Subdiv 6General

Subdivision 6—General 158—Providing false or misleading information A person must not, in purported compliance with a RoLR regulatory information notice requiring the person to provide information, provide information 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. 159—Person cannot rely on duty of confidence to avoid compliance with RoLR regulatory information notice (1) A person must not refuse to comply with a RoLR regulatory information notice on the ground of any duty of confidence. (2) A person incurs, by complying with a RoLR regulatory information notice, no liability for breach of contract, breach of confidence or any other civil wrong. 160—Legal professional privilege not affected A RoLR regulatory information notice, and section 156, are not to be taken as requiring 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. 161—Protection against self-incrimination It is a reasonable excuse for a natural person to whom section 156 applies not to comply with a RoLR regulatory information notice served on the person requiring the person to provide information 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 participating jurisdiction. Division 8—RoLR plans 162—RoLR plans (1) The AER must, in consultation with AEMO and Ministers of participating jurisdictions, develop, make and maintain RoLR plans. (2) A RoLR plan is a plan for— (a) the procedures to be followed by the participants in the event of a RoLR event, including direct communication with customers of a failed retailer; and (b) regular exercises to be carried out by the participants in the plan. (3) A RoLR plan must not be inconsistent with the RoLR Procedures. (4) The participants in a RoLR plan are— (a) the AER; and (b) AEMO; and (c) the registered RoLR or registered RoLRs nominated by the AER; and (d) the distributor or distributors nominated by the AER; and (e) other parties nominated by the AER. (5) The AER must ensure that the participants in a RoLR plan— (a) are consulted in the development and maintenance of the plan; and (b) participate in regular exercises as provided in the plan. (6) Each participant in a RoLR plan must use its best endeavours— (a) to comply with the plan; and (b) to assist in the development and maintenance of the plan; and (c) to participate in regular exercises as provided in the plan. (7) A RoLR plan must be published on the AER's website. (8) The AER must ensure that a RoLR plan is reviewed at such times as it considers appropriate and kept up to date to accord with the review outcomes. 163—Contents of RoLR plans Without limitation, a RoLR plan may— (a) provide that external exercises are to be held at such times as the AER considers appropriate and that a report on the conduct of each exercise be published on the AER's website; and (b) include, in the event of a RoLR event, strategies to quickly and effectively communicate— (i) to the affected community—general details of the event; and (ii) to affected small customers—details of the event and available options; and (iii) to affected large customers—details regarding prices for energy, available alternative retailers and how they can quickly disconnect their energy supply if necessary; and (iv) to Ministers of participating jurisdictions—details of the event; and (v) to departmental and other officers in affected jurisdictions—details of the event; and (vi) to energy ombudsmen in affected jurisdictions—details of the event; and (vii) to the failed retailer and any insolvency official of the failed retailer—information regarding their obligations; and (viii) with AEMO—details regarding the event with a view to ensuring that resources are available to effect customer transfers; and (ix) with affected distributors—details of the event and information regarding their obligations; and (x) with the designated RoLR or designated RoLRs—details of the event and information regarding its or their obligations; and (c) include, in the event of a RoLR event, strategies for the designated RoLR to quickly and effectively communicate to affected small customers— (i) details of what happens with their existing contracts with the failed retailer, which must include details of the effect of sections 140 and 141 as to hardship customers, customers on life support, feed‑in arrangements, termination of direct debits (including Centrepay), refunds of advance payments, security deposits, credits on prepayment meter system accounts and uncompleted service orders; and (ii) details as to the designated RoLR and the arrangements that apply for the sale of energy; and (iii) details of any relevant designated contract under section 148B; and (d) include a mechanism whereby— (i) details of customers that are hardship customers; and (ii) details of premises registered as having life support equipment, are quickly and effectively communicated to the relevant designated RoLR. Division 9—RoLR cost recovery schemes 164—Operation of this Division, schemes and determinations This Division and a RoLR cost recovery scheme under this Division have effect despite anything in the following: (a) the NEL and NER; (b) the NGL and NGR; (c) any distribution determination; (d) any applicable access arrangement. 165—RoLR cost recovery A registered RoLR (including but not limited to a designated RoLR) cannot recover costs incurred in relation to the RoLR scheme except in accordance with a RoLR cost recovery scheme determined under this Division. 166—RoLR cost recovery schemes (1) The AER must, on application by a registered RoLR, determine a RoLR cost recovery scheme for the RoLR. (2) The application must be in the form and contain the information specified in the AER RoLR Guidelines. (3) A RoLR cost recovery scheme is a scheme designed for the recovery by the RoLR of costs incurred by the RoLR in relation to the RoLR scheme, including— (a) in the case of a default RoLR only—costs incurred in preparing for RoLR events; and (b) in the case of a designated RoLR only—costs incurred on and after a RoLR event, including— (i) costs paid to an insolvency official of a failed retailer in respect of anything done under this Part; and (ii) costs paid to a distributor by the RoLR for service orders and not recoverable from the customers concerned or from the failed retailer; and (iii) other administration costs associated with the RoLR event; and (iv) additional energy costs in respect of customers acquired as a result of the RoLR event; and (v) financing costs for additional credit support provided to AEMO for the acquired customers; and (vi) financing costs to cover the period between a cost being incurred by the designated RoLR and the cost being recovered under the designated RoLR's cost recovery scheme. 1 Regarding subparagraph (i) above, see section 171. 2 Regarding subparagraph (ii) above, section 141(7) deals with the case where a customer has paid the failed retailer for a service order and the order has not been completed as at the transfer date. (4) The AER may, after receipt of an application made under subsection (1), request from the retailer such additional information as the AER considers reasonably necessary for it to determine the application. The retailer must comply with any such request. (4a) A registered RoLR may give an undertaking that the RoLR, under its cost recovery scheme— (a) will not seek to recover a particular category of cost; or (b) will seek to recover only a specified percentage of its incurred costs; or (c) will seek to recover its incurred costs only up to a specified amount. (4b) The undertaking may be given by the RoLR to the AER— (a) at the same time as it makes its application under subsection (1); or (b) at another time for the purposes of including the undertaking as part of its cost recovery scheme. (4c) On the acceptance by the AER of an undertaking given under subsection (4b)(b), the undertaking becomes part of the RoLR cost recovery scheme and the scheme must be updated by the AER to reflect this. (5) The AER must publish on its website a notice of the application. (5a) The notice must invite submissions on the application. (5b) The notice must specify a period for making submissions of at least 20 business days. (5c) The AER may, if it is satisfied that the costs are clearly identifiable and quantifiable— (a) not include in the notice the invitation to make submissions on the application; or (b) specify a period of less than 20 business days in the notice. (5d) Subsections (5) to (5c) (inclusive) do not apply to an undertaking given under subsection (4b)(b). (6) The AER must decide whether to grant or refuse the application. (7) The AER must, when making its decision on the application, be guided by the following principles: (a) the registered RoLR should be provided with a reasonable opportunity to recover the reasonable costs that it incurs with respect to the RoLR scheme; (b) the recovery of costs should allow for a return commensurate with the regulatory and commercial risks with respect to the RoLR scheme; (c) costs not prudently incurred by the registered RoLR in meeting its obligations should not be recoverable. The AER must also have regard to the national energy retail objective. (8) The AER may, in determining a RoLR cost recovery scheme, limit either generally or in particular cases or classes of cases the costs (and the amount of those costs) that are recoverable. (9) Without limitation, the AER's determination of a RoLR cost recovery scheme may, so far as it relates to or affects tariffs payable by customers, differ between customers and classes of customers. (10) The AER must publish a copy of its decision on its website. 167—RoLR cost recovery scheme distributor payment determination (1) The AER must, as part of its determination with respect to a RoLR cost recovery scheme under this Division and after consultation with the distributor or distributors concerned, make a determination (a RoLR cost recovery scheme distributor payment determination) that one or more distributors are to make payments to satisfy the full costs determined to be recoverable under the scheme. (2) A RoLR cost recovery scheme distributor payment determination is taken to be both a regulatory change event and a positive change event for the purposes of the NER. (3) Distributors are required to make payments to a RoLR in accordance with their liability under a RoLR cost recovery scheme distributor payment determination. (4) The distribution determination or applicable access arrangement (as the case may be) of each distributor who is to make payments under a RoLR cost recovery scheme distributor payment determination is taken to be amended so that any payments the distributor so makes are taken to be— (a) in the case of electricity—positive pass through amounts approved under the NER; or (b) in the case of gas—approved cost pass throughs allowing variation of the distributor's reference tariffs. (5) Notwithstanding any other provision of this Division, if a designated RoLR (other than a default RoLR) agrees with the AER that it will seek to recover no costs or only a particular figure or percentage of its costs, the designated RoLR may not afterwards seek to recover any more than as agreed. See also section 133(2). (6) Section 23(5) does not apply to a retailer in respect of a variation of its standing offer prices as a result of a RoLR cost recovery scheme. 168—Amendment of schemes and determinations (1) A cost recovery scheme, including a RoLR cost recovery scheme, or a RoLR cost recovery scheme distributor payment determination may be amended by determination of the AER— (a) on application by, or after consultation with, the registered RoLR and after consultation with the distributors who are or will be affected; or (b) on application by a distributor who is or will be affected and after consultation with the registered RoLR and other distributors who are or will be affected. (2) The AER may make a determination to amend the scheme or determination if the AER— (a) is satisfied that there is— (i) a material error in the scheme or determination; or (ii) the scheme or determination is deficient because of false or misleading information given to the AER; and (b) has consulted with the registered RoLR and any distributor who may be affected by the change. Division 10—Miscellaneous 169—Information to be included in customer retail contracts All customer retail contracts for small customers must include a notice explaining what will happen to the customer's arrangements for the purchase of energy if a RoLR event occurs. 170—Application for retailer authorisation by failed retailer or associate (1) If a failed retailer or an associate of a failed retailer applies for a retailer authorisation, the AER may— (a) refuse the application on the ground that the applicant is a failed retailer or an associate of a failed retailer; or (b) grant the application on the condition that the applicant pays a proportion or the whole of the costs of a prior RoLR event as determined by the AER. (2) Any payment determined by the AER under subsection (1) is to be made to the relevant distributors (as determined by the AER) and— (a) in the case of electricity—the determination by the AER is taken to be a regulatory change event and negative change event for the purposes of the NER and the payment is taken to be a negative pass through amount approved by the AER under the NER; and (b) in the case of gas—the payment is taken to be an approved pass through allowing variation of a distributor's reference tariffs. (3) Subsection (1) does not limit the operation of Part 5 in relation to an application referred to in that subsection. associate, in relation to a failed retailer, has the same meaning it would have under Division 2 of Part 1.2 of the Corporations Act 2001 of the Commonwealth if sections 13, 16(2) and 17 did not form part of that Act. 171—Reimbursement of insolvency official (1) In the event of a RoLR event, the insolvency official of a failed retailer is entitled to be indemnified by the relevant designated RoLR for the official's reasonable costs of complying with applicable requirements of the RoLR scheme, a RoLR notice or a RoLR regulatory information notice. (2) Any dispute about the insolvency official's reasonable costs is to be dealt with by the Court in the same way as a dispute as to a liquidator's remuneration is dealt with under section 473 of the Corporations Act 2001 of the Commonwealth. 172—AER report on RoLR event (1) The AER must prepare, in consultation with AEMO, a report for the MCE on a RoLR event and provide it to the MCE within 80 business days of the transfer date or such later time as the MCE agrees. (2) The report— (a) must address the facts and circumstances that gave rise to the event; and (b) must describe the actions that the AER, AEMO and the designated RoLRs took with respect to the event; and (c) must, if the MCE has in writing requested it to do so, address or describe any other matter that the MCE so requests; and (d) may contain recommendations as to the handling of future events. (3) The report may contain information given to the AER in confidence but if it does so, it must identify that information in the report. 173—Immunity (1) A protected person does not incur any civil monetary liability for an act or omission done or made under or for the purposes of the RoLR scheme unless the act or omission is done or made in bad faith. (2) Without limiting subsection (1), a protected person does not incur any civil monetary liability in respect of the termination of a contract for the sale of energy under section 141. protected person means— (a) the AER; or (b) AEMO; or (c) a designated RoLR; or (d) a distributor; or (e) an officer or employee of, or another person whose services are used by, a person referred to in paragraphs (a) to (d) (including, without limitation, any staff or consultants who are made available to assist the AER to exercise its functions). 174—Authorised disclosure of information To the extent that the information is personal information within the meaning of the Privacy Act 1988 of the Commonwealth or of any Act of a participating jurisdiction relating to privacy— (a) disclosure of that information to the AER, AEMO, a distributor or a designated RoLR for or in connection with the RoLR scheme is authorised by this Law; and (b) use of that information for or in connection with the RoLR scheme is authorised by this Law. 175—Corporations Act displacement This Part is declared to be a Corporations legislation displacement provision for the purposes of section 5G of the Corporations Act 2001 of the Commonwealth in relation to the provisions of Chapter 5 of that Act. Section 5G of the Corporations Act 2001 provides that if a State or Territory law declares a provision of a State or Territory law to be a Corporations legislation displacement provision, any provision of the Corporations legislation with which the State or Territory provision would otherwise be inconsistent does not apply to the extent necessary to avoid the inconsistency. Part 7—Small compensation claims regime 176—Small compensation claims regime (1) This Division establishes a small compensation claims regime to enable small customers to make small claims for compensation from distributors who provide customer connection services to their premises. (2) The regime does not involve having to establish fault, negligence or bad faith on the part of a distributor in order to receive compensation from the distributor under the regime. 177—Definitions claimable incident—see section 178; compensable matter—see section 179; discretionary range means the range of amounts between the maximum amount and the median amount (inclusive of the former but not the latter); mandatory range means the range of amounts between the minimum amount and the median amount (inclusive of both); maximum amount—see section 180; median amount—see section 182; minimum amount—see section 181; property damage means damage to tangible property located on the premises of a small customer, and includes loss or destruction of tangible property located on those premises; repeat claimant—see section 183. The discretionary and mandatory ranges, and the maximum, median and minimum amounts, can be represented as follows: