In October 2016, the Australian Competition Tribunal (the Tribunal) announced improvements to the community consultation process that forms part of its consideration of appeals of certain Australian Energy Regulator (AER) decisions. The Tribunal is considering applications for review from five Victorian networks and the ACT gas network of their five-year revenue determinations.

Energy Consumers Australia welcomed this development, which invited participants to make written submissions of up to 10 pages. Importantly, the Tribunal invited participants to comment on the material that the networks, the AER and the Victorian Minister for Energy, Environment and Climate Change (the Minister) had put before the Tribunal.

In this submission, Energy Consumers Australia focused on issues related to the legal framework governing how the Tribunal must consider appeals of AER revenue determinations. The submission argued that the law dictates that promoting the long-term interest of consumers is the Tribunal’s (and the AER’s) primary task. Achieving economically efficient investment in, operation and use of energy networks is the means to that end, rather than the primary objective to be pursued.

The submission also addressed the recent decision by the Tribunal in South Australian Power Networks (SAPN) appeal of its AER revenue determination. In that matter, the Tribunal found that the AER had not made any errors and did not, therefore, vary the AER’s original decision. Crucially, the Tribunal noted that if it had found errors by the AER, the material provided in the community consultation for that review may have proved significant in determining whether varying the AER’s original determination would have resulted in a materially preferable National Electricity Objective decision (of which the Tribunal must be satisfied before it can alter an AER determination).

The full submission can be read here.