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This is a Bill, not an Act. For current law, see the Acts databases.
South Australia
Statutes Amendment (National Energy Laws) (Penalties and
Enforcement) Bill 2020
A BILL FOR
An Act to amend the
National
Electricity (South Australia) Act 1996
, the
National
Energy Retail Law (South Australia) Act 2011
and the
National
Gas (South Australia) Act 2008
.
Contents
Part 2—Amendment
of National Electricity Law
4Amendment of section
2—Definitions
5Amendment of section 2AA—Meaning of civil
penalty provision and conduct provision
2ABCivil penalty
amounts for breaches of civil penalty provisions
8Amendment of section 20B—Return of
identity cards
9Amendment of section 27—Obstruction of
person authorised to enter
11Amendment of section 28R—Providing to
AER false and misleading information
12Amendment of section 28ZF—AER
enforcement guidelines
13Amendment of section 53E—Providing false
or misleading information
16Amendment of section 62—Additional Court
orders
18Amendment of section
73—Definition
19Amendment of section 74—Power to serve a
notice
20Amendment of section 75—Form of
notice
22Amendment of section 81—Payment expiates
breach of civil penalty provision
23Amendment of section 82—Payment not to
have certain consequences
24Amendment of section 83—Conduct in
breach of more than one civil penalty provision
25Amendment of section 85—Offences and
breaches by corporations
26Amendment of section 86—Corporations
also in breach if officers and employees are in breach
27Amendment of section 118—Obstruction and
non-compliance
28Amendment of section 141—Disclosure of
information
29Amendment of section 143—Failing to
attend as a witness
30Amendment of section 144—Failing to
answer questions etc
31Amendment of section 145—Intimidation
etc
32Insertion of sections 159 and
160
160Court may grant
relief from liability
33Amendment of Schedule 2—Miscellaneous
provisions relating to interpretation
Part 3—Amendment
of National Energy Retail Law
34Amendment of section
2—Interpretation
4ACivil penalty
amounts for breaches of civil penalty provisions
37Amendment of section 107—Power to revoke
retailer authorisation
38Amendment of section 158—Providing false
or misleading information
39Amendment of section 206—Power to obtain
information and documents
40Amendment of section 218—AER enforcement
guidelines
44Insertion of sections 300A and
300B
300AIndexation of
civil penalty amounts
300BIndexation of
criminal penalties
45Amendment of section 305—Corporations
also in breach if officers and employees are in breach
46Insertion of sections 321 and
322
322Court may grant
relief from liability
Part 4—Amendment
of National Gas Law
47Amendment of section
2—Definitions
3ACivil penalty
amounts for breaches of civil penalty provisions
50Amendment of section 34—Return of
identity cards
51Amendment of section 41—Obstruction of
persons authorised to enter
53Amendment of section 60—Providing to AER
false and misleading information
54Amendment of section 68—AER enforcement
guidelines
55Amendment of section 83D—False or
misleading statements
56Amendment of section 91BC—AEMO's power
of direction
57Amendment of section 91FE—Providing
false or misleading information
58Amendment of section 91FEC—Giving to
AEMO false and misleading information
59Amendment of section 91FEG—Giving to
AEMO false and misleading information
60Amendment of section 91FEI—Giving false
and misleading information used for capacity auctions
61Amendment of section 200—Disclosure of
information
62Amendment of section 202—Failing to
attend as a witness
63Amendment of section 203—Failing to
answer questions etc
64Amendment of section 204—Intimidation
etc
68Amendment of section 277—Power to serve
notice
70Amendment of section 289—Corporations
also in breach if officers and employees are in breach
71Insertion of sections 335A and
335B
335BCourt may grant
relief from liability
72Amendment of Schedule 2—Miscellaneous
provisions relating to interpretation
The Parliament of South Australia enacts as
follows:
This Act may be cited as the Statutes Amendment (National Energy Laws)
(Penalties and Enforcement) Act 2020.
This Act will come into operation on a day to be fixed by
proclamation.
In this Act—
(a) a provision in
Part 2
amends the National Electricity Law set out in the Schedule to the
National
Electricity (South Australia) Act 1996
; and
(b) a provision in
Part 3
amends the National Energy Retail Law set out in the Schedule to
the
National
Energy Retail Law (South Australia) Act 2011
; and
(c) a provision in
Part 4
amends the National Gas Law set out in the Schedule to the
National
Gas (South Australia) Act 2008
.
Part 2—Amendment
of National Electricity
Law
4—Amendment
of section 2—Definitions
(1) Section 2(1)—after the definition of AER wholesale market
reporting functions insert:
annual turnover has the same meaning as in section 2(1)
of Schedule 2 to the Competition and Consumer Act 2010 of the
Commonwealth;
(2) Section 2(1), definition of civil penalty—delete
the definition and substitute:
civil penalty—see section 2AB;
(3) Section 2(1)—after the definition of liable entity
insert:
listed corporation has the meaning given by section 9 of
the Corporations Act 2001 of the Commonwealth;
(4) Section 2(1), definition of rebidding civil penalty
provision—delete the definition
5—Amendment
of section 2AA—Meaning of civil penalty provision and conduct
provision
Section 2AA(1)(b)—delete paragraph (b)
After section 2AA insert:
2AB—Civil penalty amounts for breaches of civil
penalty provisions
(1) Subject to this
section, the civil penalty for a breach of a civil penalty provision
is—
(a) in the case of a breach of a civil penalty provision, other than a
provision prescribed under
paragraph (b)
,
(c)
or
(d)
—
(i) if the breach is by a natural person—
(A) an amount not exceeding $33 900; plus
(B) an amount not exceeding $3 390 for every day during which the
breach continues;
(ii) if the breach is by a body corporate—
(A) an amount not exceeding $170 000; plus
(B) an amount not exceeding $17 000 for every day during which the
breach continues; or
(b) in the case of a
breach of a civil penalty provision prescribed by the Regulations for the
purposes of this paragraph—
(i) if the breach is by a natural person—
(A) an amount not exceeding $287 000; plus
(B) an amount not exceeding $14 400 for every day during which the
breach continues;
(ii) if the breach is by a body corporate—
(A) an amount not exceeding $1 435 000; plus
(B) an amount not exceeding $71 800 for every day during which the
breach continues; or
(c) in the case of a
breach of a civil penalty provision prescribed by the Regulations for the
purposes of this paragraph—
(i) if the breach is by a natural person—an amount not exceeding
$500 000;
(ii) if the breach is
by a body corporate—an amount not exceeding the greater of the
following:
(A) $10 000 000;
(B) if the Court can
determine the value of any benefit reasonably attributable to the breach of the
civil penalty provision that the body corporate, and any body corporate related
to the body corporate, has obtained, directly or indirectly—3 times
the value of that benefit;
(C) if the Court cannot
determine the value of the benefit—10% of the annual turnover of the
body corporate during the 12-month period ending at the end of the month in
which the body corporate breached, or began breaching, the civil penalty
provision; or
(d) in the case of a
breach of a reliability obligation civil penalty provision—
(i) if the breach is by a natural person—an amount not exceeding
$1 435 000;
(ii) if the breach is
by a body corporate—
(A) an amount not exceeding $1 435 000 for a breach that relates
to a reliability gap period; or
(B) an amount that
applies under
paragraph (c)(ii)
, as if the reliability obligation civil penalty provision were prescribed
by the Regulations for the purposes of
paragraph (c)
, for a breach that relates to a second or subsequent reliability gap
period.
Note—
See section 67A, which deals with conduct that constitutes a breach of a
reliability obligation civil penalty provision on 2 or more occasions in
relation to the same reliability gap period.
Note—
See Schedule 2 clause 37A, which provides for the amounts
specified in this subsection to be adjusted every 3 years to reflect
movements in the consumer price index. The adjusted amounts are published on the
AER's website.
or
(C)
will only apply in a particular case (including by operation of
subsection (1)(d)(ii)(B)
) if the AER, in applying for an order under section 61(2)(a),
requests that those provisions be applied in that particular case.
After section 2F insert:
2G—Related bodies corporate
For the purposes of this Law, 2 or more bodies corporate are related
to each other if they are related bodies corporate within the meaning of the
Corporations Act 2001 of the Commonwealth.
8—Amendment
of section 20B—Return of identity cards
Section 20B, penalty provision—delete the penalty provision and
substitute:
Maximum penalty: $620.
Note—
See Schedule 2 clause 37B, 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.
9—Amendment
of section 27—Obstruction of person authorised to
enter
Section 27, penalty provision—delete the penalty provision and
substitute:
Maximum penalty:
(a) in the case of a natural person—$3 400;
(b) in the case of a body corporate—$17 000.
Note—
See Schedule 2 clause 37B, 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—Amendment
of section 28—Power to obtain information and documents in relation to
performance and exercise of functions and powers
(1) Section 28(1)—delete "or producing a document" and
substitute:
, producing a document or giving evidence
(2) Section 28(2)—delete "may require the person to—" and
substitute:
may require the person to do 1 or more of the following:
(3) Section 28(2)(b)—delete "subsection (1)." and
substitute:
subsection (1); or
(4) Section 28(2)—after paragraph (b) insert:
(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).
(5) Section 28(3), penalty provision—delete the penalty provision
and substitute:
Maximum penalty:
(a) in the case of a natural person—$6 300;
(b) in the case of a body corporate—$31 500.
Note—
See Schedule 2 clause 37B, which provides for criminal penalty
amounts specified to be adjusted every 3 years to reflect movements in the
consumer price index. The adjusted amounts are published on the AER's
website.
(6) Section 28—after subsection (3) insert:
(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.
Note—
See Schedule 2 clause 37B, which provides for criminal penalty
amounts specified to be adjusted every 3 years to reflect movements in the
consumer price index. The adjusted amounts are published on the AER's
website.
(7) Section 28(4)—after "provide information" insert:
or give evidence
(8) Section 28(4), penalty provision—delete the penalty provision
and substitute:
Maximum penalty:
(a) in the case of a natural person—$6 300;
(b) in the case of a body corporate—$31 500.
Note—
See Schedule 2 clause 37B, 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.
(9) Section 28—after subsection (5) insert:
(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.
(10) Section 28(6)(a)—delete paragraph (a) and substitute:
(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;
(11) Section 28(7)(a)—after "to the AER" insert:
, or to a person specified in a relevant notice
(12) Section 28(9)(a)—after "provide information" insert:
or give evidence
(13) Section 28(9)(c)—delete ",or produce a document," and
substitute:
, give evidence or produce a document
(14) Section 28—after subsection (9) insert:
(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.
Note—
See Schedule 2 clause 37B, 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.
(15) Section 28—after subsection (10) insert:
(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 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 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.
Note—
See Schedule 2 clause 37B, 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.
11—Amendment
of section 28R—Providing to AER false and misleading
information
Section 28R, penalty provision—delete the penalty provision and
substitute:
Maximum penalty:
(a) in the case of a natural person—$6 300;
(b) in the case of a body corporate—$31 500.
Note—
See Schedule 2 clause 37B, 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.
12—Amendment
of section 28ZF—AER enforcement guidelines
(1) Section 28ZF—before subsection (1) insert:
(a1) The AER must prepare guidelines about the exercise of its powers
under section 28, 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.
(2) Section 28ZF(2)—after "subsection" insert:
(a1) or
Note—
The heading to section 28ZF will be amended to "AER Guidelines" when this
section comes into operation.
13—Amendment
of section 53E—Providing false or misleading
information
Section 53E, penalty provision—delete the penalty provision and
substitute:
Maximum penalty:
(a) in the case of a natural person—$6 300;
(b) in the case of a body corporate—$31 500.
Note—
See Schedule 2 clause 37B, 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.
14—Amendment
of section 61—Proceedings for breaches of a provision of this Law, the
Regulations or the Rules that are not offences
(1) Section 61(1)—delete "is in breach of" and substitute:
has breached
(2) Section 61(2)—delete "to be in breach of" and
substitute:
has breached
(3) Section 61(2)—after paragraph (d) insert:
(da) an order that the person perform a specified service that relates to
the breach and that is for the benefit of the community or a section of the
community;
(db) an order that the person, at the person's expense,
engage—
(i) another person specified in the order; or
(ii) another person in a class of persons specified in the
order,
to perform a service that is specified in the order and that relates to the
breach and that is for the benefit of the community or a section of the
community;
(dc) an order to ensure that the person does not engage in further conduct
of the same nature, or similar or related conduct, during the period of the
order (which cannot exceed 3 years), including—
(i) an order that the person establish a compliance program or an
education and training program for employees or other persons involved in the
person's business, being a program designed to ensure their awareness of the
responsibilities and obligations in relation to the conduct constituting the
breach, or similar or related conduct; or
(ii) an order that the person revise the internal operations of the
person's business that led to the person committing the breach;
(dd) an order that the person—
(i) disclose, in the way and to the persons specified in the order,
specified information, being information that the person has possession of or
access to; and
(ii) publish, at the person's expense and in the way specified in the
order, an advertisement in the terms specified in, or determined in accordance
with, the order;
(4) Section 61—after subsection (2) insert:
(2a) An order under subsection (2) paragraph (db) is not
enforceable against a person mentioned in paragraph (db)(i)
or (ii).
15—Amendment
of section 61A—Proceedings for declaration that a person is in breach of a
conduct provision
(1) Section 61A(1)—delete "is in breach of" and
substitute:
has breached
(2) Section 61A(2)—delete "to be in breach of" and
substitute:
has breached
(3) Section 61A(2)(a) to (c)—delete "in breach" wherever
occurring
Note—
The heading to section 61A will be amended to "Proceedings for declaration
that a person has breached a conduct provision" when this section comes into
operation.
16—Amendment
of section 62—Additional Court orders
Section 62—delete "to be in breach of" and substitute:
to have breached
17—Amendment
of section 64—Matters for which there must be regard in determining amount
of civil penalty
(1) Section 64—delete "to be in breach of" wherever occurring and
substitute in each case:
to have breached
(2) Section 64—after paragraph (b) insert:
(ba) without limiting the operation of section 2AB(1)(c)(ii)(B) or
(C) or (d)(ii)(B)—the value of any benefit reasonably attributable to the
breach that the person or, in the case of a body corporate, any related body
corporate, has obtained, directly or indirectly; and
18—Amendment
of section 73—Definition
Section 73, definition of relevant civil penalty
provision—delete the definition and substitute:
tier 1 civil penalty provision means a civil penalty
provision with a civil penalty determined under section 2AB(1)(c) or
(d)(ii)(B);
tier 2 civil penalty provision means a civil penalty
provision with a civil penalty determined under section 2AB(1)(b) or (d)(i) or
(ii)(A);
tier 3 civil penalty provision means a civil penalty
provision with a civil penalty determined under section 2AB(1)(a).
Note—
The heading to section 73 will be amended to "Definitions" when this
section comes into operation.
19—Amendment
of section 74—Power to serve a notice
Section 74(1)—delete "that it has reason to believe has breached a
relevant" and substitute:
if the AER believes on reasonable grounds that the person has breached
a
20—Amendment
of section 75—Form of notice
Delete "relevant civil penalty provision" wherever occurring and substitute
in each case:
civil penalty provision
Section 76—delete the section and substitute:
76—Infringement penalties
(1) The infringement
penalty for a breach of a civil penalty provision is—
(a) in the case of a
tier 3 civil penalty provision—
(i) if the breach is alleged to have been committed by a natural
person—$6 790 or any lesser amount that is prescribed by the
Regulations in relation to the civil penalty provision;
(ii) if the breach is
alleged to have been committed by a body corporate—
(A) if the AER makes a
determination under
subsection (2)
—$6 790 or any lesser amount that is prescribed by the
Regulations in relation to the civil penalty provision; or
(B) in any other
case—$33 900 or any lesser amount that is prescribed by the
Regulations in relation to the civil penalty provision;
(b) in the case of a tier 1 or tier 2 civil penalty
provision—
(i) if the breach is alleged to have been committed by a natural
person—$13 600 or any lesser amount that is prescribed by the
Regulations in relation to the civil penalty provision;
(ii) if the breach is alleged to have been committed by a body
corporate—$67 800 or any lesser amount that is prescribed by the
Regulations in relation to the civil penalty provision.
(2) In the case of a
body corporate that is not a listed corporation or a body corporate that is
subject to the infringement penalty by virtue only of being a related body
corporate, the AER may, in a particular case, determine that the infringement
penalty to be included in an infringement notice to be issued to the body
corporate in relation to an alleged breach of a tier 3 civil penalty
provision will be the amount applying under
subsection (1)(a)(ii)(A)
if the AER considers this to be an appropriate course of action after
taking into account—
(a) the nature of the alleged breach; and
(b) the degree of financial impact on the body corporate if the higher
infringement penalty under
subsection (1)(a)(ii)(B)
were to be imposed; and
(c) the extent to which the imposition of the higher infringement penalty
would appear to be excessive in the circumstances; and
(d) any other matter considered relevant by the AER.
Note—
See Schedule 2 clause 37A, which provides for the amounts
specified in this section to be adjusted every 3 years to reflect movements
in the consumer price index. The adjusted amounts are published on the AER's
website.
22—Amendment
of section 81—Payment expiates breach of civil penalty
provision
Section 81—delete "relevant civil penalty provision" and
substitute:
civil penalty provision
23—Amendment
of section 82—Payment not to have certain
consequences
Section 82—delete "relevant civil penalty provision" and
substitute:
civil penalty provision
24—Amendment
of section 83—Conduct in breach of more than one civil penalty
provision
Section 83—delete "relevant civil penalty provisions" and
substitute:
civil penalty provisions
25—Amendment
of section 85—Offences and breaches by corporations
(1) Section 85(1)—delete "is in breach of" and substitute:
breaches
(2) Section 85(1)—delete "to have been in breach of" and
substitute:
to have breached
26—Amendment
of section 86—Corporations also in breach if officers and employees are in
breach
Section 86—delete "in their capacity as officer or employee of the
corporation" and substitute:
, which is within the scope of the actual or apparent authority of the
officer or employee,
27—Amendment
of section 118—Obstruction and non-compliance
(1) Section 118(1), penalty provision—delete the penalty provision
and substitute:
Maximum penalty:
(a) in the case of a natural person—$34 000;
(b) in the case of a body corporate—$170 000.
Note—
See Schedule 2 clause 37B, 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.
(2) Section 118(2), penalty provision—delete the penalty provision
and substitute:
Maximum penalty:
(a) in the case of a natural person—$34 000;
(b) in the case of a body corporate—$170 000.
Note—
See Schedule 2 clause 37B, 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.
28—Amendment
of section 141—Disclosure of information
Section 141, penalty provision—delete the penalty provision and
substitute:
Maximum penalty:
(a) in the case of a natural person—$3 400;
(b) in the case of a body corporate—$17 000.
Note—
See Schedule 2 clause 37B, 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.
29—Amendment
of section 143—Failing to attend as a witness
Section 143, penalty provision—delete the penalty provision and
substitute:
Maximum penalty: $6 300.
Note—
See Schedule 2 clause 37B, 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.
30—Amendment
of section 144—Failing to answer questions etc
Section 144(1), penalty provision—delete the penalty provision and
substitute:
Maximum penalty: $6 300.
Note—
See Schedule 2 clause 37B, 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.
31—Amendment
of section 145—Intimidation etc
Section 145, penalty provision—delete the penalty provision and
substitute:
Maximum penalty: $6 300.
Note—
See Schedule 2 clause 37B, 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.
32—Insertion
of sections 159 and 160
After section 158 insert:
159—Penalty privilege
If an individual has a privilege against self-exposure to a penalty, other
than for a criminal offence, the individual is not excused from doing any of the
following on that ground:
(a) providing information under this Law, the Regulations or the
Rules;
(b) producing a document under this Law, the Regulations or the
Rules;
(c) providing evidence under this Law, the Regulations or the
Rules;
(d) answering a question under this Law, the Regulations or the
Rules.
160—Court may grant relief from
liability
If in any proceedings under this Law in which a person, other than a body
corporate, may be liable for an offence or a civil penalty it appears to the
Court that the person acted honestly and reasonably and, having regard to all
the circumstances of the case, ought fairly to be excused, the Court may relieve
the person either wholly or partly from liability on such terms as the Court
thinks fit.
33—Amendment
of Schedule 2—Miscellaneous provisions relating to
interpretation
(1) Schedule 2—after clause 37 insert:
37A—Indexation of civil penalty
amounts
(1) Each civil penalty amount is to be adjusted in accordance with the
method prescribed by the Regulations for the purposes of this clause.
(2) The first adjustment is to occur on 1 July 2023.
(3) The next adjustment is to occur on 1 July 2026 and an
adjustment is to occur on 1 July every 3 years after that.
(4) The AER must, on or as soon as practicable after the date of the first
adjustment and before each subsequent adjustment, publish on its website the
civil penalty amounts that apply on and from the date of the adjustment.
However, a failure by the AER to do so does not invalidate an
adjustment.
(5) A civil penalty amount that is adjusted under this clause applies to a
breach of a civil penalty provision that occurs or is alleged to occur on or
after the date of the adjustment.
(6) In this clause—
civil penalty amount means—
(a) each amount specified in section 2AB(1)(a), (b), (c)(i) or
(ii)(A) or (d)(i) or (ii)(A); and
(b) each amount specified as an infringement penalty in
section 76.
37B—Indexation of criminal
penalties
(1) Each criminal penalty amount is to be adjusted in accordance with the
method prescribed by the Regulations for the purposes of this clause.
(2) The first adjustment is to occur on 1 July 2023.
(3) The next adjustment is to occur on 1 July 2026 and an
adjustment is to occur on 1 July every 3 years after that.
(4) The AER must, on or as soon as practicable after the date of the first
adjustment and before each subsequent adjustment, publish on its website the
criminal penalty amounts that apply on and from the date of the adjustment.
However, a failure by the AER to do so does not invalidate an
adjustment.
(5) A criminal penalty amount that is adjusted under this clause applies
to a breach of a provision that occurs or is alleged to occur on or after the
date of the adjustment.
(6) In this clause—
criminal penalty amount means any amount, specified in this
Law, which is the maximum monetary penalty that may be imposed on conviction for
the commission of an offence against this Law.
(2) Schedule 2, clause 39(3)—delete "is in breach of" and
substitute:
has breached
Part 3—Amendment
of National Energy Retail
Law
34—Amendment
of section 2—Interpretation
(1) Section 2(1)—after the definition of AER Retailer
Authorisation Guidelines insert:
annual turnover has the same meaning as in section 2(1)
of Schedule 2 to the Competition and Consumer Act 2010 of the
Commonwealth;
(2) Section 2(1), definition of civil penalty—delete
the definition and substitute:
civil penalty—see section 4A;
After section 4 insert:
4A—Civil penalty amounts for breaches of civil
penalty provisions
(1) Subject to this
section, the civil penalty for a breach of a civil penalty provision
is—
(a) in the case of a breach of a civil penalty provision, other than a
provision prescribed under
paragraph (b)
or
(c)
—
(i) if the breach is by a natural person—
(A) an amount not exceeding $33 900; plus
(B) an amount not exceeding $3 390 for every day during which the
breach continues;
(ii) if the breach is by a body corporate—
(A) an amount not exceeding $170 000; plus
(B) an amount not exceeding $17 000 for every day during which the
breach continues; or
(b) in the case of a
breach of a civil penalty provision prescribed by the National Regulations for
the purposes of this paragraph—
(i) if the breach is by a natural person—
(A) an amount not exceeding $287 000; plus
(B) an amount not exceeding $14 400 for every day during which the
breach continues;
(ii) if the breach is by a body corporate—
(A) an amount not exceeding $1 435 000; plus
(B) an amount not exceeding $71 800 for every day during which the
breach continues; or
(c) in the case of a
breach of a civil penalty provision prescribed by the National Regulations for
the purposes of this paragraph—
(i) if the breach is by a natural person—an amount not exceeding
$500 000;
(ii) if the breach is
by a body corporate—an amount not exceeding the greater of the
following—
(A) $10 000 000;
(B) if the Court can
determine the value of any benefit reasonably attributable to the breach of the
civil penalty provision that the body corporate, and any body corporate related
to the body corporate, has obtained, directly or indirectly—3 times
the value of that benefit;
(C) if the Court cannot
determine the value of the benefit—10% of the annual turnover of the
body corporate during the 12-month period ending at the end of the month in
which the body corporate breached, or began breaching, the civil penalty
provision.
Note—
See section 300A, which provides for the amounts specified in this
subsection to be adjusted every 3 years to reflect movements in the
consumer price index. The adjusted amounts are published on the AER's
website.
or
(C)
will only apply in a particular case if the AER, in applying for an order
under section 291(2)(a), requests that those provisions be applied in that
particular case.
After section 7 insert:
7A—Related bodies corporate
For the purposes of this Law, 2 or more bodies corporate are related
to each other if they are related bodies corporate within the meaning of the
Corporations Act 2001 of the Commonwealth.
37—Amendment
of section 107—Power to revoke retailer authorisation
Section 107(2)(a)—delete "is in breach of" wherever occurring and
substitute in each case:
has breached
38—Amendment
of section 158—Providing false or misleading
information
Section 158, penalty provision—delete the penalty provision and
substitute:
Maximum penalty:
(a) in the case of a natural person—$6 300;
(b) in the case of a body corporate—$31 500.
Note—
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.
39—Amendment
of section 206—Power to obtain information and
documents
(1) Section 206(1)—delete "or producing a document" and
substitute:
, producing a document or giving evidence
(2) Section 206(2)—delete "may require the person to—" and
substitute:
may require the person to do 1 or more of the following:
(3) Section 206(2)(b)—delete "subsection (1)." and
substitute:
subsection (1); or
(4) Section 206(2)—after paragraph (b) insert:
(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).
(5) Section 206(3), penalty provision—delete the penalty provision
and substitute:
Maximum penalty:
(a) in the case of a natural person—$6 300;
(b) in the case of a body corporate—$31 500.
Note—
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.
(6) Section 206—after subsection (3) insert:
(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.
Note—
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.
(7) Section 206(4)—after "provide information" insert:
or give evidence
(8) Section 206(4), penalty provision—delete the penalty provision
and substitute:
Maximum penalty:
(a) in the case of a natural person—$6 300;
(b) in the case of a body corporate—$31 500.
Note—
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.
(9) Section 206—after subsection (5) insert:
(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.
(10) Section 206(6)(a)—delete paragraph (a) and
substitute:
(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;
(11) Section 206(7)(a)—after "to the AER" insert:
, or to a person specified in a relevant notice
(12) Section 206(9)(a)—after "provide information" insert:
or give evidence
(13) Section 206(9)(c)—delete ", or produce a document," and
substitute:
, give evidence or produce a document
(14) Section 206—after subsection (9) insert:
(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.
Note—
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.
(15) Section 206—after subsection (10) insert:
(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.
Note—
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.
40—Amendment
of section 218—AER enforcement guidelines
(1) Section 218—before subsection (1) insert:
(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.
(2) Section 218(2)—after "subsection" insert:
(a1) or
Note—
The heading to section 218 will be amended to "AER Guidelines" when this
section comes into operation.
41—Amendment
of section 291—AER proceedings for breaches of this Law, the National
Regulations or the Rules that are not offences
(1) Section 291(1)—delete "is in breach of" and
substitute:
has breached
(2) Section 291(2)—delete "to be in breach of" and
substitute:
has breached
(3) Section 291(2)—after paragraph (d) insert:
(da) an order that the person perform a specified service that relates to
the breach and that is for the benefit of the community or a section of the
community;
(db) an order that the person, at the person's expense,
engage—
(i) another person specified in the order; or
(ii) another person in a class of persons specified in the
order,
to perform a service that is specified in the order and that relates to the
breach and that is for the benefit of the community or a section of the
community;
(dc) an order to ensure that the person does not engage in further conduct
of the same nature, or similar or related conduct, during the period of the
order (which cannot exceed 3 years), including—
(i) an order that the person establish a compliance program or an
education and training program for employees or other persons involved in the
person's business, being a program designed to ensure their awareness of the
responsibilities and obligations in relation to the conduct constituting the
breach, or similar or related conduct; or
(ii) an order that the person revise the internal operations of the
person's business that led to the person committing the breach;
(dd) an order that the person—
(i) disclose, in the way and to the persons specified in the order,
specified information, being information that the person has possession of or
access to; and
(ii) publish, at the person's expense and in the way specified in the
order, an advertisement in the terms specified in, or determined in accordance
with, the order;
(4) Section 291—after subsection (2) insert:
(2a) An order under subsection (2) paragraph (db) is not enforceable
against a person mentioned in paragraph (db)(i) or (ii).
42—Amendment
of section 292—Proceedings for declaration that a person is in breach of a
conduct provision
(1) Section 292(1)—delete "is in breach of" and
substitute:
has breached
(2) Section 292(2)—delete "to be in breach of" and
substitute:
has breached
(3) Section 292(2)(a) to (c)—delete "in breach" wherever
occurring
Note—
The heading to section 292 will be amended to "Proceedings for declaration
that a person has breached a conduct provision" when this section comes into
operation.
43—Amendment
of section 294—Matters for which there must be regard in determining
amount of civil penalty
(1) Section 294—delete "to be in breach of" wherever occurring and
substitute in each case:
to have breached
(2) Section 294—after paragraph (b) insert:
(ba) without limiting the operation of section 4A(1)(c)(ii)(B) or
(C)—the value of any benefit reasonably attributable to the breach that
the person or, in the case of a body corporate, any related body corporate, has
obtained, directly or indirectly; and
44—Insertion
of sections 300A and 300B
After section 300 insert:
300A—Indexation of civil penalty
amounts
(1) Each civil penalty amount is to be adjusted in accordance with the
method prescribed by the National Regulations for the purposes of this
section.
(2) The first adjustment is to occur on 1 July 2023.
(3) The next adjustment is to occur on 1 July 2026 and an
adjustment is to occur on 1 July every 3 years after that.
(4) The AER must, on or as soon as practicable after the date of the first
adjustment and before each subsequent adjustment, publish on its website the
civil penalty amounts that apply on and from the date of the adjustment.
However, a failure by the AER to do so does not invalidate an
adjustment.
(5) A civil penalty amount that is adjusted under this section applies to
a breach of a civil penalty provision that occurs or is alleged to occur on or
after the date of the adjustment.
(6) In this section—
civil penalty amount means each amount specified in
section 4A(1)(a), (b) or (c)(i) or (ii)(A).
300B—Indexation of criminal
penalties
(1) Each criminal penalty amount is to be adjusted in accordance with the
method prescribed by the National Regulations for the purposes of this
section.
(2) The first adjustment is to occur on 1 July 2023.
(3) The next adjustment is to occur on 1 July 2026 and an
adjustment is to occur on 1 July every 3 years after that.
(4) The AER must, on or as soon as practicable after the date of the first
adjustment and before each subsequent adjustment, publish on its website the
criminal penalty amounts that apply on and from the date of the adjustment.
However, a failure by the AER to do so does not invalidate an
adjustment.
(5) A criminal penalty amount that is adjusted under this section applies
to a breach of a provision that occurs or is alleged to occur on or after the
date of the adjustment.
(6) In this section—
criminal penalty amount means any amount, specified in this
Law, which is the maximum monetary penalty that may be imposed on conviction for
the commission of an offence against this Law.
45—Amendment
of section 305—Corporations also in breach if officers and employees are
in breach
Section 305—delete "in their capacity as officer or employee of the
corporation" and substitute:
, which is within the scope of the actual or apparent authority of the
officer or employee,
46—Insertion
of sections 321 and 322
After section 320 insert:
321—Penalty privilege
If an individual has a privilege against self-exposure to a penalty, other
than for a criminal offence, the individual is not excused from doing any of the
following on that ground:
(a) providing information under this Law, the National Regulations or the
Rules;
(b) producing a document under this Law, the National Regulations or the
Rules;
(c) providing evidence under this Law, the National Regulations or the
Rules;
(d) answering a question under this Law, the National Regulations or the
Rules.
322—Court may grant relief from
liability
If in any proceedings under this Law in which a person, other than a body
corporate, may be liable for an offence or a civil penalty it appears to the
Court that the person acted honestly and reasonably and, having regard to all
the circumstances of the case, ought fairly to be excused, the Court may relieve
the person either wholly or partly from liability on such terms as the Court
thinks fit.
Part 4—Amendment
of National Gas Law
47—Amendment
of section 2—Definitions
(1) Section 2(1)—after the definition of AER ring fencing
determination insert:
annual turnover has the same meaning as in section 2(1)
of Schedule 2 to the Competition and Consumer Act 2010 of the
Commonwealth;
(2) Section 2(1), definition of civil penalty—delete
the definition and substitute:
civil penalty—see section 3A;
(3) Section 2(1)—after the definition of limited access
arrangement decision insert:
listed corporation has the meaning given by section 9 of
the Corporations Act 2001 of the Commonwealth;
After section 3 insert:
3A—Civil penalty amounts for breaches of civil
penalty provisions
(1) Subject to this
section, the civil penalty for a breach of a civil penalty provision
is—
(a) in the case of a breach of a civil penalty provision, other than a
provision prescribed under
paragraph (b)
or
(c)
—
(i) if the breach is by a natural person—
(A) an amount not exceeding $33 900; plus
(B) an amount not exceeding $3 390 for every day during which the
breach continues;
(ii) if the breach is by a body corporate—
(A) an amount not exceeding $170 000; plus
(B) an amount not exceeding $17 000 for every day during which the
breach continues; or
(b) in the case of a
breach of a civil penalty provision prescribed by the Regulations for the
purposes of this paragraph—
(i) if the breach is by a natural person—
(A) an amount not exceeding $287 000; plus
(B) an amount not exceeding $14 400 for every day during which the
breach continues;
(ii) if the breach is by a body corporate—
(A) an amount not exceeding $1 435 000; plus
(B) an amount not exceeding $71 800 for every day during which the
breach continues; or
(c) in the case a
breach of a civil penalty provision prescribed by the Regulations for the
purposes of this paragraph—
(i) if the breach is by a natural person—an amount not exceeding
$500 000;
(ii) if the breach is
by a body corporate—an amount not exceeding the greater of the
following:
(A) $10 000 000;
(B) if the Court can
determine the value of any benefit reasonably attributable to the breach of the
civil penalty provision that the body corporate, and any body corporate related
to the body corporate, has obtained, directly or indirectly—3 times
the value of that benefit;
(C) if the Court cannot
determine the value of the benefit—10% of the annual turnover of the
body corporate during the 12-month period ending at the end of the month in
which the body corporate breached, or began breaching, the civil penalty
provision.
Note—
See Schedule 2 clause 47A, which provides for the amounts
specified in this subsection to be adjusted every 3 years to reflect
movements in the consumer price index. The adjusted amounts are published on the
AER's website.
or
(C)
will only apply in a particular case if the AER, in applying for an order
under section 231(2)(a), requests that those provisions be applied in that
particular case.
After section 19 insert:
19A—Related bodies corporate
For the purposes of this Law, 2 or more bodies corporate are related to
each other if they are related bodies corporate within the meaning of the
Corporations Act 2001 of the Commonwealth.
50—Amendment
of section 34—Return of identity cards
Section 34, penalty provision—delete the penalty provision and
substitute:
Maximum penalty: $620.
Note—
See Schedule 2 clause 47B, 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.
51—Amendment
of section 41—Obstruction of persons authorised to
enter
Section 41, penalty provision—delete the penalty provision and
substitute:
Maximum penalty:
(a) in the case of a natural person—$3 400;
(b) in the case of a body corporate—$17 000.
Note—
See Schedule 2 clause 47B, 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.
52—Amendment
of section 42—Power to obtain information and documents in relation to
performance and exercise of functions and powers
(1) Section 42(1)—delete "or producing a document" and
substitute:
, producing a document or giving evidence
(2) Section 42(2)—delete "may require the person to—" and
substitute:
may require the person to do 1 or more of the following:
(3) Section 42(2)(b)—delete "subsection (1)." and
substitute:
subsection (1); or
(4) Section 42(2)—after paragraph (b) insert:
(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).
(5) Section 42(3), penalty provision—delete the penalty provision
and substitute:
Maximum penalty:
(a) in the case of a natural person—$6 300;
(b) in the case of a body corporate—$31 500.
Note—
See Schedule 2 clause 47B, 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.
(6) Section 42—after subsection (3) insert:
(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.
Note—
See Schedule 2 clause 47B, 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.
(7) Section 42(4)—after "provide information" insert:
or give evidence
(8) Section 42(4), penalty provision—delete the penalty provision
and substitute:
Maximum penalty:
(a) in the case of a natural person—$6 300;
(b) in the case of a body corporate—$31 500.
Note—
See Schedule 2 clause 47B, 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.
(9) Section 42—after subsection (5) insert:
(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.
(10) Section 42(6)(a)—delete paragraph (a) and substitute:
(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;
(11) Section 42(7)(a)—after "to the AER" insert:
, or to a person specified in a relevant notice
(12) Section 42(9)(a)—after "provide information" insert:
or give evidence
(13) Section 42(9)(c)—delete ", or produce a document," and
substitute:
, give evidence or produce a document
(14) Section 42—after subsection (9) insert:
(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.
Note—
See Schedule 2 clause 47B, 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.
(15) Section 42—after subsection (10) insert:
(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 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 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.
Note—
See Schedule 2 clause 47B, 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.
53—Amendment
of section 60—Providing to AER false and misleading
information
Section 60, penalty provision—delete the penalty provision and
substitute:
Maximum penalty:
(a) in the case of a natural person—$6 300;
(b) in the case of a body corporate—$31 500.
Note—
See Schedule 2 clause 47B, 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.
54—Amendment
of section 68—AER enforcement guidelines
(1) Section 68—before subsection (1) insert:
(a1) The AER must prepare guidelines about the exercise of its powers
under section 42, 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.
(2) Section 68(2)—after "subsection" insert:
(a1) or
Note—
The heading to section 68 will be amended to "AER Guidelines" when this
section comes into operation.
55—Amendment
of section 83D—False or misleading statements
Section 83D, penalty provision—delete the penalty provision and
substitute:
Maximum penalty:
(a) in the case of a natural person—$3 400;
(b) in the case of a body corporate—$17 000.
Note—
See Schedule 2 clause 47B, 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.
56—Amendment
of section 91BC—AEMO's power of direction
(1) Section 91BC(5), penalty provision—delete the penalty provision
and substitute:
Maximum penalty:
(a) in the case of a natural person—$34 000;
(b) in the case of a body corporate—$170 000.
Note—
See Schedule 2 clause 47B, 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.
(2) Section 91BC(6)—delete "$10 000" and substitute:
$17 000
Note—
The following Note will be inserted at the foot of section
91BC(6):
"Note—
See Schedule 2 clause 47B, 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."
57—Amendment
of section 91FE—Providing false or misleading
information
Section 91FE, penalty provision—delete the penalty provision and
substitute:
Maximum penalty:
(a) in the case of a natural person—$6 300;
(b) in the case of a body corporate—$31 500.
Note—
See Schedule 2 clause 47B, 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.
58—Amendment
of section 91FEC—Giving to AEMO false and misleading
information
Section 91FEC, penalty provision—delete the penalty provision and
substitute:
Maximum penalty:
(a) in the case of a natural person—$6 300;
(b) in the case of a body corporate—$31 500.
Note—
See Schedule 2 clause 47B, 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.
59—Amendment
of section 91FEG—Giving to AEMO false and misleading
information
Section 91FEG, penalty provision—delete the penalty provision and
substitute:
Maximum penalty:
(a) in the case of a natural person—$6 300;
(b) in the case of a body corporate—$31 500.
Note—
See Schedule 2 clause 47B, 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.
60—Amendment
of section 91FEI—Giving false and misleading information used for capacity
auctions
Section 91FEI, penalty provision—delete the penalty provision and
substitute:
Maximum penalty:
(a) in the case of a natural person—$3 400;
(b) in the case of a body corporate—$17 000.
Note—
See Schedule 2 clause 47B, 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.
61—Amendment
of section 200—Disclosure of information
Section 200(2), penalty provision—delete the penalty provision and
substitute:
Maximum penalty:
(a) in the case of a natural person—$3 400;
(b) in the case of a body corporate—$17 000.
Note—
See Schedule 2 clause 47B, 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.
62—Amendment
of section 202—Failing to attend as a witness
Section 202, penalty provision—delete the penalty provision and
substitute:
Maximum penalty: $6 300.
Note—
See Schedule 2 clause 47B, 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.
63—Amendment
of section 203—Failing to answer questions etc
Section 203(1), penalty provision—delete the penalty provision and
substitute:
Maximum penalty: $6 300.
Note—
See Schedule 2 clause 47B, 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.
64—Amendment
of section 204—Intimidation etc
Section 204, penalty provision—delete the penalty provision and
substitute:
Maximum penalty: $6 300.
Note—
See Schedule 2 clause 47B, 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.
65—Amendment
of section 231—AER proceedings for breaches of this Law, Regulations or
the Rules that are not offences
(1) Section 231(1)—delete "is in breach of" and
substitute:
has breached
(2) Section 231(2)—delete "to be in breach of" and
substitute:
has breached
(3) Section 231(2)—after paragraph (d) insert:
(da) an order that the person perform a specified service that relates to
the breach and that is for the benefit of the community or a section of the
community;
(db) an order that the person, at the person's expense,
engage—
(i) another person specified in the order; or
(ii) another person in a class of persons specified in the
order,
to perform a service that is specified in the order and that relates to the
breach and that is for the benefit of the community or a section of the
community;
(dc) an order to ensure that the person does not engage in further conduct
of the same nature, or similar or related conduct, during the period of the
order (which cannot exceed 3 years), including—
(i) an order that the person establish a compliance program or an
education and training program for employees or other persons involved in the
person's business, being a program designed to ensure their awareness of the
responsibilities and obligations in relation to the conduct constituting the
breach, or similar or related conduct; or
(ii) an order that the person revise the internal operations of the
person's business that led to the person committing the breach;
(dd) an order that the person—
(i) disclose, in the way and to the persons specified in the order,
specified information, being information that the person has possession of or
access to; and
(ii) publish, at the person's expense and in the way specified in the
order, an advertisement in the terms specified in, or determined in accordance
with, the order;
(4) Section 231—after subsection (2) insert:
(2a) An order under paragraph (db) of subsection (2) is not
enforceable against a person mentioned in paragraph (db)(i) or
(ii).
66—Amendment
of section 232—Proceedings for declaration that a person is in breach of a
conduct provision
(1) Section 232(1)—delete "is in breach of" and
substitute:
has breached
(2) Section 232(2)—delete "to be in breach of" and
substitute:
has breached
(3) Section 232(2)(a) to (c)—delete "in breach" wherever
occurring
Note—
The heading to section 232 will be amended to "Proceedings for declaration
that a person has breached a conduct provision" when this section comes into
operation.
67—Amendment
of section 234—Matters for which there must be regard in determining
amount of civil penalty
(1) Section 234—delete "to be in breach of" wherever occurring and
substitute in each case:
to have breached
(2) Section 234—after paragraph (b) insert:
(ba) without limiting the operation of section 3A(1)(c)(ii)(B) or
(C)—the value of any benefit reasonably attributable to the breach that
the person or, in the case of a body corporate, any related body corporate, has
obtained, directly or indirectly; and
68—Amendment
of section 277—Power to serve notice
Section 277(1)—delete "that the AER has reason to believe has
breached" and substitute:
if the AER believes on reasonable grounds that the person has
breached
69—Substitution
of section 279
Section 279—delete the section and substitute:
279—Infringement penalties
(1) In this section—
tier 1 civil penalty provision means a provision with a civil
penalty determined under section 3A(1)(c);
tier 2 civil penalty provision means a provision with a civil
penalty determined under section 3A(1)(b);
tier 3 civil penalty provision means a provision with a civil
penalty determined under section 3A(1)(a).
(2) The infringement
penalty for a breach of a civil penalty provision is—
(a) in the case of a
tier 3 civil penalty provision—
(i) if the breach is alleged to have been committed by a natural
person—$6 790 or any lesser amount that is prescribed by the Regulations
in relation to the civil penalty provision;
(ii) if the breach is
alleged to have been committed by a body corporate—
(A) if the AER makes a
determination under
subsection (3)
—$6 790 or any lesser amount that is prescribed by the
Regulations in relation to the civil penalty provision; or
(B) in any other
case—$33 900 or any lesser amount that is prescribed by the
Regulations in relation to the civil penalty provision;
(b) in the case of a tier 2 or tier 1 civil penalty
provision—
(i) if the breach is alleged to have been committed by a natural
person—$13 600 or any lesser amount that is prescribed by the
Regulations in relation to the civil penalty provision;
(ii) if the breach is alleged to have been committed by a body
corporate—$67 800 or any lesser amount that is prescribed by the
Regulations in relation to the civil penalty provision.
(3) In the case of a
body corporate that is not a listed corporation or a body corporate that is
subject to the infringement penalty by virtue only of being a related body
corporate, the AER may, in a particular case, determine that the infringement
penalty to be included in an infringement notice to be issued to the body
corporate in relation to an alleged breach of a tier 3 civil penalty
provision will be the amount applying under
subsection (2)(a)(ii)(A)
if the AER considers this to be an appropriate course of action after
taking into account—
(a) the nature of the alleged breach; and
(b) the degree of financial impact on the body corporate if the higher
infringement penalty under
subsection (2)(a)(ii)(B)
were to be imposed; and
(c) the extent to which the imposition of the higher infringement penalty
would appear to be excessive in the circumstances; and
(d) any other matter considered relevant by the AER.
Note—
See Schedule 2 clause 47A, which provides for the amounts
specified in this section to be adjusted every 3 years to reflect movements
in the consumer price index. The adjusted amounts are published on the AER's
website.
70—Amendment
of section 289—Corporations also in breach if officers and employees are
in breach
Section 289—delete "in their capacity as officer or employee of the
corporation" and substitute:
, which is within the scope of the actual or apparent authority of the
officer or employee,
71—Insertion
of sections 335A and 335B
After section 335 insert:
335A—Penalty privilege
If an individual has a privilege against self-exposure to a penalty, other
than for a criminal offence, the individual is not excused from doing any of the
following on that ground:
(a) providing information under this Law, the Regulations or the
Rules;
(b) producing a document under this Law, the Regulations or the
Rules;
(c) providing evidence under this Law, the Regulations or the
Rules;
(d) answering a question under this Law, the Regulations or the
Rules.
335B—Court may grant relief from
liability
If in any proceedings under this Law in which a person, other than a body
corporate, may be liable for an offence or a civil penalty it appears to the
Court that the person acted honestly and reasonably and, having regard to all
the circumstances of the case, ought fairly to be excused, the Court may relieve
the person either wholly or partly from liability on such terms as the Court
thinks fit.
72—Amendment
of Schedule 2—Miscellaneous provisions relating to
interpretation
(1) Schedule 2—after clause 47 insert:
47A—Indexation of civil penalty
amounts
(1) Each civil penalty amount is to be adjusted in accordance with the
method prescribed by the Regulations for the purposes of this clause.
(2) The first adjustment is to occur on 1 July 2023.
(3) The next adjustment is to occur on 1 July 2026 and an
adjustment is to occur on 1 July every 3 years after that.
(4) The AER must, on or as soon as practicable after the date of the first
adjustment and before each subsequent adjustment, publish on its website the
civil penalty amounts that apply on and from the date of the adjustment.
However, a failure by the AER to do so does not invalidate an
adjustment.
(5) A civil penalty amount that is adjusted under this clause applies to a
breach of a civil penalty provision that occurs or is alleged to occur on or
after the date of the adjustment.
(6) In this clause—
civil penalty amount means—
(a) each amount specified in section 3A(1)(a), (b) or (c)(i) or
(ii)(A); and
(b) each amount specified as an infringement penalty in
section 279.
47B—Indexation of criminal
penalties
(1) Each criminal penalty amount is to be adjusted in accordance with the
method prescribed by the Regulations for the purposes of this clause.
(2) The first adjustment is to occur on 1 July 2023.
(3) The next adjustment is to occur on 1 July 2026 and an
adjustment is to occur on 1 July every 3 years after that.
(4) The AER must, on or as soon as practicable after the date of the first
adjustment and before each subsequent adjustment, publish on its website the
criminal penalty amounts that apply on and from the date of the adjustment.
However, a failure by the AER to do so does not invalidate an
adjustment.
(5) A criminal penalty amount that is adjusted under this clause applies
to a breach of a provision that occurs or is alleged to occur on or after the
date of the adjustment.
(6) In this clause—
criminal penalty amount means any amount, specified in this
Law, which is the maximum monetary penalty that may be imposed on conviction for
the commission of an offence against this Law.
(2) Schedule 2, clause 49(3)—delete "is in breach of" and
substitute:
has breached