The Australian Energy Regulator (AER) will have the power to compel a person to appear before it to provide information, evidence or documents when the Statutes Amendment (National Energy Laws) (Penalties and Enforcement) Act 2020 (the Act) comes into force.
This power is in addition to the existing power to require a person to provide information or documents under section 28 of the National Electricity Law (NEL), section 206 of the National Energy Retail Law (NERL) and section 42 of the National Gas Law (NGL) (the compulsory notice sections).
Under the Act, the AER is required to publish Guidelines which must include information about the exercise of the AER's powers, including:
- the rights and obligations of persons who are served with a relevant notice under the compulsory notice sections;
- the penalties applying under the compulsory notice sections for non-compliance with a notice; and
- the purposes for which information obtained under the compulsory notice sections may be used.
The AER has released its draft Compulsory Notice Guidelines for consultation. The draft Guidelines also contain information on the practical arrangements under which an oral examination is likely to be conducted. This includes the ability for the examination to be conducted remotely where the AER deems that this is appropriate.
The AER will publish the final Guidelines shortly after the oral examination power comes into force.
The final Guidelines are for general information and does not constitute legal advice. Specific information will also be provided by the AER at the time to any person who is issued with a compulsory notice.
The new power will come into force following proclamation of the Act. The AER will advise stakeholders when this occurs.
Invitation for submissions
We invite regulated businesses and other interested parties to make submissions on the draft Guidelines through application by close of business Friday 11 December 2020.
We seek comment on the extent to which the draft Guidelines address the required information in the bullet points above, as well as the processes for the exercise of the oral examinations power.
Submissions should be emailed to; AERCompliance
aer [dot] gov [dot] au (subject: Attention%3A%20Jacqui%20Thorpe%2C%20General%20Manager%2C%20C%26E%20-%20Compulsory%20Notice%20Guidelines%20) (AERCompliance[at]aer[dot]gov[dot]au) with the subject line: Attention: Jacqui Thorpe, General Manager, Compliance & Enforcement.
Alternatively, written submissions may be posted to:
Jacqui Thorpe
General Manager, Compliance & Enforcement
Australian Energy Regulator
GPO Box 520
Melbourne VIC 3001
We will take into account submissions in finalising the Guidelines.