Treasury Laws Amendment (2018 Measures No. 3) Bill 2018

Bills Digest No. 113, 2017–18                                                                                                                                                      

PDF version [825KB]

Laura Sweeney and Paula Pyburne
Law and Bills Digest Section
14 June 2018

Date introduced:  15 February 2018
House:  House of Representatives
Portfolio:  Treasury
Commencement: Sections 1–3 on Royal Assent; Schedules 2 and 3 on the day after Royal Assent; Schedule 1 on the later of 1 July 2018 and the day after Royal Assent

Links: The links to the Bill, its Explanatory Memorandum and second reading speech can be found on the Bill’s home page, or through the Australian Parliament website.
When Bills have been passed and have received Royal Assent, they become Acts, which can be found at the Federal Register of Legislation website.

All hyperlinks in this Bills Digest are correct as at June 2018.

 

Contents

Purpose and structure of the Bill
Committee consideration
Statement of Compatibility with Human Rights
Schedule 1—strengthening penalties
Policy position of non-government parties/independents
Position of major interest groups
Financial implications
Key issues and provisions
Comment
Schedule 2—safe harbour defence
Other provisions
Financial implications

 

Purpose and structure of the Bill

The Treasury Laws Amendment (2018 Measures No. 3) Bill 2018 (the Bill) comprises three Schedules each of which amends the Competition and Consumer Act 2010 (CCA) as follows:

  • Schedule 1 contains amendments to strengthen the penalties that may be imposed under the Australian Consumer Law (which is located in Schedule 2 to the CCA)
  • Schedule 2 establishes a safe harbour for complying with an information standard about free range eggs and
  • Schedule 3 contains amendments the purpose of which are to ensure that confidential supplier information obtained by the Australian Energy Regulator in performing its functions remains confidential under the Commonwealth law.

Structure of this Bills Digest

As the matters covered by each of the Schedules are independent of each other the relevant background, stakeholder comments (where available) and analysis of the provisions are set out under each Schedule number.

Committee consideration

Standing Committee for the Selection of Bills

At its meeting of 21 March 2018, the Senate Standing Committee for the Selection of Bills recommended that the Bill not be referred to a committee.[1]

Senate Standing Committee for the Scrutiny of Bills

The Senate Standing Committee for the Scrutiny of Bills considers that the Bill raises a number of issues including:

  • strict liability offences with significant pecuniary penalties attached
  • reversal of onus of proof.[2]

These are discussed under the relevant Schedule heading below.

Statement of Compatibility with Human Rights

As required under Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the Bill’s compatibility with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of that Act. The Government considers that the Bill is compatible.[3]

Parliamentary Joint Committee on Human Rights

The Parliamentary Joint Committee on Human Rights considers that the Bill does not raise any human rights concerns.[4]

Schedule 1—strengthening penalties

Background

In June 2015, consumer affairs ministers agreed that Consumer Affairs Australia and New Zealand (CAANZ) would conduct a review of the Australian Consumer Law (ACL). Announcing the agreed terms of reference for the review, Minister for Small Business, Bruce Billson said:

The main aim of the review is to assess the law’s impact on protecting consumers and streamlining regulatory requirements for businesses, as well as the effectiveness of the collaborative enforcement model adopted by regulators administering the law.[5]

Mr Billson also stated that the review would ‘formally commence in 2016, incorporating an extensive public consultation process, with a final report to Ministers in early 2017’.[6] Accordingly, CAANZ circulated an issues paper for public comment in March 2016.[7]

Issues paper

Relevant to the amendments in Schedule 1 to the Bill, the issues paper described the framework for the imposition of penalties in the ACL as follows:

The ACL distinguishes between breaches attracting civil penalties and remedies, and offences subject to criminal penalties.

Civil penalties and remedies are court orders, including financial penalties, imposed where a court has found a person has breached certain provisions of the ACL. Courts apply the ‘balance of probabilities’ standard of proof to civil matters. Civil penalties are designed to act as a deterrent to businesses breaching the law, remedy the breach and provide compensation to victims.

Civil penalties may deter businesses with an ongoing presence and reputation, however they may not be enough to deter less scrupulous operators.

The ACL also assigns criminal liability for certain breaches, for example, certain false or misleading business practices. Criminal liability usually arises where the breach is considered serious, either because of the damage caused or because the nature of the conduct warrants a criminal sanction. In such instances, certain matters can be referred to a jurisdiction’s Director of Public Prosecutions who can take action for a suspected breach of a criminal prohibition.[8]

The issues paper sought public comment about whether the amount of existing penalties is sufficient to deter future breaches.[9] In addition it sought opinions about whether the method for calculating the penalty for a breach of the competition law should also be applied to breach of consumer laws.

Under the method [for breaches of competition laws], the penalty takes into account the size of the company and the benefit of the breach, allowing the court to impose:

  • on companies, the greater of:
    • the maximum penalty (of $10,000,000)
    • three times the value of the benefit the company received from the breach, or
    • if the benefit cannot be determined, 10 percent of annual turnover in the preceding 12 months

  • on individuals, $500,000.

These methods seek to give courts greater flexibility in tailoring the financial penalty to the severity of the offence, and ensure that the maximum financial penalty does not erode over time.[10]

Subsequent reports

CAANZ issued an interim report on 14 October 2016 which was able to more clearly define the perceived problems in the operation of the ACL as a whole.[11] According to the Minister for Small Business, Michael McCormack:

The Interim Report draws on feedback from the more than 160 submissions received on the review’s Issues Paper released on 31 March 2016, as well as from face-to-face stakeholder consultations held across Australia, findings from the Australian Consumer Survey 2016 and a study into overseas consumer laws. The report identifies a range of issues and seeks views on potential options for reform.[12]

The final report was published in March 2017. CAANZ concluded that ‘the maximum financial penalties available for a breach or attempted breach of the ACL are insufficient to deter highly profitable non-compliant conduct’.[13] According to CAANZ:

In some cases, the benefits gained from a breach can generate profits greater than the value of the fine imposed. If penalties are too low, traders might be prepared to factor the risk of a low penalty into its pricing structures as a ‘cost of doing business’ rather than a deterrent. Penalties must be sufficiently high that a trader, acting rationally and in its own best interest, would not be prepared to treat the risk of such a penalty as a business cost.[14]

In coming to this view, CAANZ considered, amongst other things, the outcome in the case of Australian Competition and Consumer Commission (ACCC) v Coles Supermarkets Australia Pty Ltd.[15] In that case, Justice Gordon specifically commented:

It is a matter for the Parliament to review whether the maximum available penalty of $1.1 million for each contravention of Pt 2-2 of the ACL by a body corporate is sufficient when a corporation with annual revenue in excess of $22 billion acts unconscionably. The current maximum penalties are arguably inadequate for a corporation the size of Coles.[16]

CAANZ proposed that the maximum financial penalties should be increased.[17] The amendments in Schedule 1 to the Bill respond to this recommendation.

Policy position of non-government parties/independents

At the time of writing this Bills Digest none of the non-government parties or independents had commented on the contents of the Bill.

Position of major interest groups

For increased penalties

There was wide ranging support for an increase in penalties on the grounds that the current maximum financial penalties do not sufficiently deter large corporations from breaching the ACL in circumstances where there is significant financial benefit to be had.[18] In its submission to CAANZ in response to the interim report, the Australian Communications Consumer Action Network (ACCAN) stated it:

... does not believe the current maximum financial penalties are adequate to deter future breaches of the ACL. This is particularly the case in the telecommunications sector, where profits are likely to increase considerably over the next few years with a surge in connected technologies across consumers’ lives.[19]

The Australian Automotive Aftermarket Association indicated its members regularly report that ‘there is a difference between the written material provided at the point of sale and the verbal advice from the dealership’. That being the case, they are in favour of the penalties for misleading information being increased.[20]

Against increased penalties

The SME Business Law Committee of the Law Council of Australia (LCA) opined that the size of the penalties available under the ACL is likely to create over-deterrence in the micro and small business sector and under-deterrence amongst large businesses, particularly listed corporations.[21]

Many small businesses are simply terrified of the size of the maximum penalties available under the ACL, which may result in them avoiding particular activities for fear of breaching the ACL. The fact that small businesses often do not seek preventative legal advice means that the over deterrence effect of the ACL penalties is magnified.[22]

Other submitters to the Review considered that ‘the current maximum penalties are adequate’ and that ‘non-punitive orders, such as requirements to establish compliance programs, undertake staff training and publish correctional advertising, can significantly impact business conduct and reputation—probably more so than a financial penalty’.[23]

The Business Law section of the LCA concurred. It argued that any assessment as to whether the current financial penalties are adequate to deter future breaches should not focus solely on the prescribed maximum penalties for contraventions of the ACL. Rather, ‘the assessment needs to take into account the fact that the payment of a pecuniary penalty is one of a range of tools available to the regulators and the courts’.[24]

The Business Law section of the LCA stated that there are other, non-monetary orders to which companies may be subject for a breach of the ACL and ‘these non-monetary orders, coupled with the ability to levy substantial pecuniary penalties, are sufficient to deter companies from engaging in contravening conduct’.[25]

Financial implications

According to the Explanatory Memorandum to the Bill the financial impact of this measure is an unquantifiable gain over the forward estimates period.[26]

Key issues and provisions

Relevant offences

The amendments in Schedule 1 to the Bill will apply to the offences described in table 1.

Table 1: relevant offences

Provision / amending item

Prohibition

s151; amended by item 3.

Section 29 of the ACL provides that a person must not, in trade or commerce, in connection with the supply of goods or services, make a statement that is false or misleading as to whether the goods or services are of a particular standard, quality, value, grade, composition, style or model or have had a particular history or particular previous use.

Section 151 creates a strict liability offence for a breach of that prohibition.

s152; amended by item 5.

Section 30 of the ACL provides that a person must not make false or misleading representations about the sale of land.

Section 152 creates a strict liability offence for a breach of that prohibition.

s153; amended by item 7.

Section 31 of the ACL provides that a person must not in relation to employment that is to be, or may be offered by the person or by another person, engage in conduct that is liable to mislead persons seeking the employment as to the availability, nature, terms or conditions of the employment or any other matter relating to the employment.

Section 153 creates a strict liability offence for a breach of that prohibition.

s154; amended by item 9.

Section 32 of the ACL provides that a person must not, in trade or commerce, offer any rebate, gift, prize or other free item in relation to a supply or goods or services where the offer is made with the intention of not providing a rebate, gift, prize or other free item or of not providing it as offered.

Section 154 creates strict liability offences for a breach of these prohibitions.

s155; amended by item 11.

Section 33 of the ACL provides that a person must not, in trade or commerce, engage in conduct that is liable to mislead the public as to the nature, the manufacturing process, the characteristics, the suitability for purpose or the quantity of any goods.

Section 155 creates a strict liability offence for a breach of that prohibition.

 

s156; amended by item 13.

Section 34 of the ACL provides that a person must not, in trade or commerce, engage in conduct that is liable to mislead the public as to the nature, the characteristics, the suitability for purpose or the quantity of any services.

Section 156 creates a strict liability offence for a breach of that prohibition.

s157; amended by item 15.

Section 35 of the ACL prohibits bait advertising. This occurs when goods or services are advertised at an attractive price, but when the consumer goes to buy the goods or services they are not available—and the advertiser seeks to switch the consumer to a higher-priced product or service.

Section 157 creates strict liability offences for a breach of that prohibition.

s158; amended by item 17.

Section 36 contains a number of prohibitions on different practices concerning offering goods or services and then not supplying them. It is a contravention:

  • for a person in trade or commerce to accept payment for goods or services it does not attend to supply
  • to accept payment for one type of goods and services when a person intends to supply something different
  • to accept payment for goods or services if when the payment is accepted, there were reasonable grounds of which the person should have been aware, for believing that the goods or services could not be supplied within the time specified before the payment was accepted
  • to not supply goods or services within the time specified when payment was accepted, or if no time were specified within a reasonable time.

Section 158 creates strict liability offences for a breach of these prohibitions.

s159; amended by item 19.

Section 37 of the ACL will be contravened if a person makes a materially false or misleading representation concerning the profitability, risk or other material aspect of a business that is represented as being able to be carried on at or from a person’s home or that requires investment or work by the person.

Section 159 creates strict liability offences for a breach of these prohibitions.

s161; amended by item 21.

Section 39 of the ACL deals with the practice of sending out unsolicited credit or debit cards. A person must not issue or send out a credit or debit card to a person unless that person has requested it in writing, or unless the card is a replacement for a card previously issued as requested by the cardholder.

Section 161 creates strict liability offences for a breach of these prohibitions.

s162; amended by item 23.

Section 40 of the ACL prohibits the following practices unless the person had reasonable cause to believe there was a right to payment:

  • sending consumers goods which were not ordered and then demanding payment
  • service providers, including tradespeople and repairers doing unrequested work, particularly on residences, and then demanding payment from the occupier and
  • sending invoices for unsolicited goods or services without the statement “This is not a bill. You are not required to pay any money” as the most prominent text in the document.[27]

Section 162 creates strict liability offences for a breach of these prohibitions.

s163; amended by item 25.

Similarly, section 43 of the ACL provides that a person must not assert a right to payment from another person of a charge for placing in a publication an entry or advertisement about the other person, their profession, business, trade or occupation unless the person knows, or has reasonable cause to believe, that the other person authorised the placing of the entry or advertisement.

Section 163 creates strict liability offences for a breach of this prohibition.

s164; amended by item 27.

Section 44 of the ACL provides that a person must not participate in a pyramid scheme. Pyramid selling involves a scheme in which those who join the scheme are induced to do so mainly by the prospect that, by inducing others to join, they will earn a payment or derive some other benefit.

Section 164 creates strict liability offences for a breach of this prohibition.

s166; amended by item 29.

Section 48 of the ACL provides that a person must not state, in connection with the promotion or supply of goods or services, an amount that, if paid, would constitute a part of the price unless it also specifies the single price as a single figure, in a prominent way, with at least as much prominence as the part price. If there is a delivery fee also payable that must also be stated, but it does not have to be included in the single price.

Section166 creates a strict liability offence for a breach of this prohibition.

s167; amended by item 31.

Section 49 of the ACL is about referral selling. It will be contravened if the following elements are established:

  • consumers are induced to buy goods or services
  • the inducement is a representation that, if they do so, they will subsequently receive a rebate, commission or other benefit
  • that benefit is for giving the supplier the names of other prospective purchasers, or otherwise assisting the supplier to supply goods or services to other consumers
  • the benefit is contingent on an event occurring after the consumer enters the contract.

Section 167 creates a strict liability offence for a breach of this prohibition.

s168; amended by item 33.

Section 50 of the ACL prohibits a person using physical force, undue harassment, or coercion in connection with either the supply of goods or services to a consumer, or payment by a consumer for goods or services.

Section 168 creates a strict liability offence for a breach of this prohibition.

 

s194; amended by item 35.

Section 106 prohibits the supply of consumer goods that do not comply with an applicable safety standard.

Section 194 creates strict liability offences for a breach of this prohibition.

s195; amended by item 37.

Section 107 prohibits the supply of product-related services that do not comply with an applicable safety standard.

Section 195 creates strict liability offences for a breach of this prohibition.

s197; amended by item 39.

Section 118 of the ACL prohibits supply of consumer goods in relation to which a ban is in place.

Section 197 creates strict liability offences for a breach of this prohibition.

s198; amended by item 41.

Section 119 of the ACL prohibits supply of product-related services in relation to which a ban is in place.

Section 198 creates strict liability offences for a breach of this prohibition.

s199; amended by item 43.

Section 127 of the ACL requires a supplier to whom a recall notice is directed to comply with the notice. It is also a contravention to supply consumer goods of a kind covered by a recall notice, or if a dangerous characteristic has been identified in a notice, supply consumer goods with that defect.

Section 199 creates strict liability offences for a breach of these prohibitions.

s203; amended by item 45.

It is a contravention section 136 of the ACL to manufacture, possess, have control of or supply goods or services, in trade or commerce, without complying with an applicable information standard. This prohibition does not apply to goods intended to be used outside Australia.

Section 203 creates strict liability offences for a breach of these prohibitions.

s204; amended by item 47.

Similarly it is a contravention section 137 of the ACL to supply services in a way that does not comply with an applicable information standard.

Section 204 creates strict liability offences for a breach of these prohibitions.

New penalties for bodies corporate

The amendments in Schedule 1 to the Bill repeal existing penalties for the offences set out in the table above and replace them with increased penalties so that the penalty for an offence committed by a body corporate (under the relevant subsection of the ACL) is punishable on conviction by a fine of not more than the greater of the following:

(a)  $10,000,000[28]

(b)  if the court can determine the value of the benefit that the body corporate, and any body corporate related to the body corporate, have obtained directly or indirectly and that is reasonably attributable to the commission of the offence—three times the value of that benefit[29]

(c)  if the court cannot determine the value of that benefit—10% of the annual turnover of the body corporate during the 12‑month period ending at the end of the month in which the body corporate committed, or began committing, the offence.[30]

In support of these provisions, item 1 of Schedule 1 to the Bill inserts the definition of annual turnover, of a body corporate during a 12‑month period into subsection 2(1) of the ACL. The term means the sum of the values of all the supplies that the body corporate, and any body corporate related to the body corporate, have made, or are likely to make, during the 12‑month period, other than:

  • supplies made from any of those bodies corporate to any other of those bodies corporate
  • supplies that are input taxed
  • supplies that are not for consideration (and are not taxable supplies under section 72‑5 of the A New Tax System (Goods and Services Tax) Act 1999)
  • supplies that are not made in connection with an enterprise that the body corporate carries on or
  • supplies that are not connected with Australia.

Expressions used in this definition that are also used in the A New Tax System (Goods and Services Tax) Act have the same meaning as in that Act.

The new penalties reflect those that apply to contraventions of the competition provisions of the CCA.[31] The definition of annual turnover inserted by item 1 of Schedule 1 reflects the definition of that term in the existing CCA provisions.

New penalties for persons

The amendments in Schedule 1 to the Bill repeal existing penalties for persons other than a body corporate in respect of the same offences. The relevant amendments provide that an offence committed by a person other than a body corporate is punishable on conviction by a fine of not more than $500,000.[32] This is an increase from $220,000.

Importantly, unlike penalties which are expressed as a number of penalty units, the specified amount of the penalty is not subject to periodic increase in line with the consumer price index.[33]

Scrutiny of Bills Committee

The Scrutiny of Bills Committee commented on the increase in penalties for strict liability offences.[34] Of particular concern was that the Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers states that the application of strict liability is only considered appropriate where the relevant offence is punishable by up to 60 penalty units (currently $12,600) for an individual[35]—and the amount payable in this case is considerably more than that.[36]

The Scrutiny of Bills Committee acknowledged that the increased penalties are in response to the CAANZ finding in the Australian Consumer Law review that ‘the maximum financial penalties available for a breach or attempted breach of the ACL are insufficient to deter highly profitable non-compliant conduct’.[37] However, whilst the Committee accepted the comments in the Explanatory Memorandum to the Bill in relation to the magnitude of the penalties, it remained:

... concerned that the Bill proposes to significantly increase the financial penalty imposed in relation to offence where strict liability applies, well beyond the recommended limit in the Guide to Framing Commonwealth Offences ...[38]

Table of pecuniary penalties

Subsection 224(3) sets out, in table form, the maximum pecuniary penalty to be imposed for acts or omissions in respect of various provisions of the ACL. Items 48 and 49 of Schedule 1 to the Bill make consequential amendments to subsection 224(3) to reflect the increased penalties.

Comment

The amendments in Schedule 1 to the Bill increase the maximum penalties payable in respect of many (but not all) offences for a breach of the ACL. The penalties are applied in equivalent terms in order to avoid any uncertainty. Many of the submitters to the CAANZ review were in favour of such a move on the grounds that the current maximum financial penalties are inadequate to deter breaches.

On the other hand some submitters felt that there should be more reliance on the non-monetary penalties that are available to the ACCC.[39]

Schedule 2—safe harbour defence

Background

Under the ACL (and its predecessor law the Trade Practices Act 1974) a person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.[40] In addition, a person must not, in trade or commerce, in connection with the supply of goods, make a statement that is false and misleading as to whether the goods are of a particular standard, quality, value, grade, composition, style or model or have had a particular history or particular previous use.[41]

These prohibitions and the penalties that attach to them are one aspect of the ongoing debate about the regulation of claims that eggs are free range. Another aspect of the debate about what constitutes free range eggs is animal welfare.

Model Code of Practice for the Welfare of Animals

This is reflected in the Model Code of Practice for the Welfare of Animals – Domestic Poultry (Model Code) which was endorsed by Commonwealth, state and territory ministers for primary industry in 2002.[42] The Model Code prescribes minimum standards of care for poultry in relation to a variety of issues, including egg production.[43] It is not legally enforceable,[44] but instead serves as a guide with the intention of ‘helping people involved in the care and management of poultry to adopt standards of husbandry that are acceptable’.[45] Importantly, however, the animal cruelty laws of most jurisdictions provide that compliance with the Code is a defence to, or provides an exemption from, prosecution for cruelty.[46] This means that practices that are in accordance with the Code that might otherwise breach the animal welfare legislation, such as prolonged confinement of chickens in a cage or the maceration of surplus hatchlings, are permitted.[47]

Relevantly, the Model Code sets out a ‘maximum acceptable live weight density’ of 1,500 birds per hectare for layer hens kept outdoors.[48] A note immediately following the density prescription states:

Any higher bird density is acceptable only where regular rotation of birds onto fresh range areas occurs and close management is undertaken which provides some continuing fodder cover.[49]

The density prescription in the Model Code has featured heavily in recent stakeholder comments and submissions about how free range eggs should be defined. Treasury reported that submissions to the Consultation Paper revealed:

... inconsistent interpretations of the Model Code, specifically the recommendations in relation to stocking density for free range layer hens. Some stakeholders (primarily consumer advocacy groups, animal welfare groups and smaller pasture-based egg producers) interpret the Model Code as prescribing a maximum stocking density of 1,500 hens per hectare. Others (notably the larger egg producers and industry associations) note that the section on range rotation means that the Model Code does not specify a maximum outdoor stocking density if certain conditions are met. The latter interpretation has been supported by governments’ primary industry departments.[50]

Review of the Model Code

The Model Code is currently being reviewed. The public consultation period for the new Animal Welfare Standards and Guidelines for Poultry commenced on 27 November 2017 and concluded on 26 February 2018.[51] A report analysing the major submissions received is due to be released in June 2018. The Animal Welfare Task Group will then oversee the development of draft standards for consideration by stakeholders and then Australia’s agricultural ministers.[52]

Some stakeholders considered that the development of a national standard on free range egg labelling should be delayed until the completion of the review,[53] while others considered that a standard should be developed without delay.[54] It is unclear whether the review will lead to any changes to the Australian Consumer Law (Free Range Egg Labelling) Information Standard 2017 (ACL Free Range Egg Information Standard).[55]

Complaints, inquiries and reports

A number of key complaints, cases, inquiries and reports preceded the formal decision by Consumer Affairs Ministers to develop a national information standard on free range egg labelling in 2015. For example, in January 2011, the Food Labelling Law and Policy Review Panel, chaired by Former Australian Health Minister, Dr Neal Blewett, presented the final report of its examination of food labelling law and policy (the Blewett Review).[56] The report concluded that, as a general principle, food labelling for animal welfare issues ‘is best covered by the consumer protection laws’.[57] It recommended:

The relevant livestock industries consider the benefit of establishing agreed standards under the auspices of Standards Australia...for terms related to animal husbandry (e.g., ‘free range’, ‘barn laid’ and ‘caged’ in the case of poultry).[58]

In November 2012, the Australian Competition and Consumer Commission (ACCC) proposed not to approve an application by the Australian Egg Corporation Limited for a Certified Trade Mark (CTM) for a national egg quality assurance program, due to concerns that the ‘proposed standards may mislead or deceive consumers about the nature of eggs described as free range’.[59]

In August 2013, consumer advocacy organisation CHOICE lodged a super complaint with NSW Fair Trading regarding free range egg claims in NSW.[60] CHOICE called on consumer protection authorities to:

... further investigate free-range egg labelling and take enforcement action where there is evidence that claims are likely to mislead consumers – that is, where conditions do not meet consumer expectations and where stocking densities are higher than the model code definition.[61]

As part of its response to CHOICE’s complaint, NSW Fair Trading recommended the Commonwealth, states and territories develop a national information standard under the Australian Consumer Law, which would define ’free-range’ and minimum labelling requirements for product packaging’.[62]

Legal action by the ACCC

Since the commencement of the ACL on 1 January 2011, the ACCC has successfully taken legal action against five Australian egg producers on the grounds that they made false or misleading claims about the free range status of the eggs they supplied.[63] In particular, in its 2014 decision in ACCC v Pirovic [No 2],[64] (Pirovic), the Federal Court identified key factors relevant to determining whether eggs are free range, including the capacity of laying hens ‘to move about freely on an open range on most ordinary days’.[65]

Following the decision in Pirovic, the ACCC wrote to egg suppliers to encourage them to consider reviewing advertising and packaging claims about the free range status of their eggs.[66] Around the same time, the ACCC Chairman told representatives from the egg industry that the ACCC did not see a need for a prescriptive government standard for free range egg producers.[67]

Development of an Information Standard

The Government commenced a round of consultations directed towards the development of an information standard to define the term free range eggs for the purpose of the ACL in 2015.

Consultation paper

The impetus for the process was the June 2015 request by Commonwealth, state and territory Consumer Affairs Ministers for the development of a draft national standard on free range egg labelling.[68] In October of the same year, the Treasury released a Consultation Paper on behalf of the Consumer Affairs Australia New Zealand.[69] The Consultation Paper invited stakeholders to comment on three potential options to enhance consumer confidence and certainty about egg labelling:[70]

  1. maintain the status quo, in which regulators continue to enforce ACL requirements with respect to false and misleading conduct and representations and regulatory tools such as approved certified trademarks, industry codes, regulatory guidances and legislation continue to operate[71]
  2. introduce a basic information standard that prescribes that ‘eggs can only be labelled free range if most birds move about freely on an open range on most ordinary days, consistent with existing [case] law’,[72] with the following possible variations:

(a)   creation of a defence against allegations that eggs were not free range. The defence would not define the meaning of free range, but instead list certain conditions which, if satisfied, would shield producers from allegations that eggs were not free range[73] or

(b)   inclusion of a requirement to disclose stocking density on packaging of eggs labelled free range[74] and

  1. introduce an information standard that requires all egg producers to label their eggs as cage, barn or free range, [75] with two possible variations:

(a)   inclusion of a ‘premium free range’ category which requires producers to satisfy additional animal welfare criteria, including, but not limited to, stocking density[76] or

(b)   inclusion of an ‘access to range’ category, which would refer to circumstances in which hens have access to the outdoors, but may not be outside on most ordinary days. [77]

The consultation period ended in February 2016. Treasury received 149 submissions, 2,043 informal comments via the website and 7,611 emails.[78]

Decision Regulation Impact Statement

In March 2016 the Treasury published the Decision Regulation Impact Statement (Decision RIS).[79] It queried the effectiveness of the case law meaning of free range underpinning the ACL Free Range Egg Standard, on the basis that it requires producers and consumers to stay up-to-date with any changes to the case law definition of free range, ‘which can be expensive and difficult for the average consumer to understand’ and ‘may take some time for a clear definition of free range to be established’.[80]

In response to earlier stakeholder feedback, the Decision RIS outlined four slightly different options:

  1. the status quo – continued enforcement of the ACL’s misleading and deceptive conduction provisions, together with ongoing education campaigns
  2. an information standard for eggs labelled as free range that requires the disclosure of outdoor stocking density and sets a maximum outdoor stocking density of 10,000 birds per hectare
  3. an information standard under the ACL for eggs labelled as free range that provides a definition of ‘free range’ based on birds having meaningful and regular access to an outdoor range, requires the prominent disclosure of outdoor stocking density, and sets a maximum outdoor stocking density of 10,000 birds per hectare or
  4. an information standard that, in addition to setting standards for ‘free range’ and requiring disclosure of outdoor stocking density, as in Option 3, also creates an additional category for the labelling of eggs, ‘open range’, for eggs produced in circumstances with an outdoor stocking density of 1,500 birds per hectare or fewer.[81]

Importantly, in relation to Option 3, the Decision RIS clarified that compliance with the proposed information standard would ‘provide a safe harbour for misleading and deceptive conduct provisions in relation to the free range claim’, but not in relation to other representations.[82]

Exposure draft

On 31 March 2016, Consumer Affairs Ministers agreed to proceed with introduction of a national information standard.[83] Consequently, on 14 November 2016, the Treasury released an Exposure Draft of the Information Standard and Explanatory Statement for a four week consultation period.[84] The Explanatory Statement for the Information Standard notes that a number of issues were clarified by amending the wording of the information standard and accompanying explanatory statement in response to stakeholder feedback.[85]

Stakeholder views

Stakeholders expressed a wide variety of views in response to both the Consultation Paper released by the Treasury in October 2015,[86] and the Exposure Draft of the Information Standard and Explanatory Statement released by the Treasury in November 2016.[87] These views are discussed later in this Bills Digest in relation to the issues common to both the Information Standard and Schedule 2 of the Bill.

Information Standard

The final form of the Australian Consumer Law (Free Range Egg Labelling) Information Standard 2017 was registered on the Federal Register of Legislation on 26 April 2017 and commenced on 26 April 2018.[88]

Legislative basis of the Information Standard

Section 134 of the ACL empowers the Minister to make information standards for goods and services.[89] Information standards require suppliers to provide certain information to consumers about the goods or services they are supplying.[90] Section 135 empowers the Minister to declare by written notice published online that a standard prepared or approved by Standards Australia or an association prescribed by the regulations is an information standard.[91] Section 136 of the ACL prohibits the supply of goods where a supplier has not complied with an information standard.[92] Failure to comply with section 136 of the ACL may result in the imposition of pecuniary penalties or fines of up to $1.1 million for corporations and $220,000 for individuals.[93] In addition, any person who suffers loss or damage as a result of non-compliance with section 136 may recover damages or seek compensation orders.[94] As noted earlier in this Digest, the penalties will be increased by the amendments proposed in Schedule 1 of the Bill.

Importantly, as the Decision RIS notes, ‘as a legislative instrument, an information standard cannot alter primary legislation’.[95] Consequently, the Information Standard alone ‘cannot operate as a safe harbour against provisions of the primary legislation’, such as the prohibitions on ‘misleading or deceptive conduct’ and ‘false and misleading representations’ in the ACL.[96] Amendments to the primary legislation, as proposed by Schedule 2 of this Bill, are therefore necessary to give legal force to the proposed ‘safe harbour’ defence contained in the ACL Free Range Egg Information Standard.

The ACL Free Range Egg Information Standard defines free range eggs and imposes particular labelling and display requirements on eggs represented as free range.

Subsection 7(1) of the Information Standard defines free range eggs as eggs laid by hens that:

(a)   had meaningful and regular access to an outdoor range during daylight hours during the laying cycle[97]

(b)   were able to roam and forage on the outdoor range and

(c)   were subject to a stocking density of 10,000 hens or less per hectare.[98]

Subsection 7(2) provides that in deciding whether a hen had meaningful and regular access to an outdoor range during daylight hours during the laying cycle (as above), the following circumstances are to be disregarded:

  • the hens were undergoing nest box training
  • weather conditions endangered the safety or health of the hens
  • the hens would have been exposed to predators
  • the hens were being medicated or otherwise cared for or
  • there were exceptional circumstances that posed a significant risk to the safety or health of the hens.[99]

In relation to egg labelling, the Information Standard provides that a person must not label packaging for eggs with the words ‘free range’ unless three criteria are satisfied:

(a)   the eggs are free range

(b)   the words ‘free range’ are used in relation to the eggs and

(c)   the stocking density is prominently displayed on the packaging.[100]

The Information Standard imposes similar criteria for the display of eggs for sale without packaging. A person must not represent the eggs as free range unless the eggs are free range and the display has a ‘prominently displayed’ sign, which contains the words ‘free range’ and ‘prominently displays the stocking density’.[101] In addition, the display of free range eggs must be ‘separate from the display of other eggs, so that a person at or near the displays can reasonably distinguish between’ the free range eggs and other eggs.[102]

Guidance material

On 6 February 2018, the ACCC published an updated enforcement guidance (the Guidance), which explains the new Information Standard and the broader obligations on suppliers under the ACL regarding free range egg representations. [103] The Guidance notes that ‘the Government intends to introduce a safe harbour defence for egg producers that comply with the standard’.[104] The ACCC has confirmed that the Guidance will be updated with further information about the standard once the defence is enacted.[105]

The Bill

The Information Standard has commenced. The Bill does not alter the definition of free range eggs which is contained in the Information Standard. Rather, the provisions in Schedule 2 to the Bill amend the ACL to enact the promised safe harbour defence.

Position of major interest groups

Given the time taken to develop the Information Standard and the extensive consultation which occurred, it is unsurprising that there are broad views about what should, or should not, be described as a free range egg. Although the definition is not the subject of the Bill, the positions of stakeholders are set out below, as the Bill deals with giving legal force to the proposed ‘safe harbour’ defence in relation to claims regarding ‘free range’ eggs.

Animal health and welfare organisations

In its submission to the 2015 Consultation Paper, Animal Health Australia considered that ‘a large range in stocking rates and colony size within the definition of free range should be permitted and egg producers given the option to state their bird stocking rate on the package if desired’, because ‘none of the stocking rates proposed in the options will make a difference to the birds’ ability to exercise.’[106] During the same consultation, the Animal Law Institute submitted that:

... it is inappropriate for the information standard to adopt a definition of free range that does not, as a minimum, reflect the test in the Pirovic case, which requires that “most hens are able to, and actually do, move about freely on an open range on most ordinary days”. However, ALI recommends that the definition of free range be expanded so that it better reflects the minimum husbandry practices that a majority of consumers expect to be followed in the production of eggs labelled as free range.[107]

Animals Australia supported the definition of free range proposed by the Consultation Paper,[108] with the addition of a maximum outdoor stocking density of 1,500 hens per hectare or 2,500 hens per hectare ‘if the hens are rotated into other paddocks and pasture cover is maintained’.[109]

The Australian Veterinary Association (AVA) emphasised the need to ensure that ‘any definition of free range or associated labelling will accurately convey the conditions under which layer hens are being farmed’.[110] The AVA submitted that the definition should refer to a number of criteria in addition to stocking density and the outdoor range area, including:

  • number and size of popholes, and ease of access to these from within the shed
  • duration of time that popholes are opened each day
  • conditions outside the shed and whether these are conducive to dispersal of hens
  • provision of shelter and hedges or wall-like structures to encourage birds to disperse and
  • conditions of the range, including whether the ground is muddy or dry, or covered with vegetation.[111]

In response to the 2015 Consultation Paper the Humane Society International (HSI) recommended the Information Standard incorporate the following definition of free range:

Hens must have a maximum outdoor stocking density of 1,500 birds per hectare, and they must be able to move about freely on an open range on every ordinary day. Practices must be based on the Farm Animal Welfare Council (FAWC) ‘five freedoms’ of animal welfare.[112]

In its subsequent submission to the Exposure Draft of the Information Standard in December 2016, HSI recommended that the reference to meaningful in paragraph 7(1)(a) be defined and the definition of free range be amended in the following way:

Free range eggs are eggs laid by hens that had meaningful and continuous access to an outdoor range during daylight hours across the laying cycle with the provision of adequate shelter and an enriched safe environment. The range area is capable of continued production of vegetation and aggressive behaviour such as feather pecking or cannibalism is eliminated by reducing the stocking density when necessary.[113]

More generally, HSI expressed its ‘severe disappointment’ with the consultation process for the development of the Information Standard.[114]

The RSPCA recommended two major changes to the definition of free range eggs proposed by the Exposure Draft of the Information Standard:

  1. tighten the exceptions to providing meaningful and regular access
  2. expand the considerations of what meaningful and regular access means.[115]

Voiceless, in its submission to the Exposure Draft of the Information Standard, submitted that ‘the consumer expectation of free range is significantly different to the definition offered in the Information Standard’.[116] It recommended that the Information Standard be amended to define free range eggs as:

eggs laid by hens that:

  • were able to, and actually did, move about freely on an open range during daylight hours on most ordinary days; and
  • were subject to an outdoor stocking density of 1,500 hens/ha or less.[117]

In response to the Consultation Paper, World Animal Protection recommended that free range eggs should be defined as eggs:

... produced by hens that have access to outdoor areas during the day, including shade and protection, have access to palatable vegetation for foraging, and at night are kept in sheds or barns [in accordance with specified] conditions.[118]

World Animal Protection also endorsed the following range area specifications in the RSPCA Approved Farming Scheme standards for layer hens:

  • 1,500 birds per ha of outdoor area if there are no rotational range management strategies in place (that is, a fixed outdoor area)
  • 2,500 birds per ha of outdoor area if there are rotational range management strategies in place.[119]

In essence then, it seems that, at the time of the initial consultations, animal health and welfare organisations preferred a definition of free range eggs based on the maximum live weight density in the Model Code.[120] The provisions in section 7 of the Information Standard which allows for stocking rates of 10,000 hens or less per hectare have not delivered what some animal health and welfare organisations sought—the maximum outdoor stocking density of 1,500 hens per hectare or 2,500 hens per hectare ‘if the hens are rotated into other paddocks and pasture cover is maintained’.[121]

Consumer advocacy organisations

In its submission to the Consultation Paper, CHOICE recommended the Information Standard include a definition of free range based on the definition of premium free range outlined in the Consultation Paper,[122] specifically:

  • eggs produced by hens that can, and do, move about freely on an open range on most ordinary days, meaning every day other than when on the open ranges weather conditions endanger the safety or health of the laying hens or predators are present or the laying hens are being medicated
  • the maximum number of hens per hectare of outdoor space is 1,500 hens per hectare or less
  • induced moulting is not employed
  • beak trimming is employed only where other methods of preventing feather pecking have failed.[123]

Later, in response to the Exposure Draft of the Information Standard, CHOICE submitted that the proposed definition of free range eggs:

  • provides no clarity about whether hens actually access the outdoor range
  • allows producers to call their eggs free range even if hens never leave the barn
  • falls short of consumers’ expectations
  • shields producers who engage in misleading or deceptive conductive under the current law from prosecution
  • is inconsistent with the case law and the ACL.[124]

CHOICE made a number of recommendations to address these issues, including a reduction in the maximum stocking density from 10,000 hens per hectare to 1,500 hens per hectare.[125]

Egg producers—larger

Egg Farmers of Australia (EFA) described the definition of free range eggs in the Consultation Paper as ‘unworkable’, because it:

  • seeks to define free range by misrepresentations that have been the subject of enforcement action
  • is based on case law which has not considered, and cannot provide meaningful guidance on the meaning of free range and
  • would significantly distort the competitive process by imposing a definition of free range that the vast majority of free range egg suppliers could not be confident they could meet.[126]

EFA proposed an alternative definition of free range:

... laying hens in free range farming systems:

  • are unconfined within a ventilated hen house;
  • have access to and are free to roam and forage on an outdoor range area during daylight hours in a managed environment; and
  • a maximum outdoor stocking density of one hen per square metre.[127]

The Commercial Egg Producers’ Association of Western Australia and the Queensland United Egg Producers endorsed the definition of free range proposed by EFA in their submissions to the Consultation Paper.[128]

The South Australian Local Egg Section similarly endorsed the EFA’s definition of free range and submitted that ‘there is no conclusive scientific study to support density as being an issue to consumers’.[129] The Egg Section Committee of the New South Wales Farmers Association also endorsed the EFA submission to the Consultation Paper in its response to the Exposure Draft of the Information Standard.[130] In response to the Consultation Paper, the Egg Group of the Victorian Farmers Federation submitted:

... the proposed definition in RIS ignores the history and development of free range egg production systems in Australia, and the economics and competition in the egg industry.[131]

Instead, the Group proposed an alternative definition of free range production systems, which:

  • provides for hens that are not in cages
  • allows hens the ability to move around in their shed
  • allows hens access to an outdoor range during the day and
  • has a stocking density of no more than one hen per square metre.[132]

Egg producers—smaller

In its submission to the Consultation Paper, the Free Range Farmers Association of Victoria recommended the relevant ministers consider the definition of free range adopted by members of the Association in 1989. That definition includes a number of components, including:

  • hens must have access to an area in which to range during daylight hours
  • the maximum stocking density is 300 birds per acre (750 per hectare)
  • the land where the hens are permitted to range must be capable of continued production of vegetation for food
  • hens must have permanent access to shade and protection, weatherproof shelter with adequate dry litter, food, fresh water, nesting boxes and perches.[133]

In response to the Consultation Paper, Free Range Egg Producers of South Australia 1500 (FREPOSA 1500) expressed support for:

... an information standard that would prescribe that eggs can only be labelled free range if ‘most birds range freely on an open range during daylight hours for a minimum of 8 hours with a stocking density no greater than 1500 hens/ha’.[134]

The owner operators of Idelwilde Open Range Farm expressed concern that ‘free range eggs cannot be achieved on a commercial scale’ and that commercial producers ‘should not be allowed to use the definition free range’. In their view, ‘there is nothing free about 10,000 birds to 1 hectare or 50,000 birds in a shed’.[135]

Financial implications

According to the Explanatory Memorandum to the Bill, the measures in Schedule 2 will have no financial impact on the Commonwealth.[136]

Key issues and provisions

Consultation

Between August and September 2017 Treasury conducted a consultation on the Treasury Laws Amendment (Measures for a later sitting) Bill 2017: Exposure Draft.[137] The Exposure Draft contained the proposed safe harbour defence,[138] which is set out in Schedule 2 to the Bill.[139] At the time of writing this Bills Digest, Treasury had not published the submissions it received during the Exposure Draft consultation.[140] Consequently, the following section refers to relevant comments made by stakeholders in submissions to the Consultation Paper released by Treasury in October 2015.

The Consultation Paper proposed a defence as part of Option 2 to shield producers from regulator enforcement action, where producers satisfied certain conditions.

The Decision RIS provided a comprehensive explanation of the purpose and scope of a proposed safe harbour defence.[141] In particular, it clarified that compliance with the information standard alone could not shield producers from allegations of false and misleading conduct without amendments to the ACL.[142]

Key provisions

Item 1 of Schedule 2 to the Bill inserts definitions of egg and free range egg into the subsection 2(1) of the ACL and effectively ties those definitions to the equivalent definitions in the Information Standard and to the new safe harbour defence.

As discussed above, the ACL contains a number of prohibitions that seek to ensure that consumers are not misled about the goods or services they purchase. As currently relevant:

  • section 18 provides that a person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive
  • paragraph 29(1)(a) provides that a person must not, in trade or commerce, in connection with the supply of goods or services, make a statement that is false or misleading as to whether the goods or services are of a particular standard, quality, value, grade, composition, style or model or have had a particular history or particular previous use and
  • paragraph 151(1)(a) creates a strict liability offence for a breach of the prohibition in paragraph 29(1)(a).

Item 2 of Schedule 2 to the Bill inserts proposed section 137A into the ACL. Proposed subsection 137A(1) creates an exemption from the prohibitions in section 18 and paragraph 29(1)(a) and from the offence provision in paragraph 151(1)(a) of the ACL in relation to the labelling or display of eggs, where a person complies with the requirements in an information standard for eggs, including requirements about the use of the word free range and representing that eggs are free range.

Proposed subsection 137A(2) clarifies that a person who seeks to rely on the exemption in proposed subsection 137A(1) in proceedings brought against them under section 18, or paragraphs 29(1)(a) and 151(1)(a) of the ACL bears the evidential burden of showing that they complied with an information standard for eggs in accordance with proposed subsection 137A(1). The Explanatory Memorandum states that the evidential burden is ‘appropriate in these circumstances’, because:

... the evidence as to whether a respondent/defendant has complied with the information standard and the free range egg labelling or display requirements is peculiarly within the knowledge and control of the respondent/defendant.[143]

Stakeholder comments

As stated above there has been a variety of views by stakeholders in relation to what the definition of free range eggs should encompass. The views of stakeholders are similarly varied in relation to the terms of the safe harbour defence.

Animal health and welfare organisations

In response to the original Consultation Paper, the Animal Defenders Office submitted:

‘Any guidance for producers on ‘free range’ egg production factors should be included as a defence only if the production factors equal or exceed ‘best practice’ free range egg production.[144]

The Humane Society International expressed conditional support for the inclusion of a defence provision, where the conditions are mandatory and reflect ‘true free range production’.[145]

Animals Australia emphasised the importance of the ‘ACCC retain[ing] their full powers and abilities to enforce and regulate the market for misleading and deceptive conduct’.[146] It rejected the notion of a defence and instead recommended the imposition of a ‘guideline’ document that would ‘ensure that industry groups received the guidance they have requested in relation to labelling eggs as free range, with some certainty of compliance’ whilst preserving the ACCC’s powers. [147]

Sentient expressed concern about the use of a ‘defence’ as part of an information standard or model code of practice for animal welfare, ‘because neither of these is mandatory, yet if complied with, both can be used by producers as a defence against cruelty claims’.[148]

Voiceless submitted that:

The creation of a ‘defence’ ... is unnecessary. Such a defence will erode both the common law position on the use of the free range label, as well as limit the ability of the ACCC to properly regulate the egg industry. Instead, a set of guidelines could be established to assist producers to satisfy the common law position.[149]

Consumer advocacy organisations

Responding to the Consultation Paper, CHOICE submitted that it:

... does not support the inclusion of defences in meeting a free-range egg standard. Producers that do not meet the basic definition of free-range should not be allowed to apply for a defence in order to use the label.[150]

Notably, CHOICE did not address the suitability of a defence where producers do meet the basic definition of free range, as provided for in Schedule 2 of this Bill.

Egg and meat producers - larger

The Australian Chicken Meat Federation submitted:

A defence does provide some certainty for producers, however, it does not provide certainty that the condition ‘most hens on most ordinary days’ has in fact met [sic].[151]

The Commercial Egg Producers’ Association of Western Australia:

... does not support the development of a “defence” to assist producers uncertain of when it would be appropriate to use as [sic] a free range label. If the definition of “free range” is clear then there is no need to have a defence against it.[152]

Egg Farmers of Australia considered that ‘the production of eggs is not illegal and should not require a defence’.[153] It explained further that:

Egg Farmer recognises the conceptual overlap between a standard and a defence but does not consider the issue is appropriately framed in this way. Producers should not require a defence to produce eggs. There are standards that already apply in the form of the Model Code and regulation should be limited to clarifying that the definition of free range reflects this industry practice and the expectations of consumers.[154]

Other stakeholders

The Law Society of South Australia submitted that the definition of ‘meaningful and regular access’ in the Exposure Draft of the Information Standard was ‘somewhat unclear and ambiguous’.[155] More broadly, it considered that the requirements in the proposed definition were ‘insufficient to properly constitute “free range” eggs’.[156]

Comments

The tension between producers and animal welfare advocates in relation to stocking rates has not been resolved. The Information Standard is likely to be subject to further calls for change in the wake of the release of the new Animal Welfare Standards and Guidelines for Poultry and ACCC regulatory activity in the egg producing sector.

Other provisions

About the AER

The Australian Energy Regulator (AER) is the independent statutory regulator of the national energy market. Its statutory remit is to administer the National Electricity Law and Rules and the National Gas Law and Rules. These laws apply to electricity generation and wholesale distribution and to gas transmission in all mainland states and territories other than Western Australia.[157]

The AER is established by Part IIIAA of the Competition and Consumer Act 2010 (CCA). The AER consists of a Commonwealth AER member and two state/territory AER members.[158]

The AER Chair must convene meetings of the AER as he, or she, thinks necessary for the efficient performance of the functions of the AER.[159]

Relevant to the amendments in Schedule 3 to the Bill, existing subsection 44AAF(1) of the CCA provides that the AER must take all reasonable measures to protect from unauthorised use or disclosure any information:

  • given to it in confidence in, or in connection with, the performance of its functions or the exercise of its powers or
  • that is obtained by compulsion in the exercise of its powers.

Monitoring function

On 1 July 2016, in accordance with the procedures in the Australian Energy Market Agreement, the COAG Energy Council agreed to introduce explicit wholesale market monitoring and reporting functions for the AER.[160]

In this role the AER monitors the wholesale electricity market to determine if features of the market may be detrimental to its effective functioning. The power is conferred under Division 1A of Schedule 1 to the National Electricity (South Australia) Act 1996 (SA). Importantly Schedule 1 to the National Electricity (South Australia) Act contains the National Electricity Law.[161]

The AER wholesale market monitoring functions are as follows: 

  • to monitor and review on a regular and systematic basis the performance of wholesale electricity markets in accordance with the National Electricity Law and the Rules in order to identify and analyse whether, in relation to a particular wholesale electricity market—
    • there is effective competition within the market
    • there are features of the market that may be detrimental to effective competition within the market and 
    • there are features of the market that may be impacting detrimentally on the efficient functioning of the market (and, if so, to assess the extent of the inefficiency) 

  • other monitoring or analysing functions that relate to offers and prices (including forecast prices, actual prices and bidding) within any wholesale electricity market conferred on the AER by the Rules.[162] 

The AER wholesale market reporting functions are to prepare, at least once every two years, a report on the results of the performance of the AER wholesale market monitoring functions. In addition the AER is to provide advice to the COAG Energy Council on the results of the performance of the AER wholesale market monitoring functions.[163]

Section 18D of the National Electricity Law sets out the conditions under which the AER may provide, use or disclose the information which it gathers in carrying out its monitoring function.

Key provisions

The provisions of Schedule 3 to the Bill amend section 44AAF of the CCA to ensure there is consistency between the National Electricity Law and the CCA. Currently, section 44AAF would permit disclosure of information in circumstances that would not be permitted under section 18D of the National Electricity Law, which only permits AER to use or disclose information collected as part of its wholesale market monitoring and reporting functions for the performance of those functions. The amendments operate to ensure that such information may only be used or disclosed under section 44AAF of the CCA if the use or disclosure would be permitted under section 18D of the National Electricity Law. This means that confidential supplier information obtained in relation to wholesale market monitoring and reporting can only be used by the AER for the purposes of the its wholesale market monitoring and reporting functions and can only be disclosed for the purposes of these functions. In addition, the disclosure must be made in such a way that it does not reveal any confidential aspects of the information or identify the wholesale electricity supplier to whom the information relates.[164]

Financial implications

According to the Explanatory Memorandum to the Bill, the measures in Schedule 3 will have no financial impact on the Commonwealth.[165]

 


[1].      Senate Standing Committee for the Selection of Bills, Report, 3, 2018, 22 March 2018, p. 3.

[2].      Senate Standing Committee for the Scrutiny of Bills, Scrutiny digest, 3, 21 March 2018, pp. 46–50.

[3].      The Statement of Compatibility with Human Rights can be found at pages 16–20, 24–5 and 94–6 of the Explanatory Memorandum to the Bill.

[4].      Parliamentary Joint Committee on Human Rights, Human rights scrutiny report, 3, 27 March 2018, p. 137.

[5].      B Billson (Minister for Small Business), Review to ensure national law continues to protect Australian consumers, media release, 10 July 2015.

[6].      Ibid.

[7].      Consumer Affairs Australia and New Zealand, Australian consumer law review: issues paper, March 2016.

[8].      Ibid., p. 39.

[9].      Ibid., p. 41.

[10].    Ibid., p. 43.

[11].    Consumer Affairs Australia and New Zealand, Australian consumer law review: interim report, October 2016.

[12].    M McCormack (Minister for Small Business), Consumer law in spotlight as Australians urged to have their say, media release, 17 October 2016.

[13].    Consumer Affairs Australia and New Zealand, Australian consumer law review: final report, March 2017, p. 87.

[14].    Ibid., p. 88.

[15].    Australian Competition and Consumer Commission (ACCC) v Coles Supermarkets Australia Pty Ltd [2014] FCA 1405.

[16].    Ibid., paragraph 106.

[17].    Consumer Affairs Australia and New Zealand, Australian consumer law review: final report, op. cit., proposal 18, p. 88.

[18].    For example, Cooper Grace Ward, Submission to CAANZ, Australian Consumer Law review: interim report, 9 December 2016, pp. 1–2.

[19].    ACCAN, Submission to CAANZ, Australian Consumer Law review: interim report, 9 December 2016, p. 8.

[20].    Australian Automotive Aftermarket Association, Submission to CAANZ, Australian Consumer Law review: interim report, December 2016, p. 8.

[21].    Law Council of Australia (SME Committee), Submission to CAANZ, Australian Consumer Law review: interim report, 19 December 2016, p. 8.

[22].    Ibid.

[23].    Caravan and Camping Industry Association of NSW, Submission to CAANZ, Australian Consumer Law review: interim report, 12 December 2016, p. 6.

[24].    Law Council of Australia (Business Law Section), Submission to CAANZ, Australian Consumer Law review: interim report, 30 January 2017, p. 18. Note that the relevant submission, is misnamed as emanating from the ‘Law Council of Australia Competition and Consumer Committee’.

[25].    Ibid., p. 19.

[26].    Explanatory Memorandum, Treasury Laws Amendment (2018 Measures No. 3) Bill 2018, p. 3.

[27].    See regulation 78 of the Competition and Consumer Regulations 2010.

[28].    ACL, proposed paragraph 151(5)(a) inserted by item 3, proposed paragraph 152(2A)(a) inserted by item 5, proposed paragraph 153(3)(a) inserted by item 7, proposed paragraph 154(5A)(a) inserted by item 9, proposed paragraph 155(3)(a) inserted by item 11, proposed paragraph 156(3)(a) inserted by item 13, proposed paragraph 157(3A)(a) inserted by item 15, proposed paragraph 158(10A)(a) inserted by item 17, proposed paragraph 159(4)(a) inserted by item 19, proposed paragraph 161(7)(a) inserted by item 21, proposed paragraph 162(6)(a) inserted by item 23, proposed paragraph 163(5A)(a) inserted by item 25, proposed paragraph 164(4)(a) inserted by item 27, proposed paragraph 166(8)(a) inserted by item 29, proposed paragraph 167(3)(a) inserted by item 31, proposed paragraph 168(2A)(a) inserted by item 33, proposed paragraph 194(8)(a) inserted by item 35, proposed paragraph 195(4)(a) inserted by item 37, proposed paragraph 197(8)(a) inserted by item 39, proposed paragraph 198(4)(a) inserted by item 41, proposed paragraph 199(4)(a) inserted by item 43, proposed paragraph 203(9)(a) inserted by item 45 and proposed paragraph 204(4)(a) inserted by item 47.

[29].    ACL, proposed paragraph 151(5)(b) inserted by item 3, proposed paragraph 152(2A)(b) inserted by item 5, proposed paragraph 153(3)(b) inserted by item 7, proposed paragraph 154(5A)(b) inserted by item 9, proposed paragraph 155(3)(b) inserted by item 11, proposed paragraph 156(3)(b) inserted by item 13, proposed paragraph 157(3A)(b) inserted by item 15, proposed paragraph 158(10A)(b) inserted by item 17, proposed paragraph 159(4)(b) inserted by item 19, proposed paragraph 161(7)(b) inserted by item 21, proposed paragraph 162(6)(b) inserted by item 23, proposed paragraph 163(5A)(b) inserted by item 25, proposed paragraph 164(4)(b) inserted by item 27, proposed paragraph 166(8)(b) inserted by item 29, proposed paragraph 167(3)(b) inserted by item 31, proposed paragraph 168(2A)(b) inserted by item 33, proposed paragraph 194(8)(b) inserted by item 35, proposed paragraph 195(4)(b) inserted by item 37, proposed paragraph 197(8)(b) inserted by item 39, proposed paragraph 198(4)(b) inserted by item 41, proposed paragraph 199(4)(b) inserted by item 43, proposed paragraph 203(9)(b) inserted by item 45 and proposed paragraph 204(4)(b) inserted by item 47.

[30].    ACL, proposed paragraph 151(5)(c) inserted by item 3, proposed paragraph 152(2A)(c) inserted by item 5, proposed paragraph 153(3)(c) inserted by item 7, proposed paragraph 154(5A)(c) inserted by item 9, proposed paragraph 155(3)(c) inserted by item 11, proposed paragraph 156(3)(c) inserted by item 13, proposed paragraph 157(3A)(c) inserted by item 15, proposed paragraph 158(10A)(c) inserted by item 17, proposed paragraph 159(4)(c) inserted by item 19, proposed paragraph 161(7)(c) inserted by item 21, proposed paragraph 162(6)(c) inserted by item 23, proposed paragraph 163(5A)(c) inserted by item 25, proposed paragraph 164(4)(c) inserted by item 27, proposed paragraph 166(8)(c) inserted by item 29, proposed paragraph 167(3)(c) inserted by item 31, proposed paragraph 168(2A)(c) inserted by item 33, proposed paragraph 194(8)(c) inserted by item 35, proposed paragraph 195(4)(c) inserted by item 37, proposed paragraph 197(8)(c) inserted by item 39, proposed paragraph 198(4)(c) inserted by item 41, proposed paragraph 199(4)(c) inserted by item 43, proposed paragraph 203(9)(c) inserted by item 45 and proposed paragraph 204(4)(c) inserted by item 47.

[31].    See, for example, sections 45AF (making a contract with a cartel provision) and 45AG (giving effect to a cartel provision),

[32].    ACL, proposed subclause 151(6) inserted by item 3, proposed subclause 152(2B) inserted by item 5, proposed subclause 153(4) inserted by item 7, proposed subclause 154(5B) inserted by item 9, proposed subclause 155(4) inserted by item 11, proposed subclause 156(4) inserted by item 13, proposed subclause 157(3B) inserted by item 15, proposed subclause 158(10B) inserted by item 17, proposed subclause 159(5) inserted by item 19, proposed subclause 161(8) inserted by item 21, proposed subclause 162(7) inserted by item 23, proposed subclause 163(5B) inserted by item 25, proposed subclause 164(5) inserted by item 27, proposed subclause 166(9) inserted by item 29, proposed subclause 167(4) inserted by item 31, proposed subclause 168(2B) inserted by item 33, proposed subclause 194(9) inserted by item 35, proposed subclause 195(5) inserted by item 37, proposed subclause 197(9) inserted by item 39, proposed subclause 198(5) inserted by item 41, proposed subclause 199(5) inserted by item 43, proposed subclause 203(10) inserted by item 45 and proposed subclause 204(5) inserted by item 47.

[33].    Note that, in accordance with the enactment of the Crimes Amendment (Penalty Unit) Act 2017, the amount of a penalty unit will be automatically adjusting in line with the Consumer Price Index (CPI) at three year intervals with effect from 1 July 2020. Currently a penalty unit is equivalent to $210. See section 4AA of the Crimes Act 1914.

[34].    Senate Standing Committee for the Scrutiny of Bills, Scrutiny digest, 3, op. cit., pp. 46–7.

[35].    Attorney-General’s Department, Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers, September 2011, p. 23.

[36].    Senate Standing Committee for the Scrutiny of Bills, Scrutiny digest, 3, op. cit., p. 47.

[37].    Consumer Affairs Australia and New Zealand, Australian consumer law review: final report, March 2017, p. 87.

[38].    Senate Standing Committee for the Scrutiny of Bills, Scrutiny digest, 3, op. cit., p. 48.

[39].    Caravan and Camping Industry Association of NSW, Submission to CAANZ, Australian Consumer Law review: interim report,
op. cit., p. 6.

[40].    ACL, subclause 18(1).

[41].    ACL, paragraph 29(1)(a).

[42].    The Treasury, Decision Regulation Impact Statement: Free Range Egg Labelling, March 2016 (as contained in the Explanatory Memorandum to the Treasury Laws Amendment (2018 Measures No. 3) Bill 2018) p. 34.

[43].    Primary Industries Standing Committee, Model Code of Practice for the Welfare of Animals, 4th edn, Collingwood, 2002, p. 2.

[44].    While not legally enforceable itself, state or territory legislation may require compliance with a Code, or part of it. See, for example, section 15 of the Animal Care and Protection Act 2001 (Qld).

[45].    Primary Industries Standing Committee, Model Code of Practice for the Welfare of Animals, op. cit., p. 2.

[46].    See: section 34 A of the Prevention of Cruelty to Animals Act 1979 (NSW) and regulation 33 of the Prevention of Cruelty to Animals Regulation 2012 (NSW); sections 6 and 7 of the Prevention of Cruelty to Animals Act 1986 (Vic); sections 13–16 and 40 of the Animal Care and Protection Act 2001 (Qld); section 43 of the Animal Welfare Act 1985 (SA); section 25 of the Animal Welfare Act 2002 (WA) and regulation 6 of the Animal Welfare (General) Regulations 2003 (WA); and sections 24, 25 and 79(i)(a) of the Animal Welfare Act (NT).

[47].    See clauses 2.3 and 14.1 of the Primary Industries Standing Committee, Model Code of Practice for the Welfare of Animals, op. cit.

[48].    Primary Industries Standing Committee, Model Code of Practice for the Welfare of Animals, op. cit., p. 28.

[49].    Ibid.

[50].    The Treasury, Decision Regulation Impact Statement: Free Range Egg Labelling, op. cit., p. 35.

[51].    Australian Animal Welfare Standards and Guidelines, ‘Poultry Public Consultation’, Australian Animal Welfare Standards and Guidelines website.

[52].    Ibid.

[53].    See, for example, Australian Veterinary Association (AVA), Submission to The Treasury, Free Range Egg Labelling: Consultation Paper, 22 October 2015, p. 2; Victorian Farmers Federation Egg Group (VFFEG), Submission to The Treasury, Free Range Egg Labelling: Consultation Paper, November 2015, pp. 17, 22.

[54].    See, for example, Animal Defenders Office (ADO), Submission to The Treasury, Free Range Egg Labelling: Consultation Paper, November 2015, p. 5; Animal Law Institute (ALI), Submission to The Treasury, Free Range Egg Labelling: Consultation Paper, 27 November 2015, p. 9; Egg Farmers Australia (EFA), Submission to The Treasury, Free Range Egg Labelling: Consultation Paper, November 2015, p. 22; Voiceless, Submission to The Treasury, Free Range Egg Labelling: Consultation Paper, 27 November 2015, p. 13. The ALI recommended that the definitions in the information standard be reviewed following the release of the revised Model Code, to ensure consistency between the two documents.

[55].    Australian Consumer Law (Free Range Egg Labelling) Information Standard 2017.

[56].    N Blewett (Chair), Labelling logic: review of food labelling law and policy, [Department of Health and Ageing], [Canberra], 2011.

[57].    Ibid., p. 97 [6.3].

[58].    Ibid., p. 104, Recommendation 37.

[59].    ACCC, ACCC not satisfied with proposed free range egg standards, media release, 2 November 2012.

[60].    NSW Fair Trading, ‘Super complaints’, NSW Fair Trading website, 9 December 2013. A super complaint is a mechanism which enables consumer organisations to lodge a complaint alleging ‘that a feature of a market for consumer goods or services is, or appears to be, significantly harming the interests of consumers’. In June 2011 the NSW Minister for Fair Trading announced the launch of an 18-month pilot program to enable CHOICE to lodge super complaints with NSW Fair Trading.

[61].    CHOICE, Free-range egg claims in NSW: super-complaint to NSW Fair Trading, NSW Fair Trading website, 29 August 2013, p. 12.

[62].    NSW Fair Trading, NSW Fair Trading response to Choice super complaint on free-range egg claims in NSW, NSW Fair Trading website, 7 December 2013, p. 21.

[63].    Australian Competition and Consumer Commission v Bruhn [2012] FCA 959; Australian Competition and Consumer Commission v Pirovic Enterprises Pty Ltd (No 2) [2014] FCA 1028 (‘ACCC v Pirovic [No 2]’); Australian Competition and Consumer Commission v RL Adams Pty Ltd [2015] FCA 1016; Australian Competition and Consumer Commission v Derodi Pty Ltd [2016] FCA 365 (‘ACCC v Derodi’); Australian Competition and Consumer Commission v Snowdale Holdings Pty Ltd (2016) 339 ALR 455, [2016] FCA 541.

[64].    Australian Competition and Consumer Commission v Pirovic Enterprises Pty Ltd (No 2) [2014] FCA 1028.

[65].    ACCC v Pirovic [No 2] [2014] FCA 1028. See also: ACCC v Derodi [2016] FCA 365.

[66].    ACCC, ACCC urges egg industry to review free range claims, media release, 13 November 2014.

[67].    Ibid.

[68].    Legislative and Governance Forum on Consumer Affairs, Joint Communique, Meeting of Ministers for Consumer Affairs, Canberra, 12 June 2015, p. 2.

[69].    Explanatory Statement, Australian Consumer Law (Free Range Egg Labelling) Information Standard 2017, p. 2.

[70].    The Treasury, Free range egg labelling: consultation paper (prepared on behalf of Consumer Affairs Australia and New Zealand), Commonwealth of Australia, Canberra, October 2015.

[71].    Ibid., p. 14.

[72].    Ibid., p. 19.

[73].    Ibid., pp. 19–21.

[74].    Ibid., p. 22.

[75].    Ibid., p. 27.

[76].    Ibid., p. 28.

[77].    Ibid., p. 29.

[78].    The Treasury, ‘Free range egg labelling’, Treasury website; The Treasury, Decision Regulation Impact Statement: Free Range Egg Labelling, op. cit., pp. 55–6.

[79].    Ibid. Department of Prime Minister and Cabinet (PM&C), ‘Free range egg labelling’, PM&C website.

[80].    Ibid., p. 34.

[81].    Ibid., p. 26.

[82].    Ibid., p. 40.

[83].    Legislative and Governance Forum on Consumer Affairs, Joint Communique, Meeting of Ministers for Consumer Affairs, Canberra, 31 March 2016, p. 2.

[84].    Explanatory Statement, Australian Consumer Law (Free Range Egg Labelling) Information Standard 2017, p. 2.

[85].    Ibid.

[86].    The Treasury, Free range egg labelling: consultation paper, op. cit.

[87].    Explanatory Statement, Australian Consumer Law (Free Range Egg Labelling) Information Standard 2017, p. 2.

[88].    Explanatory Memorandum, Treasury Laws Amendment (2018 Measures No 3) Bill 2018, p. 21.

[89].    Australian Consumer Law, section 134.

[90].    The Treasury, The Australian Consumer Law: a framework overview, Commonwealth of Australia, Canberra, 2013, p. 4.

[91].    Australian Consumer Law, section 135.

[92].    Australian Consumer Law, section 136.

[93].    Australian Consumer Law, sections 203 and 224.

[94].    Australian Consumer Law, sections 236 and 237.

[95].    The Treasury, Decision Regulation Impact Statement: Free Range Egg Labelling, op. cit., pp. 62–4 [2.194].

[96].    Ibid., Australian Consumer Law, Chapter 3, Part 3-1, Division 1.

[97].    Australian Consumer Law (Free Range Egg Labelling) Information Standard, section 4 defines the laying cycle for a group of hens as the period during which the hens are kept together, are managed in the same way and are able to lay eggs.

[98].    Australian Consumer Law (Free Range Egg Labelling) Information Standard, section 4 defines the term stocking density as the maximum number of hens per hectare that have access to an outdoor range on any day during the laying cycle.

[99].    Australian Consumer Law (Free Range Egg Labelling) Information Standard, subsection 7(2).

[100].  Ibid., subsection 8(2).

[101].  Australian Consumer Law (Free Range Egg Labelling) Information Standard, section 9.

[102].  Australian Consumer Law (Free Range Egg Labelling) Information Standard, subsection 9(3).

[103].  ACCC, ACCC enforcement guidance: free range egg claims, Commonwealth of Australia, Canberra, February 2018, p. 2.

[104].  Ibid.

[105].  Ibid.

[106].  Animal Health Australia, Submission to The Treasury, Free Range Egg Labelling: Consultation Paper, November 2015, p. 3.

[107].  ALI, Submission to The Treasury, Free Range Egg Labelling: Consultation Paper, November 2015, p. 6 (emphasis in the original) (citations omitted).

[108].  The Treasury, Free range egg labelling: consultation paper, op. cit., pp. 28–9.

[109].  Animals Australia (AA), Submission to The Treasury, Free Range Egg Labelling: Consultation Paper, November 2015, p. 6.

[110].  AVA, Submission to The Treasury, Free Range Egg Labelling: Consultation Paper, 22 October 2015, p. 1.

[111].  Ibid.

[112].  Human Society International (HIS), Submission to The Treasury, Free Range Egg Labelling: Consultation Paper, 29 October 2015, p. 10.

[113].  HSI, Submission to The Treasury, Free Range Egg Labelling Information Standard Consultation, 8 December 2016, pp. 2–3 (emphasis in original).

[114].  Ibid., pp. 1–2.

[115].  RSPCA, Submission to The Treasury, Free Range Egg Labelling Information Standard Consultation, 6 December 2016, p. 1.

[116].  Voiceless, Submission to The Treasury, Free Range Egg Labelling Information Standard Consultation, 9 December 2016, p. 2.

[117].  Ibid., p. 3.

[118].  World Animal Protection, Submission to The Treasury, Free Range Egg Labelling: Consultation Paper, 30 October 2015, p. 5.

[119].  Ibid.

[120].  Primary Industries Standing Committee, Model Code of Practice for the Welfare of Animals, op. cit., p. 28.

[121].  AA, Submission to The Treasury, Free Range Egg Labelling: Consultation Paper, November 2015, p. 6.

[122].  CHOICE, Submission to The Treasury, Free Range Egg Labelling: Consultation Paper, 29 October 2015, p. 24.

[123].  Treasury, Free range egg labelling: consultation paper, op. cit., pp. 28–9.

[124].  CHOICE, Submission to the Treasury, Free Range Egg Labelling Information Standard Consultation, December 2016, p. 5.

[125].  Ibid., p. 8.

[126].  EFA, Submission to The Treasury, Free Range Egg Labelling: Consultation Paper, November 2015, pp. 3, 9–10.

[127].  Ibid., p. 3.

[128].  Commercial Egg Producers’ Association of Western Australia (CEPAWA), Submission to the Treasury, Free Range Egg Labelling: Consultation Paper, 27 November 2015, p. 6; Queensland United Egg Producers, Submission to the Treasury, Free Range Egg Labelling: Consultation Paper, 2015, p. 3.

[129].  South Australian Local Egg Section, Submission to Free Range Egg Labelling: Consultation Paper, 22 November 2015, p. 3.

[130].  New South Wales Farmers Association Egg Section Committee, Submission to the Treasury, Free Range Egg Labelling Information Standard Consultation, 14 December 2016, p. 1.

[131].  Victorian Farmers Federation Egg Group (VFFEG), Submission to the Treasury, Free Range Egg Labelling: Consultation Paper, 19 October 2015, p. 13.

[132].  Ibid., pp. 16–17.

[133].  Free Range Egg Farmers Association of Victoria, Submission to the Treasury, Free Range Egg Labelling: Consultation Paper, November 2015, p. 5.

[134].  Free Range Egg Producers of South Australia 1500, Submission to the Treasury, Free Range Egg Labelling: Consultation Paper, 25 November 2015, p. 1.

[135].  Idlewilde Open Range Farm, Submission to the Treasury, Free Range Egg Labelling: Consultation Paper, 24 November 2015, p. 1.

[136]Explanatory Memorandum, Treasury Laws Amendment (2018 Measures No. 3) Bill 2018, p. 3.

[137].  The Treasury, ‘Free range egg labelling information standard safe harbour’, The Treasury website, 2017.

[138].  Treasury Laws Amendment (Measures for a later sitting) Bill 2017: Exposure Draft, item 2.

[139].  Treasury Laws Amendment (2018 Measures No. 3) Bill 2018, Schedule 2, item 2.

[140].  The Treasury, ‘Free range egg labelling information standard safe harbour’, op cit.

[141].  The Treasury, Decision Regulation Impact Statement: Free Range Egg Labelling, op. cit., pp. 40, 42–3.

[142].  Ibid., pp. 42–3.

[143]Explanatory Memorandum, Treasury Laws Amendment (2018 Measures No 3) Bill 2018, p. 23.

[144].  ADO, Submission to the Treasury, Free Range Egg Labelling: Consultation Paper, November 2015, p. 5, (emphasis in the original).

[145].  HSI, Submission to the Treasury, Free Range Egg Labelling: Consultation Paper, 29 October 2015, p. 10.

[146].  AA, Submission to the Treasury, Free Range Egg Labelling: Consultation Paper, November 2015, p. 4.

[147].  Ibid.

[148].  Sentient, Submission to the Treasury, Free Range Egg Labelling: Consultation Paper, 26 November 2015, p. 2.

[149].  Voiceless, Submission to the Treasury, Free Range Egg Labelling: Consultation Paper, 27 November 2015, p. 4.

[150].  CHOICE, Submission to the Treasury, Free Range Egg Labelling: Consultation Paper, November 2015, p. 27.

[151].  Australian Chicken Meat Federation, Submission to the Treasury, Free Range Egg Labelling: Consultation Paper, 23 November 2015, p. 3.

[152].  CEPAWA, Submission to the Treasury, Free Range Egg Labelling: Consultation Paper, 27 November 2015, p. 6.

[153].  EFA, Submission to the Treasury, Free Range Egg Labelling: Consultation Paper, November 2015, p. 22.

[154].  Ibid., p. 27.

[155].  Law Society of South Australia, Submission to the Treasury, Free Range Egg Labelling Information Standard Consultation, 8 December 2016, p. 2.

[156].  Ibid.

[157].  RV Miller, Miller’s Australian Competition and Consumer Law Annotated, Lawbook Co., Sydney, 2018, p. 183.

[158]CCA, section 44AG.

[159]CCA, section 44AAD.

[160]CCA, subsection 44AI(3) provides that the AER cannot perform a duty or function, or exercise a power, under a state/territory energy law or a local energy instrument unless the conferral of the function or power, or the imposition of the duty, is in accordance with the Australian Energy Market Agreement, or any other relevant agreement between the Commonwealth and the state or territory concerned.

[161].  The National Electricity Law is a cooperative legislative scheme between the Commonwealth, states and territories. South Australia is the lead legislator, so these laws are contained in schedules to South Australian legislation, with legislation in other relevant jurisdictions applying this South Australian legislation. See S Power, Competition and Consumer Amendment (Abolition of Limited Merits Review) Bill 2017, Bills digest, 25, 2017–18, Parliamentary Library, Canberra, 2017. See also: Australian Energy Regulator (AER), ‘Energy industry regulation’, AER website.

[162].  National Electricity (South Australia) Act, Schedule 1, subsection 18C(1). The Rules are the National Electricity Rules.

[163].  National Electricity (South Australia) Act, Schedule 1, subsection 18C(2).

[164]Explanatory Memorandum, Treasury Laws Amendment (2018 Measures No. 3) Bill 2018, p. 93.

[165].  Ibid., p. 5.

 

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