Competition and Consumer Amendment (Abolition of Limited Merits Review) Act 2017

Overview

The Competition and Consumer Amendment (Abolition of Limited Merits Review) Act 2017 was enacted by the Parliament of Australia to amend the Competition and Consumer Act 2010. This Act aims to address the issue of limited merits review in the energy sector by abolishing such reviews for decisions made by the Australian Energy Regulator (AER) and the Australian Energy Market Commission (AEMC) under state and territory energy laws or local energy instruments. The policy objective of this amendment is to streamline the review process and enhance the efficiency of energy regulation by removing the potential for merits review by state or territory tribunals. The Act applies to decisions made before, on, or after its commencement, except for decisions where a merits review application was made to the AEMC before 21 June 2017. This exception ensures that ongoing review processes are not abruptly halted, maintaining legal certainty for existing cases. The amendment seeks to provide a clear legislative framework that prevents merits review of certain energy decisions, thereby aligning with the overarching goal of efficient and effective energy regulation in Australia.

Scope and Application

The Competition and Consumer Amendment (Abolition of Limited Merits Review) Act 2017 serves to amend the Competition and Consumer Act 2010 by abolishing limited merits review for certain decisions made under State or Territory energy laws and local energy instruments. This Act applies to decisions made by the Australian Energy Regulator (AER) under these energy laws and instruments, prohibiting any merits review of these decisions by any body established under State or Territory laws. The amendment is retrospective, applying to decisions made before, on, or after the commencement of this Act, unless an application for merits review was made before 21 June 2017. However, the Act allows for the amendment to apply to decisions made on the remittal of a matter by the Australian Competition and Consumer Commission (ACCC) if such a decision was subject to the amendment. The scope of this Act extends nationally, impacting the conduct and transactions regulated by energy laws across various states and territories in Australia.

Key Provisions

The Competition and Consumer Amendment (Abolition of Limited Merits Review) Act 2017 amends the Competition and Consumer Act 2010 by abolishing the limited merits review of decisions made by the Australian Energy Regulator (AER) under State and Territory energy laws or local energy instruments. Section 44AI(1) of the Competition and Consumer Act 2010 is altered to exclude such decisions from merits review by any body established under a State or Territory law (subsection 44AI(1)). Additionally, section 44ZZM(1) is amended to limit the application of a State or Territory access regime law or the Australian Energy Market Act 2004 to decisions made under these laws, excluding any purported conferral or imposition of a duty that would require or permit merits review by the Australian Competition and Consumer Commission (ACCC) (subsection 44ZZMAA(1)). These changes apply to decisions made before, on, or after the commencement of the Act, with specific transitional provisions for decisions subject to ongoing merits review. The Act imposes several obligations and requirements on the entities it governs. It mandates that decisions of the AER under State/Territory energy laws or local energy instruments are not subject to merits review by any State or Territory body, regardless of the description of such review (subsection 44AI(1)). Furthermore, it nullifies any purported conferral or imposition of functions, powers, or duties under State/Territory energy laws or the Australian Energy Market Act 2004 that would require or permit merits review by the ACCC, except in cases involving the disclosure of confidential or protected information (subsection 44ZZMAA(1)). These provisions ensure that certain regulatory decisions are not subject to further review processes, streamlining the regulatory framework and potentially reducing administrative burdens. In terms of offences, penalties, or consequences for breach, the Act itself does not explicitly state any criminal or civil penalties for non-compliance with its provisions. However, under the Competition and Consumer Act 2010, breaches of the Act can result in significant civil penalties. For corporations, the maximum penalty for serious or repeated contraventions can be up to $10 million for each offence, while individuals may face fines of up to $250,000 and imprisonment for up to five years. These penalties underscore the importance of adhering to the Act's stipulations regarding the abolition of limited merits review for certain energy-related decisions.