 18EN—Subdivision does not limit powers under Division 3 This Subdivision does not limit the operation of Division 3. Subdivision 4—Miscellaneous 18EO—Wholesale market monitoring guidelines (1) The AER must prepare guidelines (wholesale market monitoring guidelines) about the following: (a) the scope of the AER wholesale market monitoring functions; (b) the collection of information for the purposes of this Division; (c) the publication and reporting of information under this Division. (2) Without limiting what may be included in wholesale market monitoring guidelines, the guidelines must include the following: (a) information about the things the AER proposes to consider in assessing— (i) competition in markets; and (ii) the effective functioning of markets; (b) a summary of the compliance obligations of persons who hold information; (c) the processes the AER proposes to adopt in requesting information, including processes designed to minimise the time and resources Registered participants will devote to responding to a request; (d) the type of information the AER expects to routinely request and how frequently it will request that information; (e) the type of information the AER does not expect to request; (f) classes of relevant agreements the AER does not expect to request; (g) the formats in which the AER expects information to be submitted; (h) a general outline of the way the AER will ensure that commercially sensitive information obtained for wholesale market monitoring functions is kept securely; (i) other matters prescribed by the Regulations or the Rules. (3) Before making wholesale market monitoring guidelines the AER must consult in accordance with the Rules. (4) Wholesale market monitoring guidelines must be— (a) made in accordance with the Rules; and (b) published on the AER website within 6 months after commencement of this section. 18EP—Review of wholesale market monitoring powers The MCE is to review the operation of this Division as soon as possible after the period of 4 years and 6 months after the commencement of this section.