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AER Powers and Civil Penalty Regime Consultation: Submission

The Energy Council’s Senior Committee of Officials (SCO) consultation paper of June 2018 sought stakeholder views on two recommendations of the 2013 Review of Enforcement Regimes under the National Energy Laws, namely:

  • amending the national energy laws to give the Australian Energy Regulator (AER) the power to compel individuals to appear before it and give evidence (Recommendation 13); and
  • conducting a targeted review of whether additional provisions of the national energy laws or subordinate instruments should attract the highest maximum civil penalty amount (Recommendation 5).

Energy Consumers Australia supports the AER being given a power to compel individuals to appear before it to give evidence. This extension of the AER’s powers, which is currently restricted to written information and documents, is analogous (but broader than) the Australian Competition and Consumer Commissions (the ACCC) powers under section 155 of the Competition and Consumer Act (Cth) 2010. They will allow the AER to:

  • obtain unedited evidence directly from individuals;
  • remove the need to rely on documentation for answers, particularly for technically complex questions which may require additional explanation; and
  • enable timelier collection of information.

The extension of the AER’s powers for enforcement purposes was specifically endorsed by the ACCC in the Preliminary Report of its Retail Electricity Price Inquiry (the ACCC Inquiry).

Energy Consumers Australia also supports the proposed changes to the civil penalty regime under the National Energy Laws set out in the Paper. Currently, civil penalties are low (for a natural person up to $20,000 and a corporation up to $100,000) with the exception of electricity wholesale market rebidding. In our view, these penalties do not sufficiently encourage better consumer outcomes through compliance with National Energy Laws.

The full submission can be read here.

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