Australian Energy Regulator v Origin Energy Electricity Limited - [2024] FCA 1529

FEDERAL COURT OF AUSTRALIA
Australian Energy Regulator v Origin Energy Electricity Limited [2024] FCA 1529

File number(s): VID 606 of 2024

Judgment of: O'BRYAN J

Date of judgment: 18 December 2024

Date of publication of reasons: 17 February 2025

Catchwords: CONSUMER LAW – supply of energy to households which require life support equipment – where the respondents admitted contravening rr 124(1)(a)-(c), 124(3)(a), 125(1) and 124B(1)(c) of the National Energy Retail Rules and s 273 of the National Energy Retail Law –where the applicant and the respondents agreed to proposed declarations of contravention and civil penalties totalling $12 million – whether proposed penalties appropriate

Legislation:
Australian Securities and Investments Commission Act 2001 (Cth)

Competition and Consumer Act 2010 (Cth) ss 44AAG(1), 44AAG(2)(a)

Corporations Act 2001 (Cth)

Evidence Act 1995 (Cth) s 191

Federal Court of Australia Act 1976 (Cth) s 43

National Energy Retail Law ss 4A(1)(c)(ii), 273

National Energy Retail Rules rr 124(1)(a)-(c), 124(3)(a), 124B(1)(c), 125(1)

National Energy Retail Law Act 2012 (ACT)

National Energy Retail Law (Adoption) Act 2012 (NSW)

National Energy Retail Law (Queensland) Act 2014 (Qld)

National Energy Retail Law (South Australia) Act 2011 (SA)

Cases cited:
ACCC v Dataline.Net.Au Pty Ltd [2006] FCA 1427

Ainsworth v Criminal Justice Commission (1992) 175 CLR 564

Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2018) 262 CLR 157

Australian Building and Construction Commissioner v Pattinson (2022) 274 CLR 450

Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (1997) 145 ALR 36

Australian Competition and Consumer Commission v Cement Australia Pty Ltd (2017) 258 FCR 312

Australian Competition and Consumer Commission v Coles Supermarkets Australia Pty Ltd [2014] FCA 1405

Australian Competition and Consumer Commission v Hillside (Australia New Media) Pty Ltd trading as Bet365 (No 2) [2016] FCA 698

Australian Competition and Consumer Commission v Leahy Petroleum Pty Ltd (No 2) [2005] FCA 254

Australian Competition and Consumer Commission v Optus Mobile Pty Ltd [2019] FCA 106

Australian Competition and Consumer Commission v Real Estate Institute of Western Australia Inc [1999] FCA 18

Australian Competition and Consumer Commission v Reckitt Benckiser [2016] FCAFC 181

Australian Competition and Consumer Commission v Telstra (2010) 188 FCR 238

Australian Competition and Consumer Commission v TPG Internet Pty Ltd (2013) 250 CLR 640

Australian Competition and Consumer Commission v TPG Internet Pty Ltd (No 2) [2012] FCA 629

Australian Competition and Consumer Commission v Virgin Mobile Australia Pty Ltd (No 2) [2002] FCA 1548

Australian Competition and Consumer Commission v Yazaki Corporation (2018) 262 FCR 243

Australian Competition and Consumer Commission v Yellow Page Marketing BV (No 2) (2011) 195 FCR 1

Australian Energy Regulator v AGL Sales Pty Limited [2020] FCA 1623

Australian Energy Regulator v EnergyAustralia Pty Ltd [2022] FCA 644

Commonwealth v Director, Fair Work Building Industry Inspectorate (2015) 258 CLR 482

Construction, Forestry, Mining and Energy Union v Cahill [2010] FCAFC 39

Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421

Markarian v The Queen (2005) 228 CLR 357

Mayfair Wealth Partners Pty Ltd v Australian Securities and Investments Commission (2022) 295 FCR 106

NW Frozen Foods Pty Ltd v Australian Competition & Consumer Commission (1996) 71 FCR 285

Singtel Optus Pty Ltd v Australian Competition and Consumer Commission [2012] FCAFC 20

Trade Practices Commission v CSR Ltd [1990] FCA 762

Volkswagen Aktiengesellschaft v Australian Competition and Consumer Commission (2021) 284 FCR 24

Division: General Division

Registry: Victoria

National Practice Area: Commercial and Corporations

Sub-area: Regulator and Consumer Protection

Number of paragraphs: 136

Date of hearing: 18 December 2024

Counsel for the Applicant: A McClelland KC with S McLeod

Solicitors for the Applicant: Australian Government Solicitor

Counsel for the Respondents: F Gordon KC with A Poukchanski

Solicitors for the Respondents: Allens

ORDERS

VID 606 of 2024

BETWEEN:
AUSTRALIAN ENERGY REGULATOR

Applicant

AND:
ORIGIN ENERGY ELECTRICITY LIMITED (ACN 071 052 287)

First Respondent

ORIGIN ENERGY RETAIL LTD (ACN 078 868 425)

Second Respondent

ORIGIN ENERGY LPG LTD (ACN 000 508 369)

Third Respondent

ORDER MADE BY:

O'BRYAN J

DATE OF ORDER:

18 DECEMBER 2024

THE COURT NOTES THAT:
Each of the first, second and third respondents undertakes not to seek or accept any indemnity or contribution from:
(a)Tili.io Pty Ltd; or
(b)Accenture Australia Pty Ltd,

in relation to the pecuniary penalty imposed on each of them in these orders.
THE COURT DECLARES THAT:
1.The first respondent, Origin Energy Electricity Limited (ACN 071 052 287), during the period 1 February 2019 to 12 September 2022, contravened:
(a)rule 124(1)(a) of the National Energy Retail Rules on 95 occasions by failing to register that a person residing or intending to reside at a customer's premises required life support equipment and the date from which the life support equipment was required, when advised by the customer and, as a consequence of Origin’s reliance on registration to engage its systems and processes for compliance with rr 124(1)(b) and (c), also contravened:
(i)rule 124(1)(b) of the National Energy Retail Rules on 91 occasions by failing to provide in writing to the customer the information prescribed by r 124(1)(b) of the National Energy Retail Rules (as then in force) within 5 business days of receipt of advice from the customer that life support equipment was required at the customer's premises;
(ii)rule 124(1)(c) of the National Energy Retail Rules on 94 occasions by failing to notify a distributor that a person residing or intending to reside at a customer's premises required life support equipment and the date from which the life support equipment was required, when advised by the customer;

(b)rule 124(3)(a) of the National Energy Retail Rules on 6 occasions by failing to register that a person residing or intending to reside at a customer's premises required life support equipment and the date from which the life support equipment was required, when advised by the distributor;
(c)rule 124(1)(c) of the National Energy Retail Rules on 17 occasions by failing to notify a distributor that a person residing or intending to reside at a customer's premises required life support equipment and the date from which the life support equipment was required, when advised by the customer;
(d)rule 125(1) of the National Energy Retail Rules on 4,277 occasions by deregistering a customer's premises other than in the circumstances permitted by r 125;
(e)rule 124B(1)(c) of the National Energy Retail Rules on 58 occasions by arranging for the de-energisation of a customer’s premises in circumstances where the first respondent was required to register the customer's premises under r 124(1)(a) or r 124(3); and
(f)section 273(1) of the National Energy Retail Law by failing to establish policies, systems and procedures to enable it to efficiently and effectively monitor its compliance with the requirements of the National Energy Retail Rules, National Energy Retail Law and National Energy Retail Regulations.

2.The second respondent, Origin Energy Retail Ltd (ACN 078 868 425), during the period 1 February 2019 to 12 September 2022, contravened:
(a)rule 124(1)(a) of the National Energy Retail Rules on 9 occasions by failing to register that a person residing or intending to reside at a customer's premises required life support equipment and the date from which the life support equipment was required, when advised by the customer and, as a consequence of Origin’s reliance on registration to engage its systems and processes for compliance with rr 124(1)(b) and (c), also contravened:
(i)rule 124(1)(b) of the National Energy Retail Rules on 9 occasions by failing to provide in writing to the customer the information prescribed by r 124(1)(b) of the National Energy Retail Rules (as then in force) within 5 business days of receipt of advice from the customer that life support equipment was required at the customer's premises; and
(ii)rule 124(1)(c) of the National Energy Retail Rules on 9 occasions by failing to notify a distributor that a person residing or intending to reside at a customer's premises required life support equipment and the date from which the life support equipment was required, when advised by the customer;

(b)rule 125(1) of the National Energy Retail Rules on 98 occasions by deregistering a customer's premises other than in the circumstances permitted by r 125; and
(c)section 273(1) of the National Energy Retail Law by failing to establish policies, systems, and procedures to enable it to efficiently and effectively monitor its compliance with the requirements of the National Energy Retail Rules, National Energy Retail Law and National Energy Retail Regulations.

3.The third respondent, Origin Energy LPG Ltd (ACN 000 508 369), during the period from 1 February 2019 to 12 September 2022, contravened:
(a)rule 124(1)(a) of the National Energy Retail Rules on 17 occasions by failing to register that a person residing or intending to reside at a customer's premises required life support equipment and the date from which the life support equipment was required, when advised by the customer and, as a consequence of Origin’s reliance on registration to engage its systems and processes for compliance with rr 124(1)(b) and (c), also contravened:
(i)rule 124(1)(b) of the National Energy Retail Rules on 17 occasions by failing to provide in writing to the customer the information prescribed by r 124(1)(b) of the National Energy Retail Rules (as then in force) within 5 business days of receipt of advice from the customer that life support equipment was required at the customer's premises;
(ii)rule 124(1)(c) of the National Energy Retail Rules on 17 occasions by failing to notify a distributor that a person residing or intending to reside at a customer's premises required life support equipment and the date from which the life support equipment was required, when advised by the customer;

(b)rule 125(1) of the National Energy Retail Rules on 394 occasions by deregistering a customer's premises other than in the circumstances permitted by r 125; and
(c)section 273(1) of the National Energy Retail Law by failing to establish policies, systems, and procedures to enable it to efficiently and effectively monitor its compliance with the requirements of the National Energy Retail Rules, National Energy Retail Law and National Energy Retail Regulations.

AND THE COURT ORDERS THAT:
4.Pursuant to s 44AAG(2)(a) of the Competition and Consumer Act 2010 (Cth), the first respondent pay to the Commonwealth of Australia an aggregate penalty in the sum of $10,750,000 in respect of the contraventions referred to in the declarations in paragraphs 1(a) to (e) of these orders, above, to be paid within 30 days of this order.
5.Pursuant to s 44AAG(2)(a) of the Competition and Consumer Act 2010 (Cth), the second respondent pay to the Commonwealth of Australia an aggregate penalty in the sum of $260,000 in respect of the contraventions referred to in the declarations in paragraphs 2(a) to (c) of these orders, above, to be paid within 30 days of this order.
6.Pursuant to s 44AAG(2)(a) of the Competition and Consumer Act 2010 (Cth), the third respondent pay to the Commonwealth of Australia an aggregate penalty in the sum of $990,000 in respect of the contraventions referred to in the declarations in paragraphs 3(a) to (c) of these orders, above, to be paid within 30 days of this order.
7.Pursuant to s 43 of the Federal Court of Australia Act 1976 (Cth), the respondents pay a contribution to the applicant’s costs in the sum of $175,000.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT
O’BRYAN J:
A. INTRODUCTION

By originating application dated 28 June 2024, the applicant, the Australian Energy Regulator (AER), seeks relief pursuant to ss 44AAG(1) and 44AAG(2)(a) of the Competition and Consumer Act 2010 (Cth) (CCA), and s 43 of the Federal Court of Australia Act 1976 (Cth) (FCA Act), in respect of conduct by the respondents, Origin Energy Electricity Limited (Origin Electricity), Origin Energy Retail Ltd (Origin Retail), and Origin Energy LPG Ltd (Origin LPG) (collectively, Origin), that is alleged to contravene rr 124(1)(a)-(c), 124(3)(a), 125(1) and 124B(1)(c) of the National Energy Retail Rules (NER Rules) and s 273 of the National Energy Retail Law (NER Law).
Part 7 of the NER Rules sets out the obligations on energy retailers and distributors when a person residing at a customer’s premises requires life support (Life Support Rules). The Life Support Rules serve the essential purpose of ensuring that individuals who require life support equipment are not exposed to a risk of disconnection of their energy supply, have access to the information necessary to prepare for unplanned outages, and have additional notice of planned outages. In light of the important protections which the Life Support Rules provide to vulnerable individuals, a failure by a retailer to comply with one or more of the rules may result in harm or, in the worst of cases, death.
This proceeding relates to serious and extensive failures by Origin to comply with certain rules of the Life Support Rules between 1 February 2019 and 12 September 2022 (the relevant period). The contraventions broadly consist of:
(a)a failure to register 127 customers as requiring life support equipment at their premises;
(b)a failure to notify relevant distributors of the life support requirements of 17 customers;
(c)the deregistration of the premises of 4,769 customers as requiring life support equipment other than in the circumstances permitted by the NER Rules;
(d)of those customers whose premises were deregistered, the de-energising of the premises of 58 customers requiring life support equipment for non-payment after improperly deregistering their premises; and
(e)a failure to establish policies, systems and procedures to enable each respondent entity to efficiently and effectively monitor its and its agents’ compliance with the Life Support Rules and to detect the contraventions the subject of this proceeding, in contravention s 273(1) of the NER Law.
At the point in time at which the originating application was filed, the parties had already reached agreement as to the terms on which they proposed that the matter be resolved. Those terms consist of a suite of remedies, comprising proposed declarations and orders (the proposed orders), and an enforceable undertaking executed by Origin and accepted by the AER on 20 June 2024 (the enforceable undertaking). The facts agreed between the parties for the purposes of s 191 of the Evidence Act 1995 (Cth) are set out in a statement of agreed facts and admissions dated 28 June 2024 (the SAFA). Joint submissions on contraventions and relief were filed on 13 December 2024. By those submissions, the parties jointly submitted that the Court should grant the relief in the proposed orders, including:
(a)declarations, pursuant to s 44AAG(1) of the CCA, in respect of the contraventions admitted by each Origin respondent;
(b)orders, pursuant to s 44AAG(2)(a) of the CCA, that the respondents pay to the Commonwealth of Australia the following aggregate penalties in respect of their respective admitted contraventions:
(i)in respect of Origin Electricity, $10,750,000;
(ii)in respect of Origin Retail, $260,000;
(iii)in respect of Origin LPG, $990,000; and
(c)an order, pursuant to s 43 of the FCA Act, that Origin pay a contribution of two thirds of the AER’s costs of and incidental to this proceeding, to a maximum of $175,000.
The penalty hearing took place on 18 December 2024, at the conclusion of which I made orders substantially in the form sought by the parties. These are my reasons for doing so.
B. RELEVANT STATUTORY PROVISIONS AND LEGAL PRINCIPLES
Overview of the AER, NER Law and NER Rules
The AER is established under s 44AE of the CCA. Its relevant functions are outlined in s 204(1) of the NER Law. They include monitoring compliance with the NER Law, the NER Rules and the National Energy Retail Regulations (NER Regulations); investigating breaches or possible breaches of those energy laws; and instituting and conducting proceedings in relation to breaches.
The AER’s power to institute proceedings in relation to breaches of the NER Law, the NER Rules and the NER Regulations is set out in s 289 of the NER Law. The AER may apply to the Federal Court for orders that a person is in breach of a State energy law, and for associated relief, under s 44AAG(1) of the CCA. A State energy law includes both the NER Law and the NER Rules.
The NER Law itself is contained in the Schedule to the National Energy Retail Law (South Australia) Act 2011 (SA) (SA Act). It relevantly applies:
(a)in South Australia, pursuant to s 4(3) of the SA Act;
(b)in New South Wales, pursuant to s 4 of the National Energy Retail Law (Adoption) Act 2012 (NSW);
(c)in Queensland, pursuant to s 4 of the National Energy Retail Law (Queensland) Act 2014 (Qld); and
(d)in the Australian Capital Territory, pursuant to s 6 of the National Energy Retail Law Act 2012 (ACT).
The NER Rules are made pursuant to Part 10 of the NER Law, and the NER Regulations pursuant to Part 11. The NER Rules have the force of law under s 15 of the NER Law, and the NER Regulations apply pursuant to s 3 of the NER Law.
At all material times, each of Origin Electricity, Origin Retail, and Origin LPG was a “retailer” and “regulated entity” within the meaning of s 2 of the NER Law.
The Life Support Rules
The Life Support Rules apply in relation to a customer who is a party to a contract with a retailer for the sale of energy: NER Rules r 123. Energy means electricity or gas or both: NER Law s 2.
The term “life support equipment” is defined in r 3 of the NER Rules to mean certain specified pieces of equipment (such as a “kidney dialysis machine” and “crigler najjar syndrome phototherapy equipment”) as well as, “in relation to a particular customer — any other equipment that a registered medical practitioner certifies is required for a person residing at the customer’s premises for life support”.
The following rules of the Life Support Rules are relevant to this proceeding.
Registration of life support equipment: rr 124(1)(a)-(c) and 124(3)(a)
Rule 124(1) provides that, when advised by a customer that a person residing or intending to reside at the customer’s premises requires life support equipment (referred to hereafter as the provision of life support advice), a retailer must:
(e)register that a person residing or intending to reside at the customer’s premises requires life support equipment and the date from which the life support equipment is required: r 124(1)(a);
(f)subject to certain exceptions not relevant to this proceeding, no less than five business days after receipt of life support advice, provide in writing to the customer a medical confirmation form and certain additional information: r 124(1)(b); and
(g)subject again to certain exceptions not presently relevant, notify the distributor that a person residing or intending to reside at the customer’s premises requires life support equipment and the date from which the life support equipment is required: r 124(1)(c).

Subrules 124(4)(a)-(c) set out equivalent obligations on the part of a distributor when the distributor is provided with life support advice by a customer, but with r 124(4)(c) requiring the distributor to notify the retailer that such advice has been received.
Rule 124(3)(a) provides that, when a retailer receives a notification from a distributor under r 124(4)(c), the retailer must register that a person residing or intending to reside at the customer’s premises requires life support equipment and the date from which the life support equipment is required.
Ongoing retailer and distributor obligations: r 124B(1)(c)
Rule 124B(1) imposes a number of ongoing obligations on a retailer where the retailer “is required to register a customer’s premises under rr 124(1)(a) or 124(3)”.
The reference in the chapeau of r 124B(1) to “required” has the effect that the ongoing obligations in that subrule apply even where a retailer has not in fact registered a customer’s premises as requiring life support equipment, but ought to have done so pursuant to rr 124(1)(a) or 124(3).
The ongoing obligations include the obligation, in r 124B(1)(c), to:
except in the case of a retailer planned interruption under rule 59C, not arrange for the de-energisation of the premises from the date the life support equipment will be required at the premises…
Pursuant to r 125(3), the retailer obligations (in r 124B(1)) and the distributor obligations (in r 124B(2)) cease to apply in respect of a customer’s premises “once that customer’s premises is validly deregistered” under r 125. The rule pertaining to valid deregistration is set out in the following section of these reasons.
Deregistration of premises: r 125(1)
Rule 125(1) provides:
A retailer or distributor may only deregister a customer’s premises in the circumstances permitted under this rule 125.
One circumstance where deregistration may occur is for failure to provide medical confirmation, in which case the deregistration by a retailer is subject to the requirements stated in r 125(4), extracted as follows:
Where a customer, whose premises have been registered by a retailer under subrule 124(1)(a) (and subrule 124(2) does not apply), fails to provide medical confirmation, the retailer may deregister the customer’s premises only when:
(a) the retailer has complied with the requirements under rule 124A;
(b) the retailer has taken reasonable steps to contact the customer in connection with the customer’s failure to provide medical confirmation in one of the following ways:
(i) in person;
(ii) by telephone; or
(iii) by electronic means;
(c) the retailer has provided the customer with a deregistration notice no less than 15 business days from the date of issue of the second confirmation reminder notice issued under subrule 124A(1)(d); and
(d) the customer has not provided medical confirmation before the date for deregistration specified in the deregistration notice.
Subrules 125(4)(a) and (c) make reference to requirements under r 124A. That rule sets out a number of procedural steps which must be taken by a retailer or distributor to remind customers to return completed medical confirmation forms provided under rr 124(1)(b)(i) or 124(4)(b)(i) (as the case may be).
Subrule 125(6) specifies what must be included in a deregistration notice issued by a retailer under r 125(4)(c). Relevantly, a deregistration notice must “specify the date on which the customer’s premises will be deregistered, which must be at least 15 business days from the date of the deregistration notice”.
AER Guidelines: s 273(1) of the NER Law
Section 273 of the NER Law provides:
(1) A regulated entity must establish policies, systems and procedures to enable it to efficiently and effectively monitor its compliance with the requirements of this Law, the National Regulations and the Rules.
(2) The policies, systems and procedures must be established and observed in accordance with the relevant provisions of the AER Compliance Procedures and Guidelines.
The AER Compliance Procedures and Guidelines (AER Guidelines) are made by the AER pursuant to s 281 of the NER Law.
Provisions relevant to relief
Section 44AAG(1) of the CCA provides that the Federal Court may make an order, on application by the AER on behalf of the Commonwealth, declaring that a person is in breach of “a uniform energy law that is applied as a law of the Commonwealth” or “a State/Territory energy law”. A “State/Territory energy law” includes the NER Law and the NER Rules as applied as a law of a State or Territory (see the definitions of “State/Territory energy law” in s 4 of the CCA).
Pursuant to s 44AAG(2)(a) of the CCA, if the Court makes an order declaring a person to be in breach of an energy law, the order may also include “an order that the person pay a civil penalty determined in accordance with the law”. The civil penalty regime applicable to breaches of the NER Law and the NER Rules is contained in the NER Law and the NER Regulations. A “civil penalty provision” is defined as a provision of the NER Law specified in s 4, or a provision of the NER Law or the NER Rules that is prescribed by the NER Regulations to be a civil penalty provision: NER Law s 4(1). Each of rr 124(1)(a), 124(1)(b), 124(1)(c), 124(3)(a), 124B(1)(c), and 125(1) of the NER Rules was at all relevant times a civil penalty provision prescribed by the NER Regulations: NER Regulations cl 6 and Sched 1. Section 273 of the NER Law is not a civil penalty provision.
As stated above, the present proceeding relates to contraventions by Origin which occurred in the relevant period, being between 1 February 2019 and 12 September 2022.
On 29 January 2021, the NER Law was amended to increase the maximum penalties which may be imposed for a contravention of a civil penalty provision, and to introduce a new classification system of Tier 1, Tier 2, and Tier 3 civil penalty provisions: Statutes Amendment (National Energy Laws) (Penalties and Enforcement) Act 2020 (SA). The maximum penalty which may be imposed on Origin for each contravention throughout the relevant period therefore varies depending on whether the contravention occurred before or after 29 January 2021.
For contraventions which occurred between 1 February 2019 and 28 January 2021, the maximum penalty for each breach of a civil penalty provision by a body corporate is $100,000, plus an additional $10,000 for every day during which the breach continued: NER Law (as in force between 20 September 2018 and 28 January 2021) s 2 (definition of “civil penalty”). If a breach of a civil penalty provision consists of a failure to do something that is required to be done, the breach is to be regarded as continuing until the act is done despite the fact that any period by which the act was required to be done has expired or passed: NER Law s 2.
For contraventions which occurred between 29 January 2021 and 12 September 2022, the maximum penalty for each contravention is governed by s 4A of the NER Law, as in effect from 29 January 2021. Rules 124, 124B(1) and 125 of the NER Rules are each classified as a Tier 1 civil penalty provision for the purposes of the new regime and are governed by the maximum penalties set out in s 4A(1)(c) of the NER Law: NER Regulations cl 6 and Sched 1. Section 4A(1)(c)(ii) of the NER Law provides that, for each breach of a Tier 1 civil penalty provision by a body corporate, the maximum penalty which may be imposed is the greater of:
(a)$10 million;
(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, or a related entity of the body corporate, has directly or indirectly obtained — 3 times the value of that benefit; and
(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 immediately preceding the body corporate’s breach of the civil penalty provision.
Orders by agreement
Where, as here, the parties to a proceeding jointly propose a penalty to the Court, the Court is not bound to impose the proposed penalty. The Court asks whether their proposal can be accepted as fixing an appropriate amount and for that purpose the Court must satisfy itself that the submitted penalty is appropriate: Commonwealth v Director, Fair Work Building Industry Inspectorate (2015) 258 CLR 482 (Commonwealth v FWBII) at [48] (French CJ, Kiefel, Bell, Nettle and Gordon JJ) and [68] (Gageler J). It has been accepted as highly desirable for the Court to accept the parties’ proposal if satisfied of the accuracy of the facts before the Court and that the proposed penalty is appropriate. In Commonwealth v FWBII the majority summarised the position as follows:
46.… there is an important public policy involved in promoting predictability of outcome in civil penalty proceedings and that the practice of receiving and, if appropriate, accepting agreed penalty submissions increases the predictability of outcome for regulators and wrongdoers. As was recognised in Allied Mills and authoritatively determined in NW Frozen Foods, such predictability of outcome encourages corporations to acknowledge contraventions, which, in turn, assists in avoiding lengthy and complex litigation and thus tends to free the courts to deal with other matters and to free investigating officers to turn to other areas of investigation that await their attention.
…
58.… Subject to the court being sufficiently persuaded of the accuracy of the parties' agreement as to facts and consequences, and that the penalty which the parties propose in an appropriate remedy in the circumstances thus revealed, it is consistent with principle and … highly desirable in practice for the court to accept the parties' proposal and therefore impose the proposed penalty…
Their Honours went on to observe that a further reason for courts to act upon joint submissions is that specialist regulators, such as the AER, are able to offer informed submissions on matters within their area of expertise (such as the effect of a contravention on the industry and the level of penalty necessary to achieve compliance), such that a regulator’s “stance can be expected to reflect a pragmatic assessment by the authority charged by the legislature with the effective enforcement of the regulatory regime that the public interest is best served by bringing the proceeding to a conclusion on agreed terms as to penalty”: Commonwealth v FWBII at [60] and [109].
In considering whether the agreed and jointly proposed penalty is an appropriate penalty, it is necessary to bear in mind that there is no single appropriate penalty. Rather, there is a permissible range of penalties within which no particular figure can necessarily be said to be more appropriate than another. The permissible range is determined by all the relevant facts and consequences of the contravention and the contravener’s circumstances: Volkswagen Aktiengesellschaft v Australian Competition and Consumer Commission (2021) 284 FCR 24 at [127]. Where the penalty proposed by the parties is within the permissible range, the Court will not depart from the submitted figure “merely because it might otherwise have been disposed to select some other figure”: NW Frozen Foods Pty Ltd v Australian Competition & Consumer Commission (1996) 71 FCR 285 (NW Frozen Foods) at 291, cited with approval in Commonwealth v FWBII at [47].
This general approach to agreed civil regulatory orders is not confined to pecuniary penalties, but applies equally to agreement on other forms of relief, including declarations: see for example Australian Competition and Consumer Commission v Real Estate Institute of Western Australia Inc [1999] FCA 18; 161 ALR 79 at [1], [20]-[21] and [29]; Australian Competition and Consumer Commission v Virgin Mobile Australia Pty Ltd (No 2) [2002] FCA 1548 at [2], [13]-[15] and [18]; Australian Competition and Consumer Commission v Coles Supermarkets Australia Pty Ltd [2014] FCA 1405 (Coles Supermarkets) at [72] and [75].
Approach to determining pecuniary penalties
Overarching approach
The principles applicable to the assessment of the appropriate penalty under civil penalty regimes are well-established. The following is a summary of those principles.
The penalty to be imposed is a penalty that the Court considers appropriate. In Australian Building and Construction Commissioner v Pattinson (2022) 274 CLR 450 (Pattinson) the High Court affirmed that “the purpose of a civil penalty is primarily, if not solely, the promotion of the public interest in compliance … by the deterrence of further contraventions”: at [9] (Kiefel CJ, Gageler, Keane, Gordon, Steward and Gleeson JJ). In other words, the imposition of a civil penalty is an “attempt to put a price on contravention that is sufficiently high to deter repetition by the contravenor and by others who might be tempted to contravene” the relevant legislation, or to make the continuation of noncompliance too expensive to maintain: Trade Practices Commission v CSR Ltd [1990] FCA 762 (TPC v CSR) at [40]; Pattinson at [9].
The quantum of the penalty imposed should be such as to “make clear to the contravenor and the market that the cost of courting a risk of contravention cannot be regarded as an acceptable cost of doing business”: Singtel Optus Pty Ltd v Australian Competition and Consumer Commission [2012] FCAFC 20; (2012) 287 ALR 249 at [62], cited with approval in Australian Competition and Consumer Commission v TPG Internet Pty Ltd (2013) 250 CLR 640 at [64].
Unless otherwise provided by the relevant legislation, the power of a court to impose a civil penalty is not constrained by the criminal law notion of proportionality that a sentence imposed must not be disproportionate to the seriousness of the offending for which the offender is being sentenced: Pattinson at [38]-[43]. However, the penalty should not be oppressively high, and would be oppressive if it were greater than necessary to achieve the objective of deterrence: Australian Competition and Consumer Commission v Leahy Petroleum Pty Ltd (No 2) [2005] FCA 254; 215 ALR 281 at [9]; Pattinson at [40].
The amount of a penalty is to be determined by reference to the conduct of the contravenor: Australian Competition and Consumer Commission v Cement Australia Pty Ltd (2017) 258 FCR 312 (Cement Australia) at [391].
In determining an appropriate penalty, the Court should not adopt an unduly mathematical approach, nor attempt to reach arithmetically a final amount by beginning with some predetermined benchmark and adjusting it by reference to each of the relevant factors. Rather, assessment of penalty involves a process of “instinctive synthesis”, taking into account all factors relevant to the particular case, while also paying due regard to the maximum penalty legislated for each contravention and the totality principle: Australian Competition and Consumer Commission v Telstra (2010) 188 FCR 238 (Telstra) at [250]-[251]; Australian Competition and Consumer Commission v TPG Internet Pty Ltd (No 2) [2012] FCA 629 at [140]; Australian Competition and Consumer Commission v Reckitt Benckiser [2016] FCAFC 181; 340 ALR 25 (Reckitt Benckiser) at [44].
Maximum penalties, course of conduct and the totality principle
The Court may impose a penalty in respect of each act or omission that constitutes a contravention, subject to the maximum penalty which is stated to apply to each act or omission. In considering the sufficiency of a proposed civil penalty, regard must ordinarily be had to the maximum penalty. The maximum penalty provides a “yardstick”, to be taken and balanced with all other relevant factors: Pattinson at [53]-[54] and Reckitt Benckiser at [156] (see also, in a criminal sentencing context, Markarian v The Queen (2005) 228 CLR 357 at [31], to which both Pattinson and Reckitt Benckiser refer). Care must be taken to ensure that the maximum penalty is not applied mechanically – it instead must be treated as one of a number of relevant factors, albeit an important one: Reckitt Benckiser at [156], cited with approval in Pattinson at [53].
Where, as here, a very large number of contraventions is involved, the theoretical maximum penalty may rise to such a high number that there is in effect no meaningful overall maximum penalty. In such circumstances, the focus should be on the conduct and on determining the penalty necessary to deter that conduct, taking into account all relevant factors: Reckitt Benckiser at [157]. The parties submitted that, in this case, there is no meaningful maximum penalty because the number of individual contraventions is very large. In such cases, the focus should be on the conduct and on determining a penalty to match the conduct, rather than on the maximum penalty provided for in s 4(A)(1)(c)(ii) of the CCA: Reckitt Benckiser at [157].
The “course of conduct” principle may be relevant to the assessment of the appropriate penalty in cases involving multiple contraventions arising from similar facts. Where there is a sufficient relationship between the legal and factual elements of different acts or omissions which would strictly constitute separate contraventions, the Court may, in its discretion, treat those separate acts or omissions as involving a single course of conduct when determining the appropriate penalty: Australian Competition and Consumer Commission v Yazaki Corporation (2018) 262 FCR 243 (Yazaki Corporation) at [234]. Whether multiple contraventions should be treated as a single course of conduct is a question of fact and degree: Construction, Forestry, Mining and Energy Union v Cahill [2010] FCAFC 39; 269 ALR 1 (Cahill) at [39] (Middleton and Gordon JJ), and the application of the principle requires an evaluative judgement in respect of the relevant circumstances: Cement Australia at [425]. The rationale for this principle is, among other things, to ensure that a contravener is not punished multiple times for what is essentially the same conduct: Cahill at [39]-[42].
The course of conduct principle is an analytical tool, and not a fetter on the Court’s discretion when assessing penalty: Australian Competition and Consumer Commission v Hillside (Australia New Media) Pty Ltd trading as Bet365 (No 2) [2016] FCA 698 (Hillside) at [24]-[25], cited with approval in Reckitt Benckiser at [141] and Cement Australia at [425]-[426]. As noted by the Full Court in Yazaki Corporation (at [227]), it is not appropriate or permissible to treat multiple contravening acts or omissions as just one contravention for the purposes of determining the maximum limit dictated by the relevant legislation. Accordingly, the maximum penalty for a single course of conduct is not restricted to the prescribed statutory maximum penalty for any single contravening act or omission: Reckitt Benckiser at [141]; Yazaki Corporation at [229]-[235]. Likewise, there may be cases where the course of conduct principle is of no or limited utility, and it may not be necessary or appropriate to make a finding about whether there was a single course of conduct or multiple courses of conduct: Reckitt Benckiser at [157]; Australian Competition and Consumer Commission v Optus Mobile Pty Ltd [2019] FCA 106 (Optus Mobile) at [44].
The Court must also take into account the effect of any other forms of relief which may be imposed in addition to penalty: Australian Competition and Consumer Commission v Yellow Page Marketing BV (No 2) (2011) 195 FCR 1 at [114]-[115].
Finally, where there are multiple contraventions, the “totality” principle is also applied to ensure that the total sum of penalties imposed for separate contraventions does not result in an overall figure which exceeds what is proper having regard to the totality of the contravening conduct. This requires the Court to conduct a final check at the end of the decision-making exercise to ensure that the aggregate penalty imposed is not unjust or disproportionate in all the circumstances (but having regard to the primacy of deterrence): Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (1997) 145 ALR 36 at 53; Telstra at [228]-[230]; Optus Mobile at [41].
Factors relevant to the quantum of penalty

The discretion to be applied in setting a pecuniary penalty must be guided, first, by the applicable statutory provisions.
Section 294 of the NER Law provides:
Every civil penalty ordered to be paid by a person declared to have breached a provision of this Law, the National Regulations or the Rules must be determined having regard to all relevant matters, including —
(a) the nature and extent of the breach; and
(b) the nature and extent of any loss or damage suffered as a result of the breach; and
(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
(c) the circumstances in which the breach took place; and
(d) whether the person has engaged in any similar conduct and been found to have breached a provision of this Law, the National Regulations or the Rules in respect of that conduct; and
(e) in the case of a regulated entity — whether the person has established, and has complied with, policies, systems and procedures under section 273.
The mandatory factors in s 294 of the NER Law are non-exhaustive, noting that the chapeau to that section states the Court must consider “all relevant matters”.
The matters generally taken into account by courts in assessing civil penalties under the CCA and the Australian Consumer Law are relevant to the assessment of penalties under the NER Law: Australian Energy Regulator v AGL Sales Pty Limited [2020] FCA 1623 at [52] (AER v AGL Sales). Indeed, the non-exhaustive factors set out in s 294 mirror in part the lists of penalty factors which have progressively developed through case law since the introduction of civil penalty regimes in Commonwealth legislation, starting with the nine factors identified by French J in TPG v CSR at [42], being:
1. The nature and extent of the contravening conduct.
2. The amount of loss or damage caused.
3. The circumstances in which the conduct took place.
4. The size of the contravening company.
5. The degree of power it has, as evidenced by its market share and ease of entry into the market.
6. The deliberateness of the contravention and the period over which it extended.
7. Whether the contravention arose out of the conduct of senior management or at a lower level.
8. Whether the company has a corporate culture conducive to compliance with the Act, as evidenced by educational programs and disciplinary or other corrective measures in response to an acknowledged contravention.
9. Whether the company has shown a disposition to co-operate with the authorities responsible for the enforcement of the Act in relation to the contravention.
The “French factors”, as they have subsequently become known, were applied by Anderson J in AER v AGL Sales, a case concerning contraventions of the NER Law. However, as his Honour explained (at [61]):
… Whether or not individual factors constitute “relevant matters” within the meaning of s 294 of the Retail Law will depend upon the circumstances: CEO of AUSTRAC v TAB at [9]. The “French factors” are not “a rigid catalogue or checklist of matters to be applied in each case”: ABCC v CFMEU at [101]. The “overriding principle is that the Court should weigh all relevant circumstances”: ibid. Such factors are “not, and plainly were not intended to be, exhaustive”: ibid.
C. RELEVANT FACTS AND ADMISSIONS
The parties have agreed the following facts, and Origin has made the following admissions, as set out in the SAFA and the parties’ joint submissions dated 13 December 2024.
Background
Origin carries on a business of retailing electricity and gas services to homes and businesses in the various jurisdictions the subject of this proceeding (being South Australia, Queensland, New South Wales and the Australian Capital Territory). As at 15 June 2023, Origin had a total of 41,814 unique customers in those jurisdictions whose premises were registered as requiring life support equipment for the purposes of the NER Rules.
Each of the respondent entities is a wholly owned subsidiary of Origin Energy Limited, the ultimate holding company of the Origin Energy group of companies (Origin Group).
Throughout the relevant period:
(a)Origin Electricity carried on a business of providing electricity services to businesses and homes in South Australia, New South Wales, Queensland, and the Australian Capital Territory;
(b)Origin Retail carried on a business of providing gas services to homes and businesses in South Australia and Queensland; and
(c)Origin LPG carried on a business of providing gas services to homes and businesses in New South Wales and the Australian Capital Territory.
Throughout the relevant period, Origin had in place systems, processes and controls which were intended to ensure its compliance with the Life Support Rules.
Identification and notification of breaches
Pursuant to s 274(1) of the NER Law and to the AER Guidelines, energy retailers are required to self-report breaches or possible breaches of the Life Support Rules no later than two business days after each breach or possible breach is identified by the business (breach reports).
On 7 August 2020 and 16 April 2021, Origin submitted to the AER two breach reports in relation to breaches or possible breaches of the Life Support Rules which are the subject of admitted contraventions in this proceeding.
Following receipt of these breach reports, on 20 April 2021 the AER issued a notice to Origin under s 276 of the NER Law:
(a)noting the AER’s concern about the adequacy of Origin’s systems and processes to manage its compliance with its obligations under the Life Support Rules;
(b)requiring Origin to carry out an independent compliance audit in respect of its compliance with the Life Support Rules and the reporting requirements under the AER Guidelines by 30 July 2021; and
(c)attaching Terms of Reference for the compliance audit which provided for an independent assessment of the adequacy and effectiveness of Origin’s controls in respect of specified rules in the Life Support Rules during the period 1 December 2020 to 31 March 2021.
Origin engaged an independent consulting firm, Protiviti, to conduct the compliance audit required by the s 276 notice (the Protiviti audit).
On 23 August 2021, Protiviti delivered its final audit report to the AER (the Protiviti report). Overall, the auditor’s opinion was that “Origin had not consistently demonstrated compliance” with certain areas in the audit scope, and accordingly they were “unable to assess Origin as ‘Compliant’ with respect to” the relevant provisions of the NER Rules and NER Law and, accordingly, “graded Origin’s overall controls specific to [life support] obligations as Non-Compliant”.
A number of the admitted contraventions the subject of this proceeding were identified in the course of the Protiviti audit or in the course of steps taken by Origin to prepare for the Protiviti audit, or respond to the subsequent Protiviti findings.
Until 28 March 2023, Origin submitted further breach reports relating to breaches of the Life Support Rules (identified by Protiviti or by Origin itself) admitted in this proceeding.
While there were no delays in Origin reporting breaches to the AER once Origin became aware of them, for each category of contravention, there were delays between when the relevant contraventions commenced as a matter of fact and when they were first identified by Origin. The steps Origin took following identification of the breaches are set out later in these reasons.
Admitted contraventions
By the terms of the proposed orders and the SAFA, Origin has admitted contraventions of rr 124(1)(a), 124(1)(b), 124(1)(c), 124(3)(a), 124B(1)(c), and 125(1) of the NER Rules and s 273 of the NER Law throughout the relevant period. These contraventions may be grouped into five broad categories, set out as follows.
Failure to register contraventions
Origin failed to register a total of 127 customers as requiring life support equipment at their premises upon the receipt of life support advice, in contravention of rr 124(1)(a) or 124(3)(a) of the NER Rules (the failure to register contraventions). As a consequence of Origin’s reliance on registration to engage its systems and processes for compliance with rr 124(1)(b) and (c), in most cases, Origin also contravened rr 124(1)(b) and (c) of the NER Rules in respect of the same customers. The failure to register contraventions were variously caused by:
(a)a coding update in one of Origin’s third party agent’s systems, which was not notified to or approved by Origin, and which affected the interoperability between Origin’s systems and the third party’s system;
(b)an error in Origin’s new retail operating system, which was in the process of being phased in, resulting in Origin’s automatic system assessing life support notifications from distributors as invalid due to an error in the telephone number prefixes;
(c)issues relating to the processing of “NSW Life Support Energy Rebate” forms;
(d)failures by Origin’s agents to register a customer as a life support customer for both electricity and gas when the customer advised of a life support requirement for both fuels; and
(e)a number of failures on the part of Origin agents in relation to individual customers.
Failure to notify distributor contraventions
Origin failed to notify distributors of the life support requirements of 17 customers who had provided life support advice, in contravention of r 124(1)(c) of the NER Rules (the failure to notify distributor contraventions). These contraventions arose:
(a)in some cases, due to distributors’ systems automatically rejecting life support notifications sent by Origin where the format of the customer’s address did not match the address listed in the Market Settlement and Transfer Solutions (MSATS) system administered by the Australian Energy Market Operator (AEMO); and
(b)in other cases Origin did not send the notification due to an agent error when processing the customer’s contract.
Deregistration contraventions
Origin deregistered the premises of 4,769 customers as requiring life support equipment other than in the circumstances permitted by r 125 of the NER Rules, in contravention of r 125(1) (the deregistration contraventions). In all cases, Origin deregistered these customers in circumstances where Origin’s third party agent, Accenture, had not first taken reasonable steps to contact the customer regarding their failure to provide medical confirmation in accordance with Origin’s standard operating procedures. With respect to a subset of these customers, there were also failures to comply with other pre-requisites for deregistration under r 125.
De-energisation contraventions
Of the 4,769 customers referred to above whose premises were deregistered, Origin subsequently de-energised the premises of 58 customers requiring life support equipment for non-payment after improperly deregistering their premises, in contravention of r 124B(1)(c) of the NER Rules (the de-energisation contraventions). Origin relied on its systems and processes for registration and deregistration, and its compliance systems assumed that life support customers had been registered as such in its system at the time they entered the de-energisation process. As the customers had been improperly de-registered, Origin’s de-energisation process was followed without the customer being identified as a life support customer.
Monitoring contraventions.
Origin failed to establish policies, systems, and procedures to enable each respondent entity to efficiently and effectively monitor its and its agents’ compliance with the Life Support Rules and to detect the contraventions the subject of this proceeding, and therefore contravened s 273(1) of the NER Law.
Steps taken following identification of breaches
After identifying and reporting the breaches the subject of this proceeding, Origin took urgent steps to rectify the breaches and remediate customers. These steps included:
(a)in respect of the failure to register contraventions, registering impacted customers in most cases within 2 days and rectifying the underlying coding errors within 24 days;
(b)in respect of the failure to notify distributor contraventions:
(i)Origin rectified, within 20 days, the error in Origin’s system resulting from agent error when processing the customer’s contract;
(ii)the MSATS system issue which gave rise to the balance of the failure to notify distributor contraventions was remedied by the AEMO; and
(iii)Origin ensured that a life support notification had been successfully sent to distributors;
(c)in respect of the deregistration contraventions and the de-energisation contraventions, Origin:
(i)immediately re-registered all premises of current Origin customers who had been deregistered since 1 February 2019 through Origin’s third party service provider;
(ii)reviewed each customer’s file to determine whether deregistration had in fact occurred without contact having been made in accordance with r 125(4)(b) of the NER Rules;
(iii)offered goodwill payments to the 4,847 customers whose premises were deregistered in breach of the NER Rules, at a total cost of $688,274 (or an average of $142 per customer);
(iv)implemented changes to monitor compliance by Origin’s third party service provider with Origin’s procedures and to detect any instances of non-compliance promptly; and
(v)rectified system errors in relation to relevant breaches; and
(d)in relation to breaches involving agent errors, where customers were not registered, were invalidly deregistered, or did not receive life support welcome packs due to human error, Origin:
(i)took steps to register, re-register, and/or send welcome packs to impacted customers;
(ii)provided additional coaching to the agents involved in the contraventions; and
(iii)provided extensive refresher training to all agents where relevant.
On 20 June 2024, the AER accepted an enforceable undertaking from each of the Origin respondents as well as additional Origin entities (defined in the enforceable undertaking as the Origin Entities) pursuant to s 288 of the NER Law, by which they undertake to, among other things:
(a)pay $1 million in community based redress, to be shared between one or more organisations which assist sections of the community who may require the protections afforded by the Life Support Rules by providing direct patient care or research into relevant health conditions;
(b)appoint an independent expert, to be approved by the AER, to conduct a review of Origin Entities’ life support controls in Origin’s “Kraken” operating software system and prepare a written report addressing specific questions to be agreed between Origin and the AER;
(c)within 30 business days of receiving the independent expert’s report, provide a copy to the AER, together with a response to each recommendation contained in the report (including the steps Origin proposes to take to implement those recommendations and the proposed timeline for doing so), and:
(i)provide the AER with regular progress reports on the implementation of the recommendations in the independent expert’s report; and
(ii)notify the AER of the completion of the steps taken by Origin to implement the recommendations in the independent expert’s report within five business days of completion; and
(d)notify the AER in writing within five business days of any failure to comply with the timeframes set out in the enforceable undertaking.
D. DECLARATIONS OF CONTRAVENTION
The parties sought an order, under s 44AAG(1) of the CCA, declaring that the Origin respondents are in breach of the provisions of the NER Law and the NER Rules, in accordance with the admitted contraventions.
The parties submitted that the Court’s power to make declarations under s 44AAG(1) of the CCA is discretionary, and referred to the well-known principles concerning the grant of declaratory relief stated in Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421 at 437-438 (Gibbs J) and Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 581-582 (Mason CJ, Dawson, Toohey and Gaudron JJ): that the declaration must be directed to the determination of legal controversies and not to answering abstract or hypothetical questions; that the person seeking the relief has a real interest in raising the question; and that the court’s declaration will have real consequences for the parties.
It is uncontroversial that the foregoing principles are applicable to many proceedings brought by regulatory agencies empowered with enforcing the law. Declarations are frequently sought by regulatory agencies in this Court relying upon the discretionary power conferred by s 21 of the FCA Act or upon a discretionary power conferred by another statute, such as s 163A(3) of the CCA Act.
However, there is reason to doubt whether the foregoing principles are applicable, or apply in the same way, to the power conferred under s 44AAG(1). It can be accepted that the power is expressed in a permissive form. But the making of an order declaring that a person is in breach of a State/Territory energy law is a precondition for the making of an order that the person pay a pecuniary penalty. It is helpful to reproduce subs (1) and (2) of s 44AAG:
44AAG Federal Court may make certain orders
(1) The Federal Court may make an order, on application by the AER on behalf of the Commonwealth, declaring that a person is in breach of:
(a) a uniform energy law that is applied as a law of the Commonwealth; or
(b) a State/Territory energy law.
(2) If the order declares the person to be in breach of such a law, the order may include one or more of the following:
(a) an order that the person pay a civil penalty determined in accordance with the law;
(b) an order that the person cease, within a specified period, the act, activity or practice constituting the breach;
(c) an order that the person take such action, or adopt such practice, as the Court requires for remedying the breach or preventing a recurrence of the breach;
(d) an order that the person implement a specified program for compliance with the law;
(e) an order of a kind prescribed by regulations made under this Act.
It can be seen that the Court’s power to make an order against a person of the kind referred to in subs (2) (which includes an order that the person pay a civil penalty) is conditional upon the Court first making an order under subs (1) declaring that the person is in breach of the law.
In that way, the Court’s function in granting declaratory relief under s 44AAG(1) is similar to its function in granting declaratory relief under Part 9.4B of the Corporations Act 2001 (Cth) (Corporations Act) and Subdiv G of Div 2 of Part 2 of the Australian Securities and Investments Commission Act 2001 (Cth) (ASIC Act), which contain similar provisions. Using Part 9.4B as the illustration, s 1317G stipulates that a court may order a person to pay a pecuniary penalty in relation to the contravention of a civil penalty provision if, amongst other things, a declaration of contravention of the civil penalty provision by the person has been made under s 1317E. Thus, the making of a declaration of contravention is a pre-condition to the imposition of a pecuniary penalty.
In contrast to s 44AAG(1), however, the Court’s power to declare a contravention of a civil penalty provision in Part 9.4B, which is conferred by s 1317E, is expressed in a mandatory rather than a permissive form. Section 1317E(1) stipulates:
If a Court is satisfied that a person has contravened a civil penalty provision, the Court must make a declaration of contravention.

In respect of the equivalent provision in the ASIC Act (s 12GBA(3)), the Full Court observed in Mayfair Wealth Partners Pty Ltd v Australian Securities and Investments Commission (2022) 295 FCR 106 (Mayfair Wealth) (at [184]) that the mandatory language of the section necessarily overrides the discretionary considerations to which a court might otherwise have given weight in declining to make a declaration.
Given the relationship between the grant of declaratory relief under s 44AAG(1) and the imposition of a pecuniary penalty under s 44AAG(2), it is surprising that s 44AAG(1) is not expressed using the mandatory language found in s 1317E(1) of the Corporations Act and s 12GBA(3) of the ASIC Act. Regardless, the relationship between the grant of declaratory relief under s 44AAG(1) and the imposition of a pecuniary penalty under s 44AAG(2) means that the principles that usually govern the grant of declaratory relief will inevitably be satisfied in the case of s 44AAG(1). In circumstances where the AER is also seeking orders for the imposition of a civil penalty, the grant of declaratory relief will be directed to the determination of a legal controversy, the AER will have a real interest in raising the question and the Court’s declaration will have real consequences for the parties.
The contraventions that are the subject of the proposed declarations are established by the facts and admissions agreed in the SAFA and recorded above. It is open to the Court to make declarations based on agreed facts and admissions: see ACCC v Dataline.Net.Au Pty Ltd [2006] FCA 1427; 236 ALR 665 at [57]-[59], endorsed by the Full Court in ACCC v Dataline.Net.Au Pty Ltd (2007) 161 FCR 513 at 537.
In those circumstances, it is appropriate to make the declarations sought by the parties.
E. CIVIL PENALTIES
Nature and extent of the breaches
The parties submitted, and I accept, that there is no evidence that Origin’s contraventions were dishonest or deliberate, or that any person within Origin’s senior management was aware of any of the breaches of the Life Support Rules the subject of this proceeding prior to them being identified and reported to the AER.
Rather, the admitted contraventions occurred as a result of certain system, process or agent errors, or failures in certain detective and preventative controls. These system and agent errors occurred notwithstanding that, at the time the admitted contraventions occurred, Origin had systems, controls and processes in place that were intended to achieve compliance with the Life Support Rules and to detect any instances of non-compliance in a timely manner.
For example, the deregistration contraventions (which account for the vast majority of the admitted contraventions) occurred primarily because one of Origin’s third party agents (Accenture) did not comply with Origin’s Standard Operating Procedures and Training which required Accenture agents to call customers registered for life support before deregistering them. Origin had an obligation to monitor the compliance of such third-party agents with its systems. In this case, Origin did not have sufficient system controls in place to ensure the calls were being made, nor adequate quality assurance processes to promptly detect that Accenture was failing to comply with Origin procedures.
Nonetheless, the parties submitted, and I accept, that the admitted breaches are serious, in terms of number and duration. If life support protections are erroneously withheld from a vulnerable individual who truly needs them, the consequences can include severe damage to health or even death. In total, Origin has admitted to a total of 4,971 separate contraventions of the Life Support Rules, spanning an overall period of more than 2 years and 7 months, from 1 February 2019 to 12 September 2022, although individual contraventions, or groups of contraventions, were confined to narrower periods of time.
While instances of human error are difficult to eliminate completely, the nature of the admitted contraventions are indicative of process and control failures in Origin’s systems for monitoring its compliance with the Life Support Rules.
In many cases, Origin failed to detect problems for extended periods of time. Although the earliest admitted contraventions occurred in early February 2019, those specific contraventions were not identified until 2 July 2021, more than 16 months after the earliest contravention on 14 February 2019.
While the majority of the deregistration contraventions, and some of the failure to register contraventions, relate to acts or omissions on the part of Origin’s third party agents, rather than Origin directly, the responsibility still remained with Origin to monitor the conduct of entities and individuals engaged to act on Origin’s behalf. Origin accepts that regulatory obligations cannot be outsourced and that, even where third parties are engaged, responsibilities as to compliance remain with the retailer.
Loss or damage suffered as a result of the breaches
The parties agree that there is no evidence that any customer was actually harmed as a result of Origin’s breaches of the Life Support Rules in the sense of, for example, suffering injury as a result of disruptions to the power supply for their life support equipment.
Nonetheless, given the nature of the Life Support Rules, Origin’s contraventions necessarily affected vulnerable customers and involved the risk of serious harm. Life support equipment comprises critical equipment relied upon by individuals for their ongoing health and wellbeing. In some circumstances, an interruption of the power supply to a piece of life support equipment may be life threatening.
The parties agreed, and I accept, that Origin’s various breaches of the Life Support Rules had the following consequences.
Failure to register contraventions
By reason of the failure to register contraventions, 127 customers experienced delays in being registered as life support customers, and thereby were delayed in receiving the protections and benefits of the Life Support Rules under Origin’s systems (including protections in relation to de-energisation and information to assist the customer to prepare for both planned and unplanned power interruptions). No customers affected by the failure to register contraventions were disconnected for non-payment prior to their premises being registered by Origin for life support protection.
Of the customer premises affected by the failure to register contraventions, 17 experienced an energy supply outage in the form of an unplanned interruption between the date the customer first provided Origin with life support advice (and therefore ought to have been registered as a life support customer) and the date on which Origin provided them with a life support customer welcome pack containing information to assist the customer to prepare a plan of action in the case of such unplanned interruptions, as required by r 124(1)(b)(v).
Failure to notify distributor contraventions
While distributors were required to notify customers of distributor planned interruptions under r 90(1)(a), by reason of the failure to notify distributor contraventions, 17 customers experienced delays in Origin reporting their life support requirements to the relevant distributor, with the result that those customers were delayed in receiving the specific protections and benefits of the Life Support Rules with respect to distributor obligations (including protections for life support customers in relation to more extensive notice and consent requirements for planned interruptions and de-energisation of the customer’s premises by the distributor, and information about planned distributor power interruptions).
Deregistration contraventions
By reason of the deregistration contraventions, the premises of 4,769 customers were invalidly deregistered (that is, taken off the register of customers requiring life support equipment at their premises), with the result that individuals at those premises who required life support equipment were denied the protections and benefits of the Life Support Rules, were exposed to the risk of de-energisation on the basis that Origin’s systems did not recognise the customer as a life support customer to whom special protections in respect of de-energisation applied, and, as a result, were exposed to an increased risk of distress, injury, and/or death resulting from the potential for their energy supply to be disrupted without sufficient warning for the customer to make any necessary arrangements in relation to life support equipment.
However in all cases, the potential for some, but not all, types of possible loss or damage was reduced because customers affected by the deregistration contraventions had previously been registered for life support and the vast majority of those customers had in that context also been sent the welcome packs, two medical confirmation reminder notices and a deregistration notice prior to de-registration, each of which included information about returning the medical confirmation form to remain registered. The failure to make reasonable attempts to contact customers before deregistration deprived customers of reminders to which they were entitled, thereby creating a potential for loss or damage, but it did not deprive them of receiving any information about the registration process.
Additionally, by reason of the welcome pack, most customers had received the information necessary to contact Origin in the event of a de-energisation (for example in the event of a planned or unplanned power interruption). There is no evidence that any customers were in fact harmed as a result of the deregistration contraventions.
De-energisation contraventions
By reason of the de-energisation contraventions, persons requiring life support equipment at the premises of 58 customers who had provided life support advice to Origin were exposed to a serious risk of distress, injury and/or death as a result of the de-energisation of premises which relied upon energy for the ongoing functionality of life support equipment.
However, in all cases, the affected premises had previously been registered for life support equipment and the vast majority of those customers had in that context been sent relevant information in welcome packs and reminder notices. This meant that most customers had been supplied with the necessary information to contact Origin in the event of a de-energisation. Additionally, Origin’s disconnection process required that, prior to taking steps to de-energise a premises for non-payment, further contact attempts (for example, written reminders, SMS, phone calls) were to be made in accordance with Origin’s processes, which may have reduced the potential for serious harm to arise.
There is no evidence that any customers were in fact harmed as a result of the de-energisation contraventions.
As outlined above, once it became aware of the contraventions, Origin acted quickly to rectify the contraventions and remediate affected customers. In this way, the potential for further loss or damage was reduced.
Benefit directly or indirectly obtained from the conduct
There is no evidence that Origin received any benefit directly attributable to the contravening conduct the subject of this proceeding.
Prior contraventions
The respondents have not previously been found by a court to be in breach of the Life Support Rules, or to have engaged in conduct of a similar nature.
The parties note for completeness that, in Australian Energy Regulator v Origin Energy Electricity Ltd [2022] FCA 802 (Origin Energy), Moshinsky J found that the respondents had contravened ss 43(2)(c) and 50(2) the NER Law and r 72(1) of the NER Rules. Those contraventions did not concern the Life Support Rules or conduct similar in nature to the conduct subject of the respondents’ admissions in this proceeding.
Culture of compliance
Section 294(e) of the NER Law specifically identifies “whether the person has established, and has complied with, policies, systems and procedures under section 273” as a mandatory factor to be taken into account in the assessment of penalty. For the purposes of this proceeding, each of the Origin respondents has admitted that, by reason of the process and agent errors which gave rise to the admitted contraventions, it failed to establish policies, systems and procedures to enable it to efficiently and effectively monitor its compliance with the requirements of the NER Law, the NER Regulations and the NER Rules, in contravention of s 273 of the NER Law.
At the time the admitted contraventions occurred, and throughout the relevant period, Origin had systems, controls, and processes in place that were intended to achieve compliance with the Life Support Rules and to detect any instances of non-compliance in a timely manner. Life support was treated as a “material risk” under Origin’s internal governance framework, with each life support obligation mapped to a specific operational control and senior managers assigned to each control. Origin also maintained assurance processes in respect of its compliance obligations more generally, with any findings and incidents identified through this process being reported to Origin’s executive leadership team and board.
Despite the overall design and intention of Origin’s systems, processes and controls, deficiencies in some systems, processes and controls permitted the admitted contraventions to occur. In respect of some individual contraventions, the issue was not detected for a significant period of time.
Following the Protiviti report and Protiviti’s engagement with the AER with respect to the subject matter of this proceeding, Origin has taken steps to improve its life support compliance processes and systems at an estimated cost of over $4 million, as at the end of June 2022. In doing so, Origin sought to address the root causes of the admitted contraventions, and enhance compliance outcomes more generally. Details of these improvements were set out in more detail in the SAFA, but for the purposes of these reasons it suffices to say that the improvements include:
(a)the development and implementation of the Life Support Control Improvement Plan which details the additional preventive and detective controls put in place by Origin;
(b)the development and implementation of Origin’s new Kraken platform which currently has more than 45 preventative controls (designed to ensure compliance) and detective controls (designed to identify any issues) in relation to its life support obligations across Victoria and States covered by the National Energy Customer Framework (being the Australian Capital Territory, New South Wales, Queensland, South Australia and Tasmania); and
(c)a comprehensive improvement plan for managing regulatory compliance within its retail business, including in respect of life support obligations, which is regularly reported to the Origin board.
Cooperation
Origin has cooperated fully with the AER throughout its investigation of the conduct the subject of this proceeding by:
(a)voluntarily providing information, data and documents in response to a number of information requests made by the AER;
(b)engaging with the AER in a constructive and cooperative way, including by proactively approaching the AER in October 2021 to express Origin’s willingness to resolve the AER’s concerns; and
(c)throughout 2022 to 2024, continuing to engage with the AER while its investigation continued, with a view to resolving the AER’s concerns on a co-operative basis.
Origin’s willingness to admit liability and agree to proposed relief with respect to the matters the subject of this proceeding has avoided the need for:
(a)the AER to prepare for, and conduct, a contested hearing in relation to liability or penalty; and
(b)the allocation of the Court’s resources to the management, hearing, and determination of such a trial, thereby achieving substantial savings in time and cost.
As noted above, Origin has also made changes to support and improve its life support processes in order to ensure future compliance with the Life Support Rules.
Further, as previously discussed, Origin has provided an enforceable undertaking to address aspects of the AER’s concerns outside the scope of the proposed orders.
The parties submitted, and I accept, that cooperation of this kind indicates a lesser need for specific deterrence than would be the case with a recalcitrant contravener which has continued to deny, and taken no steps to address, its wrongdoing. Such matters are appropriate to be taken into account to reduce the penalty that might otherwise be required, although not in such a way that undermines a penalty appropriate to securing both specific and general deterrence: see NW Frozen Foods at 291 (Burchett and Kiefel JJ, Carr J agreeing).
Origin’s cooperation with the AER, and its willingness and preparedness to take steps to rectify and remediate its breaches, were taken into account by the parties in reaching agreement as to the proposed penalty.
Whether the contravention arose out of the conduct of senior management
The admitted contraventions occurred as a result of certain system or agent errors, or failures in certain detective and preventative controls, as detailed above. There is no evidence that any person within Origin’s senior management was aware of any of the contraventions the subject of this proceeding prior to the relevant contraventions being identified and reported to the AER.
Size and financial position of contravenors
Origin is a major Australian energy retailer and the Origin Group as a whole operates a substantial business. As at 30 June 2023, the three Origin respondent entities collectively had 2,357,092 residential customer accounts (not including those held by customers in Victoria).
The tables below set out the total revenue and net profit after tax of Origin Electricity and the Origin Group for each financial year between 1 July 2018 and 30 June 2023. The Origin Group does not prepare separate audited financial accounts for Origin Retail or Origin LPG. The figures for Origin Group include revenue generated across Origin’s business, and not only that generated by its Energy Markets business (which includes its Retail business). By way of example, the Origin Group’s business also includes Origin’s integrated gas business, which primarily focuses on the exploration for, and production of, gas.
Origin Electricity: Revenue and Net Profit / Loss ($ million)

FY18/19 FY19/20 FY20/21 FY21/22 FY22/23

Revenue $10,363 $9,062 $8,519 $9,804 $10,609

Net profit/loss after tax $439 $340 ($974) ($2,210) $1,472
Origin Group: Revenue and Net Profit / Loss ($ million)

FY18/19 FY19/20 FY20/21 FY21/22 FY22/23

Revenue $14,727 $13,157 $12,097 $14,461 $16,481

Net profit/loss after tax $1,214 $124 ($2,279) ($1,425) $1,058
Conclusion on the penalty figure

The objective of general deterrence is of greater significance than specific deterrence in this case. Both Origin’s cooperation with the AER to date, as well as steps taken by it to improve its existing compliance systems, give confidence that such large-scale breaches of the Life Support Rules by Origin are unlikely to occur in the future. Nevertheless, Origin’s contraventions were numerous (comprising 4,971 individual counts), wide-ranging, and often long-running. They related to the supply of an essential service to some of the most vulnerable individuals within society. While some contraventions arose from human error, and many arose from errors by Origin’s third party agents, given the number, nature, and duration of Origin’s admitted contraventions in this proceeding, Origin’s contravening conduct cannot be characterised as involving isolated occurrences or as being the product of “a single serious policy failure”: cf Australian Energy Regulator v EnergyAustralia Pty Ltd [2022] FCA 644 at [3]. Rather, viewed as a whole, the contraventions are indicative of serious deficiencies in Origin’s preventative and detective controls and oversight of third party agents. This is supported by Origin’s admitted contraventions of s 273 of the NER Law. While Origin took voluntary steps to remedy its breaches once identified and made significant investments to improve its compliance systems and processes, the circumstances giving rise to the admitted contraventions demonstrate that compliance with the Life Support Rules is not a matter of “set and forget”.

The parties submitted that a focus on the course of conduct principle may be of limited utility in this case. That is because the admitted conduct could logically and reasonably be categorised in a number of ways. For example, the contraventions may be grouped according to the relevant obligation breached, by contravening entity, or by their proximate cause. The parties submitted, and I accept, that in the present case understanding the contraventions as a single course of conduct engaged in across the three respondents collectively better accords with an instinctive synthesis of the reality of the contraventions. That analysis reflects the respondents’ status as wholly owned subsidiaries in one corporate group, which share compliance systems and processes. It also captures the reality that the contraventions in this proceeding had a number of common and overlapping root causes. For example, the de-energisation contraventions affecting a subset of customers were a consequence of the improper de-registration of those customers. It is apparent that these breaches were, for the most part, related to a deficiency in Origin’s processes or systems which failed to detect or prevent the contraventions in this proceeding. In those circumstances, the analysis of the conduct as a single course of conduct occurring across the three respondents better reflects the interrelationship and gravamen of the contravening conduct in this case.
Accordingly, the parties submitted, and I accept, that it would be appropriate for the Court to determine the quantum of penalty as a single aggregate amount applicable to the group and then apportion this amount between the three respondents. This was the approach adopted by Moshinsky J in Origin Energy. In that case, his Honour considered the total of the penalties proposed by the parties and their deterrence value as a whole (at [57]). That total was then allocated between the respondent Origin entities in accordance with the proportion of contraventions for which each entity was responsible (Appendix to the decision, at [34]).
The parties submitted, and I accept, that an aggregate penalty of $12 million is within an appropriate range for the totality of the contravening conduct, to ensure that Origin continues to make the effective monitoring of its compliance processes a priority once it is no longer under the spotlight of enforcement action, and to deter others from failing in their compliance obligations. I consider that an aggregate penalty of $12 million is just and appropriate having regard to the conduct as a whole and does not exhibit the vice of double punishment against which the course of conduct principle protects: Cement Australia at [421]. It also reflects that the proposed penalty comprises but one aspect of the relief agreed between the parties, which includes:
(a)declarations of contravention by each of the three respondents; and
(b)the enforceable undertaking accepted by the AER on 20 June 2024 (which also includes a payment of $1 million in community based redress).
Following the approach adopted by Moshinsky J in Origin Energy, the allocation of the penalty between the three respondents is as follows:
(a)in respect of Origin Electricity, $10,750,000;
(b)in respect of Origin Retail, $260,000; and
(c)in respect of Origin LPG, $990,000.
I accept the parties’ submission that those amounts reflect the proportion of the total contraventions admitted by each respondent, but also the fact that the most serious contraventions, being the deregistration and subsequent de-energisation of life support customers, were committed by Origin Electricity.
F. UNDERTAKING NOT TO SEEK INDEMNITIES
As part of the resolution of the proceeding, each of the Origin respondents proffered an undertaking to the Court not to seek or accept any indemnity or contribution from:
(a)Tili.io Pty Ltd; or
(b)Accenture Australia Pty Ltd,
in relation to the pecuniary penalty imposed on each of them in these proceedings.
A similar undertaking was given by Origin Energy Services Limited and Origin Energy Holdings Pty Limited (who are not parties to this proceeding) in the enforceable undertaking
The undertaking was sought by the AER to ensure that the financial burden of the penalties is not diverted away from Origin to third party service providers whose conduct contributed to the contraventions in this case.
In respect of Tili.io, the agreed facts were that, during the relevant period, it was a third party service provider which Origin engaged, under a Services Agreement dated 1 January 2019, to provide various services to entities within the Origin Group. Those services included: selling electricity and gas plans offered by Origin to retail customers through third party buying groups; collecting and recording information from retail customers who signed up to Origin electricity and/or gas plans, including in relation to life support equipment; and transmitting that information to Origin’s systems. On or around 15 November 2019, Tili.io made changes to its software systems which had the effect that certain customer information transmitted from its systems after this date was not correctly replicated in the Origin systems. Tili.io did not obtain Origin’s consent to, nor notify Origin of, the coding change. The resulting error was not immediately detected by Origin and persisted until around 4 August 2020. The coding change had the consequence that, in spite of the fact that at least 100 customers informed Tili.io that they required life support equipment, Tili.io did not transmit that information to Origin and, therefore, Origin did not register those customers. Origin’s failure to register those customers had a flow-on effect because it caused Origin to contravene other provisions of r 124 about the provision of information and notification of distributors within the required time frame.
With respect to Accenture, the agreed facts were that Accenture acted as an agent of Origin pursuant to a Master Services Agreement between Origin and Accenture dated 28 August 2014. Origin required representatives of Accenture to follow Origin’s standard operating procedures in relation to the deregistration of Life Support Customers in the Origin SAP System. Agents of Accenture utilised the Origin SAP System for the purposes of carrying out the steps relating to the deregistration of Life Support Customers. As stated previously, the deregistration contraventions (which account for the vast majority of the admitted contraventions) consisted of Origin deregistering the premises of 4,769 customers as requiring life support equipment other than in the circumstances permitted by r 125 of the NER Rules, in contravention of r 125(1). In all cases, Origin deregistered these customers in circumstances where Origin’s agent, Accenture, had not first taken reasonable steps to contact the customer regarding their failure to provide medical confirmation in accordance with Origin’s standard operating procedures and training, which required Accenture agents to call customers registered for life support before deregistering them. With respect to a subset of these customers, there were also failures to comply with other pre-requisites for deregistration under r 125.
A question arises whether it is appropriate that the undertakings given by Origin be accepted by the Court. The undertakings have the effect of immunising Tili.io and Accenture from liability for their defective performance of their contractual obligations, which might be regarded as inimical to the public interest. I accept the parties’ submissions, however, that the failures of Origin’s service providers are not a defence to Origin’s contraventions and it remained Origin’s statutory responsibility to monitor and ensure the compliance of such service providers with Origin’s systems. The objective of imposing the penalties on Origin is to ensure that Origin complies with its statutory obligations in the future, including by ensuring that its service providers properly perform their contractual obligations. Although the undertaking was sought by the AER, it was nevertheless voluntarily proffered by Origin to resolve the proceeding and ensures that the “sting” or burden of the penalties is preserved, by prohibiting a pass-through of liability to third parties: cf Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2018) 262 CLR 157 at [113] and [126] (Keane, Nettle and Gordon JJ). In those circumstances, the Court has accepted the undertaking proffered by the Origin respondents.
G. COSTS
The parties jointly submitted that the following order be made in respect of costs:
Pursuant to s 43 of the Federal Court of Australia Act 1976 (Cth), the Respondents shall pay a contribution to the Applicant’s costs to a maximum sum of $175,000.
As I conveyed to the parties during the hearing, the expression of this proposed order is unduly vague, in the sense that it does not specify the precise sum that is payable by the respondents. The proposed order does not stipulate whether it provides for, for example: indemnity costs up to a maximum of $175,000, or party and party costs up to that figure. This creates uncertainty as to how the precise amount payable will actually be calculated – that is, through taxation, or through some other means.
The parties subsequently agreed that the order should be expressed such that the respondents pay a contribution to the applicant’s costs in the sum of $175,000. An order in that form was made.

I certify that the preceding one hundred and thirty-six (136) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice O'Bryan.
Associate:
Dated: 17 February 2025

File number(s):	VID 606 of 2024
Judgment of:	O'BRYAN J
Date of judgment:	18 December 2024
Date of publication of reasons:	17 February 2025
Catchwords:	CONSUMER LAW – supply of energy to households which require life support equipment – where the respondents admitted contravening rr 124(1)(a)-(c), 124(3)(a), 125(1) and 124B(1)(c) of the National Energy Retail Rules and s 273 of the National Energy Retail Law –where the applicant and the respondents agreed to proposed declarations of contravention and civil penalties totalling $12 million – whether proposed penalties appropriate
Legislation:	Australian Securities and Investments Commission Act 2001 (Cth) Competition and Consumer Act 2010 (Cth) ss 44AAG(1), 44AAG(2)(a) Corporations Act 2001 (Cth) Evidence Act 1995 (Cth) s 191 Federal Court of Australia Act 1976 (Cth) s 43 National Energy Retail Law ss 4A(1)(c)(ii), 273 National Energy Retail Rules rr 124(1)(a)-(c), 124(3)(a), 124B(1)(c), 125(1) National Energy Retail Law Act 2012 (ACT) National Energy Retail Law (Adoption) Act 2012 (NSW) National Energy Retail Law (Queensland) Act 2014 (Qld) National Energy Retail Law (South Australia) Act 2011 (SA)
Cases cited:	ACCC v Dataline.Net.Au Pty Ltd [2006] FCA 1427 Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2018) 262 CLR 157 Australian Building and Construction Commissioner v Pattinson (2022) 274 CLR 450 Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (1997) 145 ALR 36 Australian Competition and Consumer Commission v Cement Australia Pty Ltd (2017) 258 FCR 312 Australian Competition and Consumer Commission v Coles Supermarkets Australia Pty Ltd [2014] FCA 1405 Australian Competition and Consumer Commission v Hillside (Australia New Media) Pty Ltd trading as Bet365 (No 2) [2016] FCA 698 Australian Competition and Consumer Commission v Leahy Petroleum Pty Ltd (No 2) [2005] FCA 254 Australian Competition and Consumer Commission v Optus Mobile Pty Ltd [2019] FCA 106 Australian Competition and Consumer Commission v Real Estate Institute of Western Australia Inc [1999] FCA 18 Australian Competition and Consumer Commission v Reckitt Benckiser [2016] FCAFC 181 Australian Competition and Consumer Commission v Telstra (2010) 188 FCR 238 Australian Competition and Consumer Commission v TPG Internet Pty Ltd (2013) 250 CLR 640 Australian Competition and Consumer Commission v TPG Internet Pty Ltd (No 2) [2012] FCA 629 Australian Competition and Consumer Commission v Virgin Mobile Australia Pty Ltd (No 2) [2002] FCA 1548 Australian Competition and Consumer Commission v Yazaki Corporation (2018) 262 FCR 243 Australian Competition and Consumer Commission v Yellow Page Marketing BV (No 2) (2011) 195 FCR 1 Australian Energy Regulator v AGL Sales Pty Limited [2020] FCA 1623 Australian Energy Regulator v EnergyAustralia Pty Ltd [2022] FCA 644 Commonwealth v Director, Fair Work Building Industry Inspectorate (2015) 258 CLR 482 Construction, Forestry, Mining and Energy Union v Cahill [2010] FCAFC 39 Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421 Markarian v The Queen (2005) 228 CLR 357 Mayfair Wealth Partners Pty Ltd v Australian Securities and Investments Commission (2022) 295 FCR 106 NW Frozen Foods Pty Ltd v Australian Competition & Consumer Commission (1996) 71 FCR 285 Singtel Optus Pty Ltd v Australian Competition and Consumer Commission [2012] FCAFC 20 Trade Practices Commission v CSR Ltd [1990] FCA 762 Volkswagen Aktiengesellschaft v Australian Competition and Consumer Commission (2021) 284 FCR 24
Division:	General Division
Registry:	Victoria
National Practice Area:	Commercial and Corporations
Sub-area:	Regulator and Consumer Protection
Number of paragraphs:	136
Date of hearing:	18 December 2024
Counsel for the Applicant:	A McClelland KC with S McLeod
Solicitors for the Applicant:	Australian Government Solicitor
Counsel for the Respondents:	F Gordon KC with A Poukchanski
Solicitors for the Respondents:	Allens

ORDER MADE BY:	O'BRYAN J
DATE OF ORDER:	18 DECEMBER 2024

FY18/19	FY19/20	FY20/21	FY21/22	FY22/23
Revenue	$10,363	$9,062	$8,519	$9,804	$10,609
Net profit/loss after tax	$439	$340	($974)	($2,210)	$1,472