Part 8Functions and powers of the Australian Energy Regulator

Part 8—Functions and powers of the Australian Energy Regulator 204—Functions and powers of AER (including delegations) (1) The AER has the following functions and powers: (a) to monitor compliance by persons with this Law, the National Regulations and the Rules; (b) without limiting paragraph (a), to monitor and report on compliance by regulated entities with this Law, the National Regulations and the Rules; (ba) without limiting paragraphs (a) and (b), in relation to a person undertaking a trial project under a trial Rule or trial waiver, to monitor the conduct and outcomes of the trial project and investigate breaches or possible breaches by the person of— (i) this Law, the National Regulations and the Rules; and (ii) in particular— (A) in the case of a person undertaking a trial project under a trial Rule—the trial Rule and any requirements imposed by the AEMC under section 262B; and (B) in the case of a person undertaking a trial project under a trial waiver—the trial waiver and any conditions to which the trial waiver is subject; (c) to investigate breaches or possible breaches of provisions of this Law, the National Regulations or the Rules, including offences against this Law; (d) to institute and conduct proceedings in relation to breaches of provisions of this Law, the National Regulations or the Rules, including offences against this Law; (e) to institute and conduct appeals from decisions in proceedings referred to in paragraph (d); (f) AER regulatory functions or powers; (fa) AER trial waiver functions; (g) any other functions and powers conferred on it under this Law, the National Regulations or the Rules. (2) The AER has the power to do all things necessary or convenient to be done for or in connection with the performance and exercise of its functions and powers. (3) Any delegation by the AER under section 44AAH of the Competition and Consumer Act 2010 of the Commonwealth extends to, and has effect for the purposes of, this Law, the National Regulations and the Rules. 205—Manner in which AER performs AER regulatory functions or powers The AER must, in performing or exercising an AER regulatory function or power, perform or exercise that function or power in a manner that will or is likely to contribute to the achievement of the national energy retail objective and where relevant, in a manner that is compatible with the development and application of consumer protections for small customers, including (but not limited to) protections relating to hardship customers. Division 2—General information gathering powers 206—Power to obtain information and documents (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, the National Regulations, the Rules or an application Act, the AER may 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 section 300B, 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. (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. Maximum penalty: $6 300. See section 300B, 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. (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 section 300B, 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). Maximum penalty: $6 300. See section 300B, 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 National 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: (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 any 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. Maximum penalty: $6 300. See section 300B, 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 3—Disclosure of confidential information held by AER 207—Confidentiality Section 44AAF of the Competition and Consumer Act 2010 of the Commonwealth has effect for the purposes of this Law, the National Regulations and the Rules as if it formed part of this Law. 208—Authorised disclosure of information given to AER in confidence The AER is authorised to disclose information given to it in confidence in, or in connection with, the performance or exercise of its functions or powers under this Law or the Rules subject to and in accordance with this Division. 209—Disclosure with prior written consent is authorised The AER is authorised to disclose information given to it in confidence if the AER has the written consent to do so of— (a) the person who gave the information; or (b) the person from whom the person referred to in paragraph (a) received that information. 210—Disclosure for purposes of court and tribunal proceedings and to accord natural justice The AER is authorised to disclose information given to it in confidence— (a) for the purposes of civil or criminal proceedings; or (b) for the purposes of proceedings before the Tribunal under Division 7 of Part 13; or (c) for the purposes of according natural justice to a person affected by a decision (however described) of the AER under this Law or the Rules. 210A—Disclosure of information to Energy Security Board The AER is authorised to disclose to the Energy Security Board information given to the AER in confidence in or in connection with the performance of its functions or the exercise of its powers under this Law or the Rules. 211—Disclosure of information given to AER with confidential information omitted (a) in compliance with this Law or the Rules or voluntarily, a person gives the AER information in confidence; and (b) that information is contained in a document with other information. (2) The AER may disclose the document with the information given in confidence omitted. (3) The AER must include a note at the place in the document from which the information given in confidence is omitted to the effect that that information has been omitted from the document. 212—Disclosure of information given in confidence does not identify anyone The AER is authorised to disclose the information given to it in confidence, in compliance with this Law or the Rules or voluntarily, if— (a) it does not disclose any elements of the information that could lead to the identification of the person to whom that information relates; or (b) the manner in which it discloses the information does not identify the person to whom that information relates. 213—Disclosure of information that has entered the public domain The AER is authorised to disclose information given to it in confidence, in compliance with this Law or the Rules or voluntarily, if the information is already in the public domain. 214—Disclosure of protected information authorised if detriment does not outweigh public benefit (1) Despite sections 211, 212 and 213 but subject to this section, the AER is authorised to disclose information given to it in confidence after the restricted period if the AER is of the opinion— (a) that the disclosure of the information would not cause detriment to the person who has given it or to the person from whom that person received it; or (b) that, although the disclosure of the information would cause detriment to such a person, the public benefit in disclosing it outweighs that detriment. (2) Before disclosing the information, the AER must give the person who gave the information— (a) a notice (an initial disclosure notice) stating— (iii) that the person, within the period specified in the notice, may make representations to the AER not to disclose the information; and (3) If the AER is aware that the person who gave the information in turn received the information from another person and is aware of that other person's identity and address, the AER must, before disclosing the information give that other person— (a) a notice (an initial disclosure notice) stating— (iii) that the person, within the period specified in the notice, may make representations to the AER not to disclose the information; and (4) The AER must consider every representation made to it by a person given an initial disclosure notice within the time specified in the notice. (5) The period of time specified in an initial disclosure notice must not be less than 5 business days after the date the initial disclosure notice is given to the person. (6) If after considering the representations, the AER wishes to disclose the information, the AER must give the person given the initial disclosure notice— (a) a notice (a further disclosure notice) stating— (7) For the purposes of this section, the disclosure of anything that is already in the public domain at the time the AER wishes to disclose it cannot cause detriment to any person referred to in subsection (2) or (3). (7a) Despite anything to the contrary in this Law, this section is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to— (a) the AER’s decision under subsection (1) to disclose information given in confidence to the AER; and (b) without limiting paragraph (a), if the AER’s decision under subsection (1) is to disclose the confidential information, the AER’s opinion— (i) that the disclosure of the information would not cause detriment to the person who gave the information or, if the person who gave the information in turn received the information from another person, that other person (as the case may be); or (ii) that, although the disclosure of the information would cause detriment to such a person, the public benefit in disclosing it outweighs that detriment. restricted period means a period of 5 business days after— (a) an initial disclosure notice has been given under this section; or (b) a further disclosure notice has been given under this section, whichever is the later. Division 4—Miscellaneous matters 215—Consideration by the AER of submissions or comments made to it under this Law or the Rules If, under this Law or the Rules, the AER publishes a notice inviting submissions in relation to the making of a decision by the AER, the AER, in making the decision— (a) must consider every submission it receives within the period specified in the notice; and (b) may, but need not, consider a submission it receives after the period specified in the notice expires. 216—Use of information provided under a notice under Division 2 The AER may use information provided to it by a person in compliance with a notice under section 206 for any purpose connected with the performance or exercise of a function or power of the AER under— (a) this Law or the Rules; or (b) the NEL or NER; or (c) the NGL or NGR. 217—AER to inform certain persons of decisions not to investigate breaches, institute proceedings or serve infringement notices (1) If the AER is given information by any person in relation to a breach or a possible breach of this Law, the National Regulations or the Rules by a person but— (a) decides not to investigate that breach or possible breach; or (b) following an investigation, decides not to— (i) institute any proceedings in respect of that breach or possible breach under Part 13; or (ii) serve an infringement notice referred to in section 308 in respect of that breach or possible breach, the AER must notify that person of that decision in writing. (2) This section does not apply: (a) if the person gave the information to the AER anonymously; or (b) to the extent the AER resolved the matter to which the information relates by referring the person to the energy ombudsman. 218—AER Guidelines (a1) The AER must prepare guidelines about the exercise of its powers under section 206, including about— (a) the rights and obligations of persons who are served with a relevant notice under that section; and (b) the penalties applying under that section for non‑compliance with a notice; and (c) the purposes for which information obtained under that section may be used. (1) The AER may prepare guidelines about the matters it will have regard to before— (a) making an application under section 291; or (b) serving an infringement notice under section 308. (2) The AER must publish guidelines prepared under subsection (a1) or (1) on its website. 219—Single documentation (1) This section applies if the AER is authorised to prepare a document under this Law or the Rules for a purpose and is also authorised to prepare a document or documents under either or both— (a) the NEL or NER; or (b) the NGL or NGR, for the same or a similar, related or corresponding purpose. (2) The AER may satisfy the requirements of this Law and the Rules regarding the document under this Law and the Rules by preparing and making (and where relevant publishing) a single document. 220—Use of information (1) The AER may use the information obtained under this Law or the Rules for a purpose connected with the performance or exercise of a function or power of the AER under the NEL, NER, NGL or NGR. (2) The AER may use the information obtained under the NEL, NER, NGL or NGR for a purpose connected with the performance or exercise of a function or power of the AER under this Law or the Rules. (3) This section does not limit any other provision of this Law that provides for the use of information obtained under this Law or the Rules. (4) This section does not apply to information obtained under a RoLR regulatory information notice under Part 6.