Stoney v ACTEWAGL Distribution (Energy and Water)

[2014] ACAT 7

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

STONEY v ACTEWAGL DISTRIBUTION (Energy and Water) [2014] ACAT 7

EW 13/496

Catchwords:             ENERGY AND WATER – complaint about accuracy and security of newly installed electricity meter – replacement of “analogue meter” with “smart meter”: regulatory requirement – application of National Energy Retail Law and National Electricity Law – whether complaint is frivolous and vexatious – Tribunal’s jurisdiction to hear the complaint: Table 172 of the Utilities Act 2000 – whether there was contravention of customer contract - whether new meter is accurate and secure – reasons for variation in meter reading and why the meter is free from “hacking”

Legislation:           ACT Civil and Administrative Act 2008, s 32

Legislation Act 2001, s 139

Utilities Act 2000, ss 172, 176 and 178

Subordinate              

Legislation:National Electricity Rules, s 7.3.1,Table S7.2.3.1

National Energy Retail Regulations (SA), s 5

National Energy Retail Rules (SA) (Version 1, 1 July 2012), r 29

Texts/Papers:        Australian Energy Market Operator (AEMO), Metrology Procedure: Part A National Electricity Market, version 3.0,
31 October 2011
House of Representatives Standing Committee on Communications, Hackers, Fraudsters and Botnets: Tackling the Problem of Cyber Crime: The Report of the Inquiry into Cyber Crime, June 2010

Independent Competition and Regulatory Commission, Final Decision: Review of Metrology Procedures, Report 15 of 2005, December 2005

Pearce DC and Geddes RS, Statutory Interpretation in Australia (LexisNexis Butterworths, 2011)

Website:  align="left">Tribunal:                  Ms L. Beacroft – Member

Date of Orders:  13 February 2014
Date of Reasons for Decision:         13 February 2014

ACT CIVIL AND ADMINISTRATIVE TRIBUNAL                   EW 13/496

BETWEEN:

PHOEBE STONEY

Applicant

AND:

ACTEW DISTRIBUTION LTD ACN 073 025 224 and

JEMENA NETWORKS (ACT) PTY LTD ACN 008 552 663, TRADING AS 'ACTEWAGL DISTRIBUTION’

Respondents

TRIBUNAL:             Ms L. Beacroft – Member

DATE:13 February 2014

ORDER

The Tribunal Orders that:

1. The complaint is dismissed.

………………………………..

Ms. L. Beacroft - Member

REASONS FOR DECISION

1. On 23 April 2013, an application was filed by Ms Phoebe Stoney (the complainant) in the ACT Civil and Administrative Tribunal (the Tribunal) concerning the installation of a new electricity meter at the complainant's residence.  In her initial complaint to the Tribunal[1], the complainant requested that the Tribunal intervene to have the new meter (described in her submissions as a "smart meter") replaced by an "analogue meter ” which was the type of meter that was removed. In a  later submission, she sought a further order that she be able to "engage an independent expert to check my meter"[2].

   [1]  Applicant’s Complaint Form (under the Utilities Act 2000 – S172) dated 23/4/13

   [2]  Applicant’s letter to ACAT, dated 24 June 2013

2. ACTEW Distribution Ltd ACN 073 025 224 and Jemena Networks (ACT) Pty Ltd ACN 008 552 663, both trading in partnership as 'ACTEWAGL Distribution', are the respondents (the respondents). The respondents advised that the replacement of the complainant’s meter was part of an ongoing program of meter upgrades that was required by regulatory requirements and that regulatory requirements prevent the respondents from replacing her new meter with an analogue meter. They contended that the new meter is secure and accurate.

The hearing

1. At the hearing on the 30 October 2013, Ms Stoney appeared for herself and the respondents were represented by Mr Ian Male, Deputy General Counsel, ACTEWAGL.

2. The Tribunal had before it the complainant's initial complaint to the tribunal dated 23 April 2013; her letter raising facts and contentions, dated
   3 September 2013; the respondents' submission raising facts and contentions, dated 2 October 2013; and various supporting attachments and documents filed by both parties including the applicable “Deemed standard connection contract“.

3. During the hearing, 2 documents showing regulatory requirements relevant to the case were presented by Mr Male and accepted as exhibits, namely,
   (Exhibit 1) the final decision about the review of metrology procedures by the Independent Competition and Regulatory Commission(ICRC[3] Decision), and (Exhibit 2) the approved Metrology Procedure: Part A National Electricity Market (AEMO[4] approved Metrology Procedure).

Legislation and the Tribunal's Jurisdiction

[3]Independent Competition and Regulatory Commission, Final Decision: Review of

[4]Australian Energy Market Operator (AEMO), Metrology Procedure: Part A National

Electricity Market, version 3.0, 31 October 2011  (AEMO approved Metrology Procedure)

1. Commencing on 1 July 2012, the National Energy Retail Law (ACT) Act 2012 adopts the National Energy Retail Law (NERL) as set out in a schedule to a South Australian Act[5] as legislation of the ACT. Regulation 5(f) of the NERL Regulations (SA) prescribes the Tribunal as an energy ombudsman for the purposes of NERL. The National Energy Law (Consequential Amendments)
   

   [5]  National Energy Retail Law (South Australia) Act 2011 (SA)

   [6]See National Energy Law (Consequential Amendments) Act 2012

   Act 2012 amended section 172 of the Utilities Act 2000 [6] (the Utilities Act) and provided for the jurisdiction of the Tribunal in relation to contravention of contracts made under the NERL (ACT).

2. The Electricity (National Scheme) Act 1997 provides for the application, as a law of the ACT, of the National Electricity Law (NEL), which is set out in an adopted schedule to the National Electricity (South Australia) Act 1996 (SA).

3. The new meter of concern to the complainant was installed on 28 November 2012, after the commencement in the ACT of the NERL and the NEL. Hence, both laws apply to this matter. Section 172 of the Utilities Act permits a "consumer affected” by a “contravention of a customer connection contract” made under the NERL (among other matters) to apply to the Tribunal.

4. The Australian Energy Market Operator (AEMO) is the regulatory authority responsible for metering procedures and standards, and has policies and audit procedures in place to ensure the integrity of meter testing.

5. The cost of a meter test is regulated by the Australian Energy Regulator. This is currently set at $73.00, ex-GST. Customers requesting a meter test may be charged this amount, but Rule 29 in the National Energy Retail Rules (SA) requires this fee to be refunded if the meter is found to be faulty. 

6. The Tribunal may dismiss a complaint for a range of reasons including “it is otherwise appropriate to do so” (see section 176(1)(a) to (h) Utilities Act), and also may dismiss a matter if “it is frivolous or vexatious (section 32 of the ACT Civil and Administrative Act 2008). Where the Tribunal is satisfied that the respondent has “contravened a customer contract”, it may make a range of orders (see section 178 (2) of the Utilities Act).

7. Key relevant sections of legislation are extracted at the end of these Reasons for Decision.

Meter Terminology

1. In her complaint to the Tribunal, the complainant requested that the Tribunal intervene to have the new meter, described in her submissions as a "smart meter", replaced by an "analogue meter” which is the type she previously had installed.

2. The ICRC decision defines a smart meter as follows[7]:

   Interval meters are electricity meters that allow consumption information to be recorded at half-hourly (for example) intervals. Interval meters differ from the standard accumulation meters currently installed in most ACT premises in that accumulation meters simply measure the volume of electricity used and do not store any information on the time at which the electricity was consumed. Interval meters are sometimes referred to as ‘smart’ meters. Both interval and accumulation meters have the capacity to be read manually (in person) or remotely[8].

   While there appears to be confusion about what constitutes a ‘smart’ meter, in this decision the Commission defines a ‘smart’ meter to be an interval meter with any functionality additional to that of a manually read interval meter. This additional functionality could include providing customers with instantaneous feedback on consumption[9].

   [7] see Exhibit 1

   [8]ICRC Decision, p.2

   [9]ICRC Decision, p.2 footnote 11

3. A smart meter is form of interval meter. An interval meter is a meter that “records interval energy data”[10] (commonly every 30 minutes) and can potentially enable consumers to monitor their use in a more detailed way over time.  Not all interval meters are smart meters as defined in the ICRC Decision in that some are manually read, for e.g. a “Type 5” meter records interval energy data using digital technology but usually needs to be manually read[11]. On the other hand, a more sophisticated interval meter, referred to as a “Type 4” meter in the Procedures[12], may not need to be manually read.

   [10]  AEMO approved Metrology Procedure, p.15

   [11] AEMO approved Metrology Procedure, pp.31-35, section 2.4

   [12] AEMO approved Metrology Procedure, pp.31-35, section 2.4

4. An “analogue meter” is referred to as a “Type 6” meter in the Procedures and is not an interval meter; it records consumption over time on an accumulative basis using mechanical technology[13].

Complainant's Submissions

[13] AEMO approved Metrology Procedure, pp.31-35, section 2.4

1. In her initial complaint, the complainant requested that the Tribunal intervene to have the new meter replaced by an "analogue meter”, which is the type she previously had installed. In her submissions she raised that she had advised ACTEWAGL prior to the replacement of the old meter that she wanted to “opt” out of the installation of a “smart meter”. She explained, in her submissions, that this was due to her concerns about the security against "hacking" of “smart meters”[14]. Once installed she had concerns about the new meter’s accuracy. On this basis, the complainant contended that the respondents contravened their contract with her. She sought a further order at the hearing that she be able to "engage an independent expert to check my meter "[15].

Respondents’ Submissions

[14]  Applicant’s letter to ACAT, dated 24 June 2013, p.2

[15]  Applicant’s letter to ACAT, dated 3 September 2013

1. The respondents contended that the new meter was installed as part of an ongoing staged upgrade of meters throughout the ACT, consistent with a 2005 ICRC Decision referred to earlier (ICRC Decision). The ICRC Decision required interval meters to be introduced for new premises or when replacing meters, since they allow better management of energy demand and use by energy providers and customers and promote competition. The ICRC decision was made in the lead up to the ACT transferring retail and distribution regulatory functions (except retail pricing) and national rulemaking to new national bodies from 2007 onwards.  

2. The respondents contended that the new procedures and rules in operation under the new national regulatory arrangements continued to support the replacement of the analogue meter with the new meter. Further, they could not legally now replace the complainant’s new meter (referred to as a “Type 5” meter by the respondents) with an analogue meter (referred to as a “Type 6 meter” by the respondents). The current AEMO approved Metrology Procedure requires the respondents to “ensure that a type 4 or type 5 metering installation [i.e. interval rather than accumulative meter] is not replaced by a type 6 installation [i.e. accumulative meters]”[16].

   [16]  AEMO approved Metrology Procedure, pp.40-41, section 2.6.1

3. The respondents contended that the complainant could avail herself of the usual procedure for consumers to obtain a meter check undertaken by the respondents. They contended that independent meter testing is not required given the onerous legal responsibilities to maintain accurate and secure meters under the NERL placed on ACTEWAGL Distribution. Also independent meter testing is practically difficult in the ACT since ACTEWAGL Distribution, which is separate legally to ACTEW Retail Ltd, undertakes all the meter testing for the latter’s customers.

4. The respondents contended, given the complainant’s refusal to obtain a meter check using the usual procedure, that the complainant was not a person who could claim to be “affected by contravention” of a contract (under section 172 of the Utilities Act). On this basis, the respondents contended that the Tribunal had no jurisdiction and should dismiss the complaint due to the absence of jurisdiction (s176 (1) (a) of the Utilities Act). Alternatively the Tribunal should find it “otherwise appropriate” to dismiss the complaint (see section 176(1) (h) of the Utilities Act), or find that there has been no contravention of a customer contract (under section 178 of the Utilities Act).

Structure of the Reasons for Decision

1. The decision begins with a consideration of the jurisdictional issue raised by the respondents. Then the following issues are considered: whether the complainant was entitled to “opt” out of the replacement of her meter as she had requested; whether ACTEW Distribution should, or indeed legally is allowed to, replace the new meter with an older style analogue meter; whether the new meter is accurate and secure; and whether independent testing of the meter is required.

Jurisdiction issues

1. The respondents contended that the complainant was not able to show that she was “affected by contravention” of a contract given her lack of evidence about the state of the new meter. Therefore, the respondents contended that the Tribunal has no jurisdiction in this case.

2. Interpreting the meaning of statutory provisions involves understanding the ordinary and natural meaning of the words used, complemented by an understanding of the purpose of the provision and of the Act [17]as a whole.

   [17]Pearce DC and Geddes RS, Statutory Interpretation in Australia (LexisNexis Butterworths

   2011); s139 Legislation Act (ACT) 2001

3. If the Tribunal’s jurisdiction under Item 1 of Table 172 (in section172) was interpreted to mean that only consumers who are actually affected by a contravention of a contract can complain to the Tribunal, then this would undermine the purpose of Part 12 (Complaints to the Tribunal about utilities) of the Utilities Act and the NERL (ACT)) - which is in part to protect the rights of consumer complainants. Indeed, the result of such an interpretation would be absurd in that only successful complaints filed under Item 1 of Table 172 would be within jurisdiction, yet in order to establish which ones are within its jurisdiction the Tribunal would have to proceed with the assessment of the merits of the complaint in any case.

4. The refusal of the complainant to obtain the usual meter check results in an issue about how the complainant in this case proves her complaint. This issue of evidence needs to be distinguished from the question of whether the complaint is within the jurisdiction of the Tribunal under Item 1 of Table 172 of the Utilities Act.

5. I find that the complaint is within jurisdiction since it is about a contravention of a customer contract and the complainant is the person affected if such a contravention has occurred.

6. The respondents contended in the alternative that the Tribunal should dismiss the application since it is “otherwise appropriate to do so”, due to the lack of evidence provided by the complainant given the usual meter check has not been requested by her. This might be a relevant argument in cases where the usual test has not been requested and the complainant has not provided any reasonable explanation for this omission. However, in this case the complainant submitted that she finds herself unable to rely on a meter check undertaken by ACTEWAGL. In her circumstances, she seeks a test by someone “who didn’t have a vested interest”[18], an independent technical person, because the complainant is a “bit skeptical about… what they [ACTEWAGL] say”[19]. She made it clear that it would not meet her requirements if she observed the test undertaken by ACTEWAGL Distribution since she is not technically able to ensure it is done appropriately[20]. Also, it was noted at the hearing that she cannot engage someone other than that entity recommended by ACTEWAGL to undertake the test since ACTEWAGL Distribution owns the meter and it is illegal for an unauthorized person to interfere with it[21].

   [18]  Transcript, 30/10/2013, p.55.26-27

   [19]  Transcript, 30/10/2013, p.29.24-27

   [20]  Transcript, 30/10/2013, p.55.38

   [21]  Transcript, 30/10/2013, p.56

7. The Tribunal notes that customer-requested independent checks of meters (special meter checks) are advertised by some energy entities as available in some circumstances for example, the Power and Water Corporation NT. This supports the view that such a request is not necessarily unreasonable[22]. The Tribunal therefore declines to dismiss the complaint on the basis that the usual meter check has not been undertaken. The Tribunal further declines to find that the complaint is frivolous or vexatious under section 32 of the ACAT Act.

Did the complainant have to agree to have a “smart meter” installed?

[22]  Website: 

1. I accept that the complainant advised ACTWEWAGL prior to the replacement that she did not want the new meter if it was a “smart meter”.

2. I find that the Distributor was entitled to replace the analogue meter with the new interval meter. As set out earlier, regulatory procedures and rules in operation under the new national regulatory arrangements support programs by Distributors to replace analogue meters with interval meters of the type that was installed at the complainant’s residence.

3. The respondents submitted at the hearing that the meter installed at the complainant’s residence is an interval meter, Type 5. I accept this evidence[23]. As such it is without any remote communication capacity; that is it is without the “software…or the modem” to communicate and it is therefore read manually, similar to an analogue meter; it is similar to a “digital watch”[24].

   [23]  Transcript, 30/10/2013, p.51.2

   [24]  Transcript, 30/10/2013, p.51.43

4. This being the case, if the definition of “smart meter” set out in paragraph 14 above the complainant does not have a “smart meter” installed at her residence.

Should ACTEWAGL replace the new meter with an analogue meter?

1. I find that the Distributor must not replace the new interval meter with an analogue meter, due to regulatory requirements set out earlier[25].

Is the new meter accurate and secure?

[25]  Metrology Procedures (AEMO), p. 40, Clause 2.6.1.

1. I accept that the meter installed at the complainant’s residence is required to be accurate and secure under the National Electricity Law [26]and as a matter of contract law.

   [26]Section 7.3. 1(a) (2) and (3),  National Electricity Rules

2. Considering accuracy first, the respondents rely on the meter’s compliance with the standards for accuracy testing as required under the relevant law, regulations and standards. The meter’s Conformance Certificate dated 23/3/2011, was provided by the respondents. The relevant regulatory requirements do not require further testing of the meter for some years unless a customer requests a special meter test under the NEL (which did not occur in this case for the reason set out earlier).

3. The respondents contended that the new digital interval meter “is inherently more  accurate” than a mechanical analogue meter, especially one of the age (over 40 years old[27]) that was replaced at the complainant’s residence. On this basis, the complainant’s consumption as measured by the new meter could be in part higher due to it reflecting true usage. The respondents could not provide evidence for this. However, under the NEL, analogue meters are allowed a higher error level than interval meters (including Type 5 meters which was the type installed in this case)[28]. This supports the assertion that compliant interval meters are generally more accurate in recording consumption than compliant analogue meters. An old analogue meter such as the complainant’s would be likely to be more inaccurate than other analogue meters, thus increasing the difference in accuracy as compared with a new interval meter.

   [27]  Transcript, 30/10/2013, pp.14 & 49.

   [28]  National Electricity Rules, Table S7.2.3.1 (Overall Accuracy Requirements of Metering

   Installation Components)

1. In the absence of any special meter test results, the complainant’s evidence about the alleged inaccuracy of the new meter was in summary as follows. The consumption as measured by the new meter does not reflect the changes to behavior and technology she has made since 2012 which would result in a reduction in consumption[29]. She was concerned about the consumption shown in some of the bills following the new meter being installed. I accept that the complainant has made significant changes to try to reduce her consumption of electricity.

   [29]  Transcript, 30/10/2013, p.13

2. However, the complainant acknowledged that some of the consumption history as measured by the previous meter for example, for summer 2012, also raised this issue for her and she had no explanation for why this occurred. She agreed that there must be another explanation other than nature and accuracy of the meter for that trend[30]. Also, she agreed that some of the consumption as measured by the new meter was accurate for example, the most recent consumption for winter 2013 “actually does reflect my decreased use in electricity”[31].

   [30]   Transcript, 30/10/2013, pp.23-24

   [31]   Transcript, 30/10/2013, p.17.27-28

3. I cannot be satisfied that the new meter is inaccurate given the evidence before me.

4. I will now consider the meter’s security. The complainant submitted she was concerned about her new meter being “hacked”. She advised at the hearing that the “idea of hacking” occurred to her due to her experience of phone hacking and also since the consumption recorded in the bills was not consistent with her expected consumption; “[hacking] was something that occurred to me…I wasn’t sure. I didn’t know”[32].

   [32]  Transcript, 30/10/2013, p.52.31-33

5. Hacking is a term used loosely, but for the purposes of these Reasons it refers to the “practice of illegally accessing, controlling or damaging other people’s computer systems”[33]. The new meter, being a Type 5 meter has no communications facilities. It is similar to an analogue meter in this regard and so can only be “hacked” if it is manually inferred with, in which case the seal would be broken. The respondents submitted and the complainant does not dispute, that the seal to the meter is intact. On this basis, I find that the meter has not been “hacked”.

   [33]   House of Representatives Standing Committee on Communications,

6. Finally, I consider the issue of whether an independent test of the meter is required in this case. As set out earlier, the complainant requested an order that an independent technical person test the meter.

7. Under the NEL, a customer can request a special meter test and the cost is regulated by the Australian Energy Regulator. In the ACT, the testing of meters for ACTEWAGL customers is undertaken by ACTEWAGL Distribution, the owner of meters in the ACT that service ACTEW Retail customers. The complainant did not request a special meter test because of her concern that the test would not be independent. ACTEWAGL Distribution is a separate legal entity to ACTEW Retail, in line with the NEL and related regulatory arrangements for national energy reform. However, the separation between the entities is not well understood by consumers and it is not clear what level of separation exists in practice between the entities as regards meter management and testing. In any case, a key aspect of the complainant’s concern about the lack of independence of the meter testing is that the meter will be tested by its owner, ACTEWAGL Distribution.

8. Some energy entities do accommodate such requests in some circumstances. An order by the Tribunal for independent testing may be required in some circumstances. If such an order were to be made, a matter to be considered is the cost and who should pay it, since the cost is not regulated by the Australian Energy Regulator at this time. The cost could be significant, especially if the meter needs to be removed to a laboratory for the testing to occur.   

9. I am not satisfied that the meter is inaccurate or not secure. There is no basis to order an independent test of the meter in this case.

Conclusion

1. Having regard to all of the matters before the Tribunal, the Tribunal concludes that the complaint is within the jurisdiction of the Tribunal under section 172 of the Utilities Act and is not frivolous or vexatious under section 32 of the ACAT Act.

2. Given the regulatory requirements that the respondents are subject to, the Tribunal concludes that the respondents were entitled to replace the analogue meter with the new interval meter and that relevant regulations require that they must not replace the new interval meter with an older style analogue meter.

3. The Tribunal is not satisfied that the meter is inaccurate or not secure.

4. The Tribunal concludes that there is no contravention of a customer contract under section 178 of the Utilities Act.

5. The Tribunal orders that the complaint be dismissed.

6. The Tribunal accepts that the complainant did not request a special meter test because of her concern that it is not independently tested. An order by the Tribunal for independent testing may be required in some circumstances.  However, since the Tribunal is not satisfied that the meter is inaccurate or not secure, there is no basis for such an order in this case.

7. The Tribunal notes that aspects of this case arose from misunderstandings held by the complainant about the capacities of her new meter. Her new meter by some definitions, was not a smart meter. It is more accurately described as a digital interval meter. If more accurate information was provided to consumers who have these meters installed, potential concerns about the new meters might be avoided.

   ………………………………..

   Ms L. Beacroft - Member

Legislative Provisions

Utilities Act 2000

1. ACAT applications

   A person (the complainant) mentioned in table 172, column 2 may apply to the ACAT in relation to a matter (the complaint) mentioned in column 3 in relation to the complainant.

   NoteIf a form is approved under the ACT Civil and Administrative Tribunal Act 2008 for the application, the form must be used.

Table 172ACAT applications

NoteItems 3 to 5 do not apply to NERL retailers (see s 75B).

column 1 item	column 2 complainant	column 3 complaint
1	consumer affected by contravention	contravention of customer contract, or customer retail contract or customer connection contract made under the National Energy Retail Law (ACT), by a utility
2	consumer affected by contravention	contravention of an industry code dealing with utility service standards by a utility
3	consumer	a utility fails to provide a utility service to consumer or withdraws a utility service from consumer, and failure or withdrawal causes substantial hardship, or is likely to cause substantial hardship, to consumer
4	person affected by contravention	contravention of s 51 (Protection of personal information) by a utility
5	person affected by contravention	contravention by a utility of an obligation under this Act in relation to its network operations
6	person affected by act or omission	act or omission of an authorised person for a utility in relation to network operations
7	person on whom charge imposed	capital contribution charge imposed under s 101

1. Dismissal of complaints about utilities

   (1)The ACAT may dismiss a complaint about a utility if satisfied that—

   ...

   (h)it is otherwise appropriate to do so.

Metrology Procedures, Report 15 of 2005, December 2005 (ICRC Decision)

Fraudsters and  
     Botnets: Tackling the Problem of Cyber Crime: The Report of the Inquiry into Cyber Crime, June 2010
,