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This is a Bill, not an Act. For current law, see the Acts databases.
2019
The Parliament of the
Commonwealth of Australia
HOUSE OF REPRESENTATIVES
Presented and read a first time
Treasury Laws Amendment (Prohibiting
Energy Market Misconduct) Bill 2019
No. , 2019
(Treasury)
A Bill for an Act to amend the Competition and
Consumer Act 2010, and for related purposes
No. , 2019
Treasury Laws Amendment (Prohibiting Energy Market Misconduct)
Bill 2019
i
Contents
1
Short title ........................................................................................... 1
2
Commencement ................................................................................. 1
3
Schedules ........................................................................................... 2
Schedule 1--Prohibited conduct in the electricity industry
3
Part 1--Main amendments
3
Competition and Consumer Act 2010
3
Part 2--Other amendments
29
Competition and Consumer Act 2010
29
Part 3--Application
31
Schedule 2--AER information gathering
32
Competition and Consumer Act 2010
32
No. , 2019
Treasury Laws Amendment (Prohibiting Energy Market Misconduct)
Bill 2019
1
A Bill for an Act to amend the Competition and
1
Consumer Act 2010, and for related purposes
2
The Parliament of Australia enacts:
3
1 Short title
4
This Act is the Treasury Laws Amendment (Prohibiting Energy
5
Market Misconduct) Act 2019.
6
2 Commencement
7
(1) Each provision of this Act specified in column 1 of the table
8
commences, or is taken to have commenced, in accordance with
9
column 2 of the table. Any other statement in column 2 has effect
10
according to its terms.
11
12
2
Treasury Laws Amendment (Prohibiting Energy Market Misconduct)
Bill 2019
No. , 2019
Commencement information
Column 1
Column 2
Column 3
Provisions
Commencement
Date/Details
1. Sections 1 to 3
and anything in
this Act not
elsewhere covered
by this table
The day this Act receives the Royal Assent.
2. Schedule 1
The day after the end of the period of 6
months beginning on the day this Act
receives the Royal Assent.
3. Schedule 2
The day this Act receives the Royal Assent.
Note:
This table relates only to the provisions of this Act as originally
1
enacted. It will not be amended to deal with any later amendments of
2
this Act.
3
(2) Any information in column 3 of the table is not part of this Act.
4
Information may be inserted in this column, or information in it
5
may be edited, in any published version of this Act.
6
3 Schedules
7
Legislation that is specified in a Schedule to this Act is amended or
8
repealed as set out in the applicable items in the Schedule
9
concerned, and any other item in a Schedule to this Act has effect
10
according to its terms.
11
Prohibited conduct in the electricity industry Schedule 1
Main amendments Part 1
No. , 2019
Treasury Laws Amendment (Prohibiting Energy Market Misconduct)
Bill 2019
3
Schedule 1--Prohibited conduct in the
1
electricity industry
2
Part 1--Main amendments
3
Competition and Consumer Act 2010
4
1 After Part XIC
5
Insert:
6
Part XICA--The Electricity Industry
7
Division 1--Preliminary
8
153A Simplified outline of this Part
9
This Part deals with prohibited conduct by corporations in relation
10
to electricity. It ceases to be in force on 1 January 2026.
11
Division 2 of this Part sets out the circumstances in which a
12
corporation engages in prohibited conduct.
13
Responses to a corporation engaging in prohibited conduct include
14
the following:
15
(a)
the Commission may issue a public warning notice;
16
(b)
the Commission may give the corporation an
17
infringement notice;
18
(c)
the Commission may give the corporation a prohibited
19
conduct notice that sets out proposed orders (and the
20
Commission may later give the Treasurer a prohibited
21
conduct recommendation that recommends orders);
22
(d)
if the Commission has given the Treasurer a prohibited
23
conduct recommendation, the Treasurer may:
24
(i) make a contracting order that requires making offers
25
to enter into electricity financial contracts; and
26
Schedule 1 Prohibited conduct in the electricity industry
Part 1 Main amendments
4
Treasury Laws Amendment (Prohibiting Energy Market Misconduct)
Bill 2019
No. , 2019
(ii) apply to the Court for a divestiture order that
1
requires divestment of interests in assets and securities.
2
153B Part etc. ceases to be in force
3
The following cease to be in force on 1 January 2026:
4
(a) this Part;
5
(b) any other provision of this Act, to the extent that the
6
provision relates to this Part.
7
153C Interpretation
8
In this Part:
9
associate has the same meaning as in the Foreign Acquisitions and
10
Takeovers Act 1975.
11
connected body corporate has the meaning given by section 153D.
12
contracting order means an order of the Treasurer under
13
section 153X.
14
Court means the Federal Court of Australia.
15
divestiture order means an order of the Court under
16
section 153ZB.
17
electricity financial contract: a contract is an electricity financial
18
contract if:
19
(a) rights under the contract are derived from or relate to the
20
price of electricity on an electricity spot market; and
21
(b) the operator of that electricity spot market is not a party to
22
the contract.
23
electricity market means any of the following:
24
(a) a market in relation to the supply of electricity;
25
(b) a market for electricity financial contracts.
26
electricity spot market means a spot market for the supply of
27
electricity.
28
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Main amendments Part 1
No. , 2019
Treasury Laws Amendment (Prohibiting Energy Market Misconduct)
Bill 2019
5
interest, in an asset or a security, has the same meaning as in the
1
Foreign Acquisitions and Takeovers Act 1975.
2
no Treasurer action notice means a notice under section 153U.
3
prohibited conduct: a corporation engages in prohibited conduct if
4
the corporation engages in conduct that contravenes section 153E,
5
153F, 153G or 153H.
6
prohibited conduct notice means a notice under section 153P.
7
prohibited conduct recommendation means a notice under
8
section 153S.
9
residential customer means a customer who purchases, or
10
proposes to purchase, electricity principally for personal,
11
household or domestic use at premises.
12
small business customer means a customer who purchases, or
13
proposes to purchase, electricity at a rate less than 100 MWh a
14
financial year and is not a residential customer in relation to that
15
electricity.
16
small customer means a residential customer or a small business
17
customer.
18
153D Meaning of connected body corporate in relation to prohibited
19
conduct
20
(1) A corporation is a connected body corporate in relation to
21
prohibited conduct engaged in by the corporation.
22
(2) A body corporate is a connected body corporate in relation to
23
prohibited conduct engaged in by a corporation if:
24
(a) the body corporate is related to the corporation; and
25
(b) any of the following conditions are satisfied:
26
(i) the prohibited conduct involves the direct or indirect use
27
of assets held by the body corporate;
28
(ii) the prohibited conduct involves direct or indirect
29
dealings between the body corporate and the
30
corporation.
31
Schedule 1 Prohibited conduct in the electricity industry
Part 1 Main amendments
6
Treasury Laws Amendment (Prohibiting Energy Market Misconduct)
Bill 2019
No. , 2019
(3) A body corporate is a connected body corporate in relation to
1
prohibited conduct if:
2
(a) the body corporate is a holding company of another body
3
corporate; and
4
(b) the other body corporate is a connected body corporate in
5
relation to the prohibited conduct because of a previous
6
operation of this section.
7
Division 2--Prohibited conduct
8
153E Prohibited conduct--retail pricing
9
(1) A corporation contravenes this section if:
10
(a) the corporation offers to supply electricity, or supplies
11
electricity, to small customers; and
12
(b) the corporation fails to make reasonable adjustments to the
13
price of those offers, or to the price of those supplies, to
14
reflect sustained and substantial reductions in its underlying
15
cost of procuring electricity.
16
Note 1:
The Treasurer cannot make a contracting order in respect of a
17
contravention of this section (see paragraph 153W(e)).
18
Note 2:
The Treasurer cannot apply for a divestiture order in respect of a
19
contravention of this section (see paragraph 153ZA(e)).
20
(2) Despite subsection (1), the corporation does not contravene this
21
section if the price is a standing offer price (within the meaning of
22
the Competition and Consumer (Industry Code--Electricity Retail)
23
Regulations 2019).
24
(3) Despite subsection (1), the corporation does not contravene this
25
section if the adjustments would contravene:
26
(a) an Act of the Commonwealth, a State or a Territory; or
27
(b) an instrument made under such an Act.
28
153F Prohibited conduct--electricity financial contract liquidity
29
A corporation contravenes this section if:
30
(a) any of the following conditions are satisfied:
31
(i) the corporation generates electricity;
32
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Main amendments Part 1
No. , 2019
Treasury Laws Amendment (Prohibiting Energy Market Misconduct)
Bill 2019
7
(ii) a body corporate that is related to the corporation
1
generates electricity; and
2
(b) the corporation does any of the following:
3
(i) fails to offer electricity financial contracts;
4
(ii) limits or restricts its offers to enter into electricity
5
financial contracts;
6
(iii) offers to enter into electricity financial contracts in a
7
way that has, or on terms that have, the effect or likely
8
effect of preventing, limiting or restricting acceptance of
9
those offers; and
10
(c) the corporation does so for the purpose of substantially
11
lessening competition in any electricity market.
12
Note:
The Treasurer cannot apply for a divestiture order in respect of a
13
contravention of this section (see paragraph 153ZA(e)).
14
153G Prohibited conduct--electricity spot market (basic case)
15
A corporation contravenes this section if:
16
(a) the corporation:
17
(i) bids or offers to supply electricity in relation to an
18
electricity spot market; or
19
(ii) fails to bid or offer to supply electricity in relation to an
20
electricity spot market; and
21
(b) the corporation does so:
22
(i) fraudulently, dishonestly or in bad faith; or
23
(ii) for the purpose of distorting or manipulating prices in
24
that electricity spot market.
25
Note 1:
The Treasurer cannot make a contracting order in respect of a
26
contravention of this section (see paragraph 153W(e)).
27
Note 2:
The Treasurer cannot apply for a divestiture order in respect of a
28
contravention of this section (see paragraph 153ZA(e)).
29
153H Prohibited conduct--electricity spot market (aggravated case)
30
A corporation contravenes this section if:
31
(a) the corporation:
32
(i) bids or offers to supply electricity in relation to an
33
electricity spot market; or
34
Schedule 1 Prohibited conduct in the electricity industry
Part 1 Main amendments
8
Treasury Laws Amendment (Prohibiting Energy Market Misconduct)
Bill 2019
No. , 2019
(ii) fails to bid or offer to supply electricity in relation to an
1
electricity spot market; and
2
(b) the corporation does so fraudulently, dishonestly or in bad
3
faith, for the purpose of distorting or manipulating prices in
4
that electricity spot market.
5
153J Prohibited conduct--purpose
6
(1) This section:
7
(a) applies for the purposes of sections 153F, 153G and 153H;
8
and
9
(b) does not limit the manner in which the purpose of a person
10
may be established for the purposes of any other provision of
11
this Act.
12
(2) A corporation may be taken to have done something:
13
(a) for the purpose of substantially lessening competition in an
14
electricity market; or
15
(b) for the purpose of distorting or manipulating prices in an
16
electricity spot market;
17
even though, after all the evidence has been considered, the
18
existence of that purpose is ascertainable only by inference from
19
the conduct of the corporation or of any other person or from other
20
relevant circumstances.
21
153K Prohibited conduct may be covered by other provisions
22
To avoid doubt, this Division does not limit the operation of any
23
other provision of this Act.
24
Example: Particular conduct of a corporation could result in the corporation
25
contravening both section 46 and section 153F.
26
Division 3--Commission responses
27
Subdivision A--Public warning notices
28
153L Commission may give draft public warning notice
29
(1) The Commission may give a corporation a notice in writing if the
30
Commission reasonably believes that:
31
Prohibited conduct in the electricity industry Schedule 1
Main amendments Part 1
No. , 2019
Treasury Laws Amendment (Prohibiting Energy Market Misconduct)
Bill 2019
9
(a) any of the following conditions are satisfied:
1
(i) the corporation has engaged in prohibited conduct;
2
(ii) the corporation is engaging in prohibited conduct; and
3
(b) one or more persons has suffered, or is likely to suffer,
4
detriment as a result of the prohibited conduct; and
5
(c) it is in the public interest to issue the notice.
6
(2) The notice must:
7
(a) state the day on which the notice is given; and
8
(b) identify:
9
(i) the corporation mentioned in paragraph (1)(a); and
10
(ii) the prohibited conduct mentioned in paragraph (1)(a);
11
and
12
(c) explain the reasons why the Commission reasonably believes
13
that the requirements in paragraphs (1)(a), (b) and (c) are
14
met; and
15
(d) state that:
16
(i) the corporation may, within 21 days after being given
17
the notice, make representations to the Commission
18
regarding the matters mentioned in paragraphs (1)(a),
19
(b) and (c); and
20
(ii) the Commission may issue a public warning notice
21
under section 153M in relation to the prohibited conduct
22
after those 21 days have passed.
23
(3) A notice given under subsection (1) is not a legislative instrument.
24
153M Commission may issue public warning notice
25
(1) This section applies if:
26
(a) the Commission gave a corporation a notice under
27
section 153L in relation to prohibited conduct; and
28
(b) at least 21 days have passed since the Commission gave the
29
corporation the notice; and
30
(c) no more than 90 days have passed since the Commission
31
gave the corporation the notice.
32
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Part 1 Main amendments
10
Treasury Laws Amendment (Prohibiting Energy Market Misconduct)
Bill 2019
No. , 2019
(2) The Commission may issue to the public a written notice
1
containing a warning about the prohibited conduct if the
2
Commission reasonably believes that:
3
(a) any of the following conditions are satisfied:
4
(i) the corporation has engaged in the prohibited conduct;
5
(ii) the corporation is engaging in the prohibited conduct;
6
and
7
(b) one or more persons has suffered, or is likely to suffer,
8
detriment as a result of the prohibited conduct; and
9
(c) it is in the public interest to issue the notice.
10
(3) The notice must:
11
(a) state the day on which the notice is issued; and
12
(b) identify:
13
(i) the corporation mentioned in paragraph (2)(a); and
14
(ii) the prohibited conduct mentioned in paragraph (2)(a).
15
(4) A notice issued under subsection (2) is not a legislative instrument.
16
Subdivision B--Infringement notices
17
153N Infringement notices
18
(1) Subject to subsection (2), Division 5 of Part V applies in relation to
19
an alleged contravention of section 153E, 153F, 153G or 153H in
20
the same way in which it applies in relation to an alleged
21
contravention of an infringement notice provision (within the
22
meaning of that Part).
23
(2) For the purposes of applying Division 5 of Part V in accordance
24
with subsection (1), treat the reference in paragraph 60L(5)(b) to
25
60 penalty units as being a reference to 600 penalty units.
26
Prohibited conduct in the electricity industry Schedule 1
Main amendments Part 1
No. , 2019
Treasury Laws Amendment (Prohibiting Energy Market Misconduct)
Bill 2019
11
Division 4--Procedure before contracting order or
1
divestiture order
2
Subdivision A--Prohibited conduct notices
3
153P Prohibited conduct notices
4
(1) The Commission may give a corporation a notice (a prohibited
5
conduct notice) in writing, stating one or more recommendations
6
for the kind or kinds of order the Treasurer or the Court could
7
make under Division 5 or 6, if the Commission reasonably believes
8
that:
9
(a) any of the following conditions are satisfied:
10
(i) the corporation has engaged in prohibited conduct;
11
(ii) the corporation is engaging in prohibited conduct; and
12
(b) the Treasurer or the Court making that kind or those kinds of
13
order in relation to the corporation, or any other connected
14
body corporate in relation to the prohibited conduct, is a
15
proportionate means of preventing the corporation, or any
16
related body corporate, from engaging in that kind of
17
prohibited conduct in the future; and
18
(c) if that kind of order is, or those kinds of order include, a
19
divestiture order--the following conditions are satisfied:
20
(i) such a divestiture order will result, or is likely to result,
21
in a benefit to the public;
22
(ii) if such a divestiture order will result, or is likely to
23
result, in a detriment to the public--the benefit
24
mentioned in subparagraph (i) would, or is likely to,
25
outweigh that detriment.
26
(2) The notice must:
27
(a) be expressed to be given under this section; and
28
(b) state the day on which the notice is given; and
29
(c) identify:
30
(i) the corporation; and
31
(ii) the prohibited conduct mentioned in paragraph (1)(a);
32
and
33
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Part 1 Main amendments
12
Treasury Laws Amendment (Prohibiting Energy Market Misconduct)
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No. , 2019
(iii) each connected body corporate in relation to the
1
prohibited conduct (other than the corporation); and
2
(d) state the recommendations mentioned in subsection (1); and
3
(e) explain the reasons why the Commission reasonably believes
4
that:
5
(i) the requirements in paragraphs (1)(a) and (b) are met;
6
and
7
(ii) if paragraph (1)(c) applies--the requirement in that
8
paragraph is met; and
9
(f) state that the corporation may, within the period mentioned in
10
subsection (3), make representations to the Commission
11
regarding the conduct mentioned in subparagraph (c)(ii) and
12
the recommendations mentioned in paragraph (d).
13
(3) For the purposes of paragraph (2)(f), the period:
14
(a) starts on the day on which the notice is given; and
15
(b) ends:
16
(i) if subparagraph (ii) does not apply--45 days after that
17
day; or
18
(ii) if the Commission allows a later day--that later day.
19
(4) A failure to comply with subparagraph (2)(c)(iii) does not affect
20
the validity of the notice.
21
(5) The Commission must give a copy of the notice to each body
22
corporate identified in the notice (in accordance with
23
subparagraph (2)(c)(iii)) as soon as practicable after issuing it.
24
(6) A prohibited conduct notice is not a legislative instrument.
25
153Q Commission may vary or revoke prohibited conduct notice
26
(1) The Commission may, in writing, vary or revoke a prohibited
27
conduct notice given to a corporation.
28
(2) A variation or revocation under subsection (1) must:
29
(a) state the day on which it is made; and
30
(b) in the case of a variation--state that the corporation may,
31
within the period mentioned in subsection (3), make
32
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Main amendments Part 1
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Treasury Laws Amendment (Prohibiting Energy Market Misconduct)
Bill 2019
13
representations to the Commission regarding the prohibited
1
conduct notice as varied.
2
(3) For the purposes of paragraph (2)(b), the period:
3
(a) starts on the day on which the Commission gives the
4
corporation the copy of the variation; and
5
(b) ends:
6
(i) if subparagraph (ii) does not apply--45 days after that
7
day; or
8
(ii) if the Commission allows a later day--that later day.
9
(4) The Commission must give each of the following a copy of a
10
variation or revocation under subsection (1) as soon as practicable
11
after making it:
12
(a) the corporation;
13
(b) each body corporate identified in the prohibited conduct
14
notice (in accordance with subparagraph 153P(2)(c)(iii));
15
(c) each connected body corporate in relation to the prohibited
16
conduct (other than a body corporate mentioned in
17
paragraph (b)) identified in the prohibited conduct notice as
18
varied.
19
(5) A variation or revocation under subsection (1) is not a legislative
20
instrument.
21
(6) Subsection 33(3) of the Acts Interpretation Act 1901 does not
22
apply in relation to a prohibited conduct notice.
23
Subdivision B--Prohibited conduct recommendations and no
24
Treasurer action notices
25
153R Commission must give Treasurer prohibited conduct
26
recommendation or no Treasurer action notice
27
(1) If the Commission has given a corporation a prohibited conduct
28
notice, the Commission must, within 45 days after the end of the
29
period mentioned in subsection (3), give the Treasurer:
30
(a) a prohibited conduct recommendation in respect of the
31
prohibited conduct notice; or
32
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Part 1 Main amendments
14
Treasury Laws Amendment (Prohibiting Energy Market Misconduct)
Bill 2019
No. , 2019
(b) a no Treasurer action notice in respect of the prohibited
1
conduct notice.
2
(2) Subsection (1) does not apply if the prohibited conduct notice has
3
been revoked under section 153Q.
4
(3) The period is:
5
(a) unless paragraph (b) applies--the period mentioned in
6
subsection 153P(3) for the prohibited conduct notice; or
7
(b) if there has been a variation of the prohibited conduct notice
8
under section 153Q--the period mentioned in
9
subsection 153Q(3) for the variation.
10
(4) Subsection (5) applies if:
11
(a) the Commission has given the Treasurer a no Treasurer
12
action notice in respect of the prohibited conduct notice, in
13
accordance with paragraph (1)(b); and
14
(b) the Commission has made a revocation of the no Treasurer
15
action notice under subsection 153V(1).
16
(5) The Commission must, within 45 days after making the revocation:
17
(a) give the Treasurer a prohibited conduct recommendation in
18
respect of the prohibited conduct notice; or
19
(b) give the corporation a new prohibited conduct notice in
20
respect of the prohibited conduct identified in the prohibited
21
conduct notice (in accordance with
22
subparagraph 153P(2)(c)(ii)).
23
153S Prohibited conduct recommendations
24
(1) The Commission may give the Treasurer a notice in writing (a
25
prohibited conduct recommendation) in respect of the prohibited
26
conduct notice, stating one or more recommendations for the kind
27
or kinds of order the Treasurer or the Court could make under
28
Division 5 or 6, if the Commission reasonably believes that:
29
(a) any of the following conditions are satisfied:
30
(i) the corporation has engaged in the kind of prohibited
31
conduct specified in the prohibited conduct notice;
32
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(ii) the corporation is continuing to engage in the kind of
1
prohibited conduct specified in the prohibited conduct
2
notice; and
3
(b) the Treasurer or the Court making that kind or those kinds of
4
order in relation to the corporation, or any other connected
5
body corporate in relation to the prohibited conduct, is a
6
proportionate means of preventing the corporation, or any
7
related body corporate, from engaging in that kind of
8
prohibited conduct in the future; and
9
(c) if that kind of order is, or those kinds of order include, a
10
divestiture order--the following conditions are satisfied:
11
(i) such a divestiture order will result, or is likely to result,
12
in a benefit to the public;
13
(ii) if such a divestiture order will result, or is likely to
14
result, in a detriment to the public--the benefit
15
mentioned in subparagraph (i) would, or is likely to,
16
outweigh that detriment.
17
(2) The notice must:
18
(a) be expressed to be given under this section; and
19
(b) state the day on which the notice is given; and
20
(c) identify:
21
(i) the corporation; and
22
(ii) the prohibited conduct mentioned in paragraph (1)(a);
23
and
24
(iii) each connected body corporate in relation to the
25
prohibited conduct (other than the corporation); and
26
(d) state the recommendations mentioned in subsection (1); and
27
(e) explain the reasons why the Commission reasonably believes
28
that:
29
(i) the requirements in paragraphs (1)(a) and (b) are met;
30
and
31
(ii) if paragraph (1)(c) applies--the requirement in that
32
paragraph is met.
33
(3) To avoid doubt, the recommendations stated in the notice (in
34
accordance with paragraph (2)(d)) may be different from the
35
recommendations stated in the prohibited conduct notice (in
36
accordance with paragraph 153P(2)(d)).
37
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Part 1 Main amendments
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(4) A failure to comply with subparagraph (2)(c)(iii) does not affect
1
the validity of the notice.
2
(5) To avoid doubt, the bodies corporate identified in the notice (in
3
accordance with subparagraph (2)(c)(iii)) need not be the same as
4
the bodies corporate identified in the prohibited conduct notice (in
5
accordance with subparagraph 153P(2)(c)(iii)).
6
(6) A prohibited conduct recommendation is not a legislative
7
instrument.
8
153T Commission may vary or revoke prohibited conduct
9
recommendation
10
(1) The Commission may, in writing, vary or revoke a prohibited
11
conduct recommendation.
12
(2) The Commission cannot make a variation or revocation under
13
subsection (1) later than 45 days after:
14
(a) unless paragraph (b) applies--the day on which the
15
Commission made the prohibited conduct recommendation;
16
or
17
(b) if there has been a previous variation of the prohibited
18
conduct recommendation under this section--the day on
19
which the Commission made the previous variation.
20
(3) The Commission cannot make a variation or revocation under
21
subsection (1) if:
22
(a) the Treasurer has made a contracting order in relation to the
23
prohibited conduct recommendation; or
24
(b) the Treasurer has applied to the Court for a divestiture order
25
in relation to the prohibited conduct recommendation.
26
(4) The Commission cannot make a variation under subsection (1)
27
unless the Commission is satisfied that:
28
(a) the variation is minor or insubstantial; or
29
(b) all of the following conditions are met:
30
(i) the corporation or any related body corporate gave the
31
Commission information relevant to the prohibited
32
conduct notice that is false or misleading in a material
33
particular, or failed to give the Commission information
34
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relevant to the prohibited conduct notice that is not
1
publicly available;
2
(ii) the variation is reasonably necessary to address the
3
circumstances described in subparagraph (i); or
4
(c) the variation is reasonably necessary to address information
5
that was not in existence, or that the Commission did not
6
have, when the prohibited conduct notice was given.
7
(5) A variation or revocation under subsection (1) must state the day
8
on which it is made.
9
(6) The Commission must give a copy of a variation or revocation
10
under subsection (1) to the Treasurer as soon as practicable after
11
making it.
12
(7) A variation or revocation under subsection (1) is not a legislative
13
instrument.
14
(8) Subsection 33(3) of the Acts Interpretation Act 1901 does not
15
apply in relation to a prohibited conduct recommendation.
16
153U No Treasurer action notice
17
(1) The Commission must give the Treasurer a notice in writing (a no
18
Treasurer action notice) in respect of the prohibited conduct
19
notice mentioned in section 153R if the Commission considers that
20
it is not appropriate to give the Treasurer a prohibited conduct
21
recommendation in respect of the prohibited conduct notice.
22
(2) The notice must:
23
(a) be expressed to be given under this section; and
24
(b) state the day on which the notice is given; and
25
(c) explain the reasons why the Commission considers that it is
26
not appropriate to give the Treasurer a prohibited conduct
27
recommendation in respect of the prohibited conduct notice.
28
(3) The Commission must give a copy of the notice to the corporation:
29
(a) unless paragraph (b) applies--45 days after issuing it; or
30
(b) if the Commission and the Treasurer agree that it is
31
appropriate to give a copy of the notice to the corporation at
32
an earlier time--at that earlier time.
33
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(4) A no Treasurer action notice is not a legislative instrument.
1
153V Commission may vary or revoke no Treasurer action notice
2
(1) The Commission may, in writing, vary or revoke a no Treasurer
3
action notice.
4
(2) The Commission cannot make a variation or revocation under
5
subsection (1) later than 45 days after:
6
(a) unless paragraph (b) applies--the day on which the
7
Commission made the no Treasurer action notice; or
8
(b) if there has been a previous variation of the no Treasurer
9
action notice under this section--the day on which the
10
Commission made the previous variation.
11
(3) The Commission cannot make a variation under subsection (1)
12
unless the Commission is satisfied that the variation is minor or
13
insubstantial.
14
(4) The Commission cannot make a revocation under subsection (1)
15
unless the Commission is satisfied that the conditions in
16
subsections (5) and (6) are met.
17
(5) The condition in this subsection is met if the Commission
18
reasonably believes that it is appropriate to:
19
(a) give the Treasurer a prohibited conduct recommendation in
20
respect of the prohibited conduct notice; or
21
(b) give the corporation a new prohibited conduct notice in
22
respect of the prohibited conduct identified in the prohibited
23
conduct notice (in accordance with
24
subparagraph 153P(2)(c)(ii)).
25
(6) The condition in this subsection is met if the Commission
26
reasonably believes that:
27
(a) all of the following conditions are met:
28
(i) the corporation or any related body corporate gave the
29
Commission information relevant to the prohibited
30
conduct notice that is false or misleading in a material
31
particular, or failed to give the Commission information
32
relevant to the prohibited conduct notice that is not
33
publicly available;
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(ii) the revocation is reasonably necessary to address the
1
circumstances described in subparagraph (i); or
2
(b) the revocation is reasonably necessary to address information
3
that was not in existence, or that the Commission did not
4
have, when the prohibited conduct notice was given.
5
(7) A variation or revocation under subsection (1) must state the day
6
on which it is made.
7
(8) The Commission must give a copy of a variation or revocation
8
under subsection (1) to the Treasurer as soon as practicable after
9
making it.
10
(9) The Commission must give a copy of a variation or revocation
11
under subsection (1) to the corporation as soon as practicable after
12
making it.
13
(10) If the no Treasurer action notice has not yet been given to the
14
corporation in accordance with subsection 153U(3) by the time the
15
Commission makes a variation or revocation under subsection (1):
16
(a) in the case of a variation:
17
(i) for the purposes of subsection 153U(3), the Commission
18
must give the corporation a copy of the no Treasurer
19
action notice as varied; and
20
(ii) despite subsection (9), the Commission must not give
21
the corporation a copy of the variation; or
22
(b) in the case of a revocation:
23
(i) despite subsection 153U(3), the Commission must not
24
give the corporation a copy of the no Treasurer action
25
notice; and
26
(ii) despite subsection (9), the Commission must not give
27
the corporation a copy of the revocation.
28
(11) A variation or revocation under subsection (1) is not a legislative
29
instrument.
30
(12) Subsection 33(3) of the Acts Interpretation Act 1901 does not
31
apply in relation to a no Treasurer action notice.
32
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Division 5--Contracting orders
1
Subdivision A--Treasurer may make contracting orders
2
153W Conditions for making contracting order
3
The Treasurer may make an order under section 153X in respect of
4
a body corporate if the Treasurer is satisfied that the following
5
conditions are met:
6
(a) the Commission has given the Treasurer a prohibited conduct
7
recommendation under section 153S;
8
(b) the body corporate is identified in the recommendation (in
9
accordance with subparagraph 153S(2)(c)(i) or (iii));
10
(c) the order is made no later than 45 days after:
11
(i) unless subparagraph (ii) applies--the day on which the
12
Commission gave the Treasurer the recommendation; or
13
(ii) if there has been a variation of the recommendation
14
under section 153T--the day on which the Commission
15
made the variation;
16
(d) the order is of a kind stated in the recommendation (in
17
accordance with paragraph 153S(2)(d));
18
(e) the conduct identified in the recommendation (in accordance
19
with subparagraph 153S(2)(c)(ii)):
20
(i) is prohibited conduct engaged in by the corporation
21
identified in the recommendation (in accordance with
22
subparagraph 153S(2)(c)(i)) (the relevant corporation);
23
and
24
(ii) is, or includes, prohibited conduct under section 153F
25
(electricity financial contract liquidity) or section 153H
26
(electricity spot market (aggravated case));
27
(f) the order is a proportionate means of preventing the relevant
28
corporation, or any related body corporate, from engaging in
29
that kind of prohibited conduct in the future;
30
(g) any of the following generate electricity:
31
(i) the body corporate;
32
(ii) another body corporate that is related to the body
33
corporate.
34
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153X Treasurer may make contracting order
1
(1) The Treasurer may, in writing, order the body corporate to make
2
offers to enter into electricity financial contracts.
3
(2) The order must:
4
(a) be expressed to be made under this section; and
5
(b) state the day on which the order is made; and
6
(c) identify:
7
(i) the body corporate; and
8
(ii) if the body corporate is not the relevant corporation--
9
the relevant corporation; and
10
(iii) the prohibited conduct mentioned in
11
paragraph 153W(e); and
12
(d) explain the reasons why the Treasurer is satisfied that the
13
conditions in paragraphs 153W(e) and (f) are met; and
14
(e) specify the matters mentioned in subsection (3).
15
(3) The matters are as follows:
16
(a) the kind of offers that the body corporate must make to enter
17
into electricity financial contracts;
18
(b) the manner in which the body corporate must make those
19
offers;
20
(c) the kind of entities to which those offers must be made;
21
(d) the period or periods during which the body corporate must
22
make those offers;
23
(e) any other matter that the Treasurer considers necessary for
24
the order to be effective.
25
(4) The order may specify the kind of offers that the body corporate
26
must make in any of the following ways:
27
(a) the kind of electricity financial contracts that must be offered;
28
(b) the price or range of prices in respect of electricity under the
29
electricity financial contracts that must be offered, or a
30
method or methods of working out that price or that range;
31
(c) the minimum number of megawatt hours of electricity to
32
which the electricity financial contracts that must be offered
33
must relate.
34
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(5) In determining the minimum number of megawatt hours to specify
1
for the purposes of paragraph (4)(c), the Treasurer must have
2
regard to the following matters:
3
(a) the total electricity generation capacity of the electricity
4
generation assets held by each connected body corporate in
5
relation to the prohibited conduct and related bodies
6
corporate;
7
(b) the nature and location of those electricity generation assets;
8
(c) the commitments that the body corporate has, and related
9
bodies corporate have, to supply electricity to customers;
10
(d) any other matter that the Treasurer considers to be relevant.
11
(6) The specified period or periods during which the body corporate
12
must make those offers must:
13
(a) start no earlier than 6 months after the order is made; and
14
(b) end no later than 3 years after the order is made.
15
(7) The Treasurer must publish, by electronic or other means, the
16
following information:
17
(a) the fact that the order has been made;
18
(b) the day on which the order is made;
19
(c) the name of the body corporate.
20
153Y Variation and revocation of contracting order
21
(1) The Treasurer may, in writing, vary or revoke a contracting order
22
in respect of a body corporate, on the Treasurer's own initiative or
23
on application made by the body corporate.
24
(2) The Treasurer cannot make a variation under subsection (1) unless
25
the Treasurer is satisfied that:
26
(a) the order as varied is a proportionate means of preventing the
27
relevant corporation, or any related body corporate, from
28
engaging in the kind of prohibited conduct (mentioned in the
29
order) in the future; and
30
(b) if the body corporate does not consent to the variation--the
31
variation is minor or insubstantial, or all of the following
32
conditions are met:
33
(i) the corporation or any related body corporate gave the
34
Treasurer or the Commission information relevant to the
35
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prohibited conduct recommendation that is false or
1
misleading in a material particular, or failed to give the
2
Treasurer or the Commission information relevant to the
3
prohibited conduct recommendation that is not publicly
4
available;
5
(ii) the variation is reasonably necessary to address the
6
circumstances described in subparagraph (i).
7
(3) A variation can be of a kind that results in the order, as varied, not
8
being of a kind recommended in the prohibited conduct
9
recommendation (in accordance with paragraph 153S(2)(d)).
10
(4) The Treasurer need not consider an application by the body
11
corporate to vary or revoke a contracting order if the application is
12
made after:
13
(a) if there is only one period mentioned in
14
paragraph 153X(3)(d)--that period has ended; or
15
(b) if there is more than one such period--all of those periods
16
have ended.
17
(5) The Treasurer must publish, by electronic or other means, the
18
following information:
19
(a) the fact that the variation or revocation has been made;
20
(b) the day on which the variation or revocation is made;
21
(c) the name of the body corporate.
22
Subdivision B--Enforcement of contracting orders
23
153Z Enforcement of contracting orders
24
(1) This section applies if the Treasurer has made a contracting order
25
in respect of a body corporate.
26
(2) If the Commission considers that the body corporate has failed to
27
comply with the contracting order, the Commission may apply to
28
the Court for an order under subsection (3).
29
(3) If the Court is satisfied that the body corporate has failed to comply
30
with the contracting order, the Court may make all or any of the
31
following orders:
32
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(a) an order directing the body corporate to comply with the
1
contracting order;
2
(b) if the period or periods specified in the contracting order (in
3
accordance with paragraph 153X(3)(d)) have already
4
passed--an order directing the body corporate to comply
5
with the contracting order, within a new period, or new
6
periods, specified in the order;
7
(c) any other order that the Court considers appropriate.
8
Division 6--Electricity divestiture orders
9
153ZA Treasurer may apply to Federal Court for divestiture order
10
The Treasurer may apply to the Court for an order under
11
subsection 153ZB(2) or (3) in respect of a body corporate if the
12
Treasurer is satisfied that the following conditions are met:
13
(a) the Commission has given the Treasurer a prohibited conduct
14
recommendation under section 153S;
15
(b) the body corporate is identified in the recommendation (in
16
accordance with subparagraph 153S(2)(c)(i) or (iii));
17
(c) the application is made no later than 45 days after:
18
(i) unless subparagraph (ii) applies--the day on which the
19
Commission gave the Treasurer the recommendation; or
20
(ii) if there has been a variation of the recommendation
21
under section 153T--the day on which the Commission
22
made the variation;
23
(d) the order applied for is of a kind stated in the
24
recommendation (in accordance with paragraph 153S(2)(d));
25
(e) the conduct identified in the recommendation (in accordance
26
with subparagraph 153S(2)(c)(ii)):
27
(i) is prohibited conduct engaged in by the corporation
28
identified in the recommendation (in accordance with
29
subparagraph 153S(2)(c)(i)) (the relevant corporation);
30
and
31
(ii) is, or includes, prohibited conduct under section 153H
32
(electricity spot market (aggravated case));
33
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(f) the order applied for is a proportionate means of preventing
1
the relevant corporation, or any related body corporate, from
2
engaging in that kind of prohibited conduct in the future;
3
(g) the following conditions are satisfied:
4
(i) the order applied for will result, or is likely to result, in
5
a benefit to the public;
6
(ii) if the order applied for will result, or is likely to result,
7
in a detriment to the public--the benefit mentioned in
8
subparagraph (i) would, or is likely to, outweigh that
9
detriment.
10
153ZB Making of divestiture order
11
(1) The Court may, on the application of the Treasurer under
12
section 153ZA, make an order under subsection (2) or (3) in
13
relation to the body corporate if:
14
(a) the Court finds, or has in another proceeding instituted under
15
this Act found, that the conduct identified in the
16
recommendation (in accordance with
17
subparagraph 153S(2)(c)(ii)):
18
(i) is prohibited conduct engaged in by the relevant
19
corporation; and
20
(ii) is, or includes, prohibited conduct under section 153H
21
(electricity spot market (aggravated case)); and
22
(b) the Court is satisfied that the order is a proportionate means
23
of preventing the relevant corporation, or any related body
24
corporate, from engaging in that kind of prohibited conduct
25
in the future.
26
(2) If the body corporate is not an authority of the Commonwealth or
27
an authority of a State or Territory, the Court may order the body
28
corporate to:
29
(a) dispose of interests in securities or assets, other than to any of
30
the following:
31
(i) another body corporate that is related to the body
32
corporate;
33
(ii) an associate of the body corporate; and
34
(b) comply with conditions (if any) specified in the order in
35
accordance with subsection (7).
36
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(3) If the body corporate is an authority of the Commonwealth or an
1
authority of a State or Territory, the Court may order the body
2
corporate to:
3
(a) dispose of interests in securities or assets to:
4
(i) if the body corporate is an authority of the
5
Commonwealth--an authority of the Commonwealth
6
that is genuinely in competition in relation to electricity
7
markets with the body corporate in relation to which the
8
order is made; and
9
(ii) if the body corporate is an authority of a State or
10
Territory--an authority of that State or Territory that is
11
genuinely in competition in relation to electricity
12
markets with the body corporate in relation to which the
13
order is made; and
14
(b) comply with conditions (if any) specified in the order in
15
accordance with subsection (7).
16
(4) To avoid doubt, the Court cannot make an order under
17
subsection (3) for the body corporate to dispose of interests in
18
securities or assets otherwise than in accordance with
19
paragraph (3)(a).
20
(5) An order under subsection (2) or (3) must specify:
21
(a) the interests in the securities and assets, or the kinds of
22
interests in the securities and assets, that the body corporate
23
must dispose of; and
24
(b) the day by which the disposal must be made; and
25
(c) any other matter that the Court considers necessary for the
26
order to be effective.
27
(6) The day by which the disposal must be made must be no earlier
28
than 12 months after the day on which the order is made.
29
(7) The order may specify conditions with which the body corporate
30
must comply during the period between the making of the order
31
and the disposal of an interest, if the Court is satisfied that those
32
conditions are necessary to preserve any of the following:
33
(a) the value of the interest;
34
(b) in the case of an interest in an asset--the commercial
35
operation of the asset.
36
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(8) Without limiting the scope of subsection (7), those conditions may
1
relate to any of the following:
2
(a) the interest to be disposed;
3
(b) if the interest is a share or other security in a body
4
corporate--the exercise of rights attached to the share or
5
other security.
6
Division 7--Miscellaneous
7
153ZC Acquisition of property
8
Scope
9
(1) This section applies to the following:
10
(a) Divisions 5 and 6;
11
(b) any other provision of this Act, to the extent to which the
12
provision relates to Division 5 or 6.
13
Effect of provision
14
(2) The provision has no effect to the extent (if any) to which its
15
operation would result in the acquisition of property (within the
16
meaning of paragraph 51(xxxi) of the Constitution) otherwise than
17
on just terms (within the meaning of that paragraph).
18
153ZD No orders under subsection 76(1) against certain individuals
19
(1) Nothing in subsection 76(1) authorises the making of an order
20
against an individual covered under subsection (2) because the
21
individual:
22
(a) has aided, abetted, counselled or procured a corporation to
23
contravene section 153E, 153F, 153G or 153H; or
24
(b) has induced, or attempted to induce, a corporation, whether
25
by threats or promises or otherwise, to contravene
26
section 153E, 153F, 153G or 153H; or
27
(c) has been in any way, directly or indirectly, knowingly
28
concerned in, or party to, the contravention by a corporation
29
of section 153E, 153F, 153G or 153H; or
30
(d) has conspired with others for a corporation to contravene
31
section 153E, 153F, 153G or 153H.
32
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(2) An individual is covered under this section unless the individual is
1
a director, secretary or senior manager (within the meaning of the
2
Corporations Act 2001) of the corporation.
3
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Part 2--Other amendments
1
Competition and Consumer Act 2010
2
2 After paragraph 2B(1)(b)
3
Insert:
4
(ba) Part XICA;
5
3 After paragraph 5(1)(b)
6
Insert:
7
(ba) Part XICA;
8
4 Paragraph 5(1)(f)
9
Omit "(b) or (c)", substitute "(b), (ba) or (c)".
10
5 Paragraph 29(1A)(a)
11
Omit "XIB or XIC", substitute "XIB, XIC or XICA".
12
6 After subparagraph 76(1)(a)(iii)
13
Insert:
14
(iiia) a provision of Division 2 of Part XICA;
15
7 Paragraph 76(1A)(aa)
16
After "section 45AJ or 45AK", insert "or to a provision of Division 2 of
17
Part XICA".
18
8 Subparagraph 80(1)(a)(iv)
19
Omit "or".
20
9 At the end of paragraph 80(1)(a)
21
Add:
22
(v) a provision of Division 2 of Part XICA; or
23
10 At the end of paragraph 84(1)(b)
24
Add "or".
25
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11 After paragraph 84(1)(b)
1
Insert:
2
(ba) a proceeding in respect of conduct engaged in by a body
3
corporate, being conduct in relation to which section 153E,
4
153F, 153G or 153H applies;
5
12 At the end of paragraph 155(2)(b)
6
Add:
7
; or (vi) a contracting order (within the meaning of Part XICA);
8
or
9
(vii) a divestiture order (within the meaning of Part XICA).
10
13 Subsection 155AAA(21) (paragraph (a) of the definition of
11
core statutory provision)
12
Omit "XIB or XIC", substitute "XIB, XIC or XICA".
13
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Part 3--Application
1
14 Application
2
(1)
The amendments made by Parts 1 and 2 of this Schedule apply in
3
relation to:
4
(a) conduct that is engaged in on and after the commencement of
5
this Schedule; and
6
(b) conduct that was engaged in before that commencement, and
7
is continued to be engaged in on and after that
8
commencement.
9
(2)
To avoid doubt, subsection 4(2) of the Competition and Consumer Act
10
2010 applies in relation to subitem (1).
11
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Schedule 2--AER information gathering
1
2
Competition and Consumer Act 2010
3
1 Section 44AH
4
Before "The", insert "(1)".
5
2 At the end of section 44AH
6
Add:
7
(2) Regulations made for the purposes of paragraph (1)(b) may
8
empower the AER to make legislative instruments.
9
(3) Section 42 (disallowance) of the Legislation Act 2003 does not
10
apply to legislative instruments empowered by regulations made
11
for the purposes of paragraph (1)(b).
12
(4) Subsection (3) has effect subject to any express provision to the
13
contrary in the regulations.
14
3 After subsection 44AAF(3)
15
Insert:
16
(3A) If the AER is satisfied that particular information will enable or
17
assist an entity covered by subsection (3B) to perform or exercise
18
any of the entity's functions or powers, disclosing the information
19
to the entity is authorised use and disclosure of the information.
20
(3B) The entities are as follows:
21
(a) a Department;
22
(b) a body (whether incorporated or not) established or appointed
23
for a public purpose by or under a law of the Commonwealth;
24
(c) a body established or appointed by the Governor-General, or
25
by a Minister, otherwise than by or under a law of the
26
Commonwealth;
27
(d) the holder of an office established for public purposes by or
28
under a law of the Commonwealth.
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4 Subsections 44AAF(4) and (5)
1
After "subsection (3)", insert "or (3A)".
2
5 After section 44AAF
3
Insert:
4
44AAFA Power of AER to obtain information and documents
5
Notice requiring information etc.
6
(1) This section applies if the AER has reason to believe that a person
7
is capable of providing information, producing a document or
8
giving evidence that the AER requires for the performance of the
9
functions referred to in section 44AH (Commonwealth functions).
10
(2) The AER may, by written notice given to the person, require the
11
person to do one or more of the following:
12
(a) give such information to the AER;
13
(b) produce any such documents to the AER;
14
(c) appear before the AER, or before a specified person assisting
15
the AER who is an SES employee or an acting SES
16
employee, to give any such evidence (either orally or in
17
writing) and produce any such documents.
18
(3) The notice must specify:
19
(a) if paragraph (2)(a) or (b) applies:
20
(i) the period within which the person must comply with
21
the notice; and
22
(ii) the manner in which the person must comply with the
23
notice; or
24
(b) if paragraph (2)(c) applies:
25
(i) the time at which the person must appear before the
26
AER or person; and
27
(ii) the place at which the person must appear before the
28
AER or person.
29
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Oath or affirmation
1
(4) The AER may require the evidence given under paragraph (2)(c) to
2
be given on oath or affirmation. For that purpose, an AER member
3
or a person assisting the AER may administer the oath or
4
affirmation.
5
44AAFB Failure to comply with notice to give information etc. is an
6
offence
7
Offence
8
(1) A person commits an offence if:
9
(a) the person is given a notice under section 44AAFA; and
10
(b) the person fails to comply with the notice.
11
Penalty: Imprisonment for 2 years or 100 penalty units, or both.
12
Exceptions
13
(2) Subsection (1) does not apply to the extent that the person is not
14
capable of complying with the notice.
15
Note:
A defendant bears an evidential burden in relation to the matters in
16
this subsection (see subsection 13.3(3) of the Criminal Code).
17
(3) Subsection (1) does not apply to the extent that:
18
(a) the notice relates to producing documents; and
19
(b) the person proves that, after a reasonable search, the person is
20
not aware of the documents; and
21
(c) the person provides a written response to the notice,
22
including a description of the scope and limitations of the
23
search.
24
Note:
A defendant bears a legal burden in relation to the matter in
25
paragraph (3)(b) (see section 13.4 of the Criminal Code).
26
(4) For the purposes of (but without limiting) paragraph (3)(b), a
27
determination of whether a search is reasonable may take into
28
account the following:
29
(a) the nature and complexity of the matter to which the notice
30
relates;
31
(b) the number of documents involved;
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(c) the ease and cost of retrieving a document relative to the
1
resources of the person who was given the notice;
2
(d) any other relevant matter.
3
44AAFC AER may inspect, copy and retain documents
4
(1) A member of the AER, or a person authorised by a member of the
5
AER, may inspect a document produced under section 44AAFA
6
and may make and retain copies of such a document.
7
(2) The AER may take, and retain for as long as is necessary,
8
possession of a document produced under section 44AAFA.
9
(3) The person otherwise entitled to possession of the document is
10
entitled to be supplied, as soon as practicable, with a copy certified
11
by a member of the AER to be a true copy.
12
(4) The certified copy must be received in all courts and tribunals as
13
evidence as if it were the original.
14
(5) Until a certified copy is supplied, the AER must, at such times and
15
places as the AER thinks appropriate, permit the person otherwise
16
entitled to possession of the document, or a person authorised by
17
that person, to inspect and make copies of the document.
18
6 At the end of section 51AE
19
Add:
20
(3) If regulations prescribe an industry code that applies to one or
21
more entities that are authorised by or under a law of the
22
Commonwealth or of a State or Territory to sell electricity, the
23
regulations may make provision in relation to a matter by applying,
24
adopting or incorporating, with or without modification, any matter
25
contained in an instrument or other writing as in force or existing
26
from time to time.
27
(4) Subsection (3) applies despite subsection 14(2) of the Legislation
28
Act 2003.
29
7 Subparagraph 79A(1)(a)(i)
30
After "section", insert "44AAFB,".
31
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Treasury Laws Amendment (Prohibiting Energy Market Misconduct)
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8 Paragraph 79A(1)(d)
1
Omit "or the Commission,", substitute ", the Commission or (in the case
2
of an offence against section 44AAFB) the AER".
3
9 Subsection 163(5)
4
After "section", insert "44AAFB,".
5