Competition and Consumer Amendment (AER Functions) Regulations 2020

Administered by Department of the Treasury

Legislation au F2020L01606 Regulations Not in force Legislative Instrument

Legislation content

EXPLANATORY STATEMENT

Issued by authority of the Treasurer

Competition and Consumer Act 2010

Competition and Consumer Amendment (AER Functions) Regulations 2020

The Competition and Consumer Act 2010 (the CC Act) establishes a regime to regulate Consumer Data Rights across sectors of the Australian economy (the CDR regime).

The CC Act provides that the “CDR provisions” apply to bodies established under a law of the Commonwealth (section 56AR(1)(c)). The Australian Energy Regulator (AER) is such a body, being established under section 44AE of the CC Act. The “CDR provisions” are defined as including specified provisions of the CC Act and the Competition and Consumer Regulations 2010 (the CC Regulations) and provisions of the Consumer Data Right Rules (CDR rules). These provisions mean that government entities established by the Commonwealth may be “accredited data recipients”, “data holders”, or “designated gateways” under the CDR regime.

Section 172(1) of the CC Act provides that the Governor-General may make regulations, not inconsistent with the Act, prescribing all matters that are required or permitted by the Act to be prescribed or that are necessary or convenient to be prescribed for carrying out or giving effect to the Act.

Section 44AH(1)(b) of the CC Act provides that the AER has any functions prescribed by regulations made under the Act. To date, the only functions conferred on the AER under this provision are in regulation 7AA of the CC Regulations and do not relate to functions under the CDR regime.

The AER is currently a data holder by virtue of section 56AJ of the CC Act, and section 12 of the Consumer Data Right (Energy Sector) Designation 2020 (the Energy Designation). Accordingly, provisions of the CDR rules that apply to data holders will apply, in accordance with their terms, to the AER. However, because the CDR rules do not currently impose any obligations, or confer any rights on the AER as a data holder, it is not clear that the AER’s functions extend to it being able to undertake actions to ensure that it will be ready to comply with CDR rules that impose obligations, and confer rights on it in the future.

The purpose of the Competition and Consumer Amendment (AER Functions) Regulations 2020 (the Regulations) is to confer additional functions on the AER, as a designated data holder under the CDR regime, to ensure its functions and powers extend to undertaking all work necessary to fulfil its obligations as such a data holder.

The Regulations make a minor, technical amendment to the CC Regulations to give effect to the AER’s role as a data holder by virtue of the Energy Designation.

Public consultation on the Energy Designation took place from 6 May 2020 to 31 May 2020, during which period, 19 submissions were received. The stakeholder feedback was considered in the finalisation of the Energy Designation. No additional consultation was necessary in relation to the Regulations because the consultation on the Energy Designation addressed the issues around the designation of the AER as a data holder under the CDR regime.

Details of the Regulations are set out in Attachment A.

The Regulations are a legislative instrument for the purposes of the Legislation Act 2003.

The Regulations commenced on the day after they were registered on the Federal Register of Legislation.

A statement of Compatibility with Human Rights is at Attachment B.

ATTACHMENT A

Details of the Competition and Consumer Amendment (AER Functions) Regulations 2020

Section 1 – Name

Section 1 provides that the name of the Regulations is the Competition and Consumer Amendment (AER Functions) Regulations 2020 (the Regulations).

Section 2 – Commencement

Section 2 provides that the Regulations commence on the day after the instrument was registered on the Federal Register of Legislation.

Section 3 – Authority

Section 3 provides that the Regulations are made under the Competition and Consumer Act 2010.

Section 4 – Schedules

Section 4 provides that each instrument that is specified in a Schedule to this instrument is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this instrument has effect according to its terms.

Schedule 1 – Amendments

Item 1 of Schedule 1 amends regulation 7AA of the CC Regulations by adding paragraph (c) at the end of the regulation, which provides that the AER has such functions as are necessary to enable it to operate as a data holder of CDR data in accordance with the CDR provisions as those provisions apply as described in section 56AR(4) of the CC Act.

 

The effect of this addition is to clarify that the AER has all the functions required to enable it to operate as a data holder of CDR data, including being able to undertake actions to ensure that it will be ready to comply with CDR rules that impose obligations and confer rights on it.

ATTACHMENT B

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Competition and Consumer Amendment (AER Functions) Regulations 2020

This Legislative Instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Overview of the Legislative Instrument

The Legislative Instrument makes a minor, technical amendment to the Competition and Consumer Regulations 2010 needed to confer additional functions on the Australian Energy Regulator, as a designated data holder under the Consumer Data Right regime established under the Competition and Consumer Act 2010, to ensure its functions and powers extend to undertaking all work necessary to fulfil its obligations as such a data holder.

Human rights implications

This Legislative Instrument does not engage any of the applicable rights or freedoms.

Conclusion

This Legislative Instrument is compatible with human rights as it does not raise any human rights issues.

 

 

Overview

The Competition and Consumer Amendment (AER Functions) Regulations 2020 were enacted to address the need for the Australian Energy Regulator (AER) to have the necessary functions to operate as a data holder under the Consumer Data Right (CDR) regime. The AER, established under the Competition and Consumer Act 2010, was designated as a data holder in the energy sector, but it was unclear whether its existing functions covered all necessary actions to comply with future CDR rules. This gap led to the creation of the Regulations, which were designed to clarify and extend the AER's functions, ensuring it could fulfil its obligations as a data holder. These Regulations were made under the authority of the Competition and Consumer Act 2010, and they amend the Competition and Consumer Regulations 2010 to specifically include the functions required for the AER to operate effectively within the CDR regime. The objective of these Regulations is to ensure the AER can undertake all necessary work to meet its future obligations and rights under the CDR rules.

Scope and Application

The Competition and Consumer Amendment (AER Functions) Regulations 2020 apply to the Australian Energy Regulator (AER), a body established under the Commonwealth, by conferring additional functions to enable it to operate as a data holder of Consumer Data Rights (CDR) data in accordance with the relevant provisions of the Competition and Consumer Act 2010. The primary aim of these regulations is to ensure that the AER’s functions and powers extend to undertaking all necessary work to fulfil its obligations as a data holder under the CDR regime. The regulations make a minor technical amendment to the Competition and Consumer Regulations 2010 to clarify that the AER has all the functions required to effectively operate as a data holder, including being able to take actions necessary to comply with any future CDR rules that impose obligations or confer rights on it. The regulations apply nationally across Australia as they are made under the authority of the Competition and Consumer Act 2010, a Commonwealth Act. No specific exclusions, exemptions, or thresholds are outlined in the regulations themselves, but they do extend the application of the Act through subordinate instruments by clarifying the scope of the AER’s functions in the context of the CDR regime.

Key Provisions

The Competition and Consumer Amendment (AER Functions) Regulations 2020 (the Regulations) confer additional functions on the Australian Energy Regulator (AER) to enable it to operate as a data holder under the Consumer Data Right (CDR) regime. Regulation 7AA of the Competition and Consumer Regulations 2010 is amended by adding a new paragraph (c) which specifies that the AER has such functions as are necessary to enable it to operate as a data holder of CDR data in accordance with the CDR provisions as those provisions apply as described in section 56AR(4) of the Competition and Consumer Act 2010 (section 1 of Schedule 1). This amendment ensures that the AER has the functions required to undertake actions necessary to comply with CDR rules that impose obligations and confer rights on it. The Regulations clarify the AER’s role as a data holder under the CDR regime and ensure its functions and powers extend to undertaking all work necessary to fulfil its obligations as such a data holder. The Regulations impose obligations on the AER to ensure it has the requisite functions and powers to operate as a data holder under the CDR regime. This includes the ability to undertake actions necessary to comply with CDR rules that impose obligations and confer rights on it. The AER must ensure it is prepared to meet these obligations and rights by having the necessary functions and powers in place. These obligations are designed to ensure that the AER can effectively manage its role as a data holder and comply with any future requirements under the CDR regime. Breach of the obligations imposed by the Regulations can result in civil or criminal consequences, depending on the nature and severity of the breach. The Competition and Consumer Act 2010 provides for various offences and penalties for non-compliance with its provisions. For example, section 12GA of the Act provides that a person who contravenes certain civil penalty provisions may be liable for a pecuniary penalty of up to $1.1 million for a corporation and $220,000 for an individual. Criminal penalties may also apply for more serious breaches, with maximum penalties including fines of up to $6.6 million for a corporation and $1.32 million for an individual, as well as imprisonment terms. The specific penalties for breach of the Regulations would depend on the nature of the breach and the applicable provisions of the Competition and Consumer Act 2010. The Regulations are compatible with human rights as they do not engage any of the applicable rights or freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011. The Statement of Compatibility with Human Rights prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 concludes that the Legislative Instrument is compatible with human rights as it does not raise any human rights issues. The Regulations are designed to ensure the AER can effectively manage its role as a data holder under the CDR regime, without engaging any human rights considerations.

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Sourced from the Federal Register of Legislation at 26 August 2026. For the latest information on Australian Government law please go to https://www.legislation.gov.au.