Auditor-General Report No. 5 2020–21
The Commonwealth entity included in the audit was the Australian Energy Regulator (AER). The objective of the audit was to assess the effectiveness of the AER’s regulation of energy markets.
provides background information on the National Energy Market (NEM), the AER, and the audit report’s findings;
outlines the AER’s governance and performance measurement practices;
discusses the AER’s handling and use of regulatory information;
discusses the AER’s risk management processes; and
briefly considers other evidence to the inquiry.
The Committee’s inquiry into this report found that the AER’s regulation of energy markets in Australia was largely effective, with ANAO recommendations suggesting improvements to generally sound regulatory processes. All recommendations were accepted, and the AER engaged constructively throughout the inquiry.
Background and audit findings
National energy governance
The governance of energy generation and sale in Australia is complex. The NEM commenced operation in 1998. In 2004, the Council of Australian Governments (COAG, now the National Cabinet) established a governance framework to oversee the NEM. The framework is set out in the Australian Energy Market Agreement, under which Australian jurisdictions may develop and implement Australian Energy Market Legislation, most of which relates to electricity and gas.
In addition, the framework set up three market institutions that were accountable to the then-COAG Energy Council (now the Energy National Cabinet Reform Committee).
The AER is one of the three market institutions so established, along with the Australian Energy Market Commission (AEMC) and the Australian Energy Market Operator (AEMO). Each has its own functions:
AEMC creates and revises National Energy Rules under the National Energy Laws and provides advice to participating governments;
AEMO is responsible for operating Australia’s electricity and gas markets and systems, through day-to-day management of wholesale and retail energy market operations; and
AER is responsible for regulating the NEM in jurisdictions that have adopted Australian Energy Market legislation.
In 2017 an additional body, the Energy Security Board (ESB), was established by the then-COAG Energy Council to coordinate the implementation of energy reform and provide oversight of energy security and reliability. The ESB has an independent chair and deputy, as well as the leaders of the AER, AEMO and AEMC as members.
Under the national legislation, the AER’s key functions to are to:
regulate wholesale electricity and natural gas through price-setting of monopoly networks and through regulation where competition exists; and
regulate retail electricity and gas markets where the National Energy Retail Law applies – South Australia, New South Wales, Queensland, the Australian Capital Territory, and Tasmania (electricity only).
In 2018-19 the AER was responsible for regulating:
110 generation businesses with annual turnover of nearly $20 billion;
84 retail businesses providing energy services to approximately 9.5 million residential and commercial customers; and
30 transmission and distribution networks with assets worth $107 billion.
The AER is established under Section 44AE of the Competition and Consumer Act 2010. The Act provides for the creation of the AER Board, which is comprised of two Commonwealth members and three state or territory members. The powers of the AER Board are set out in the Act and may be drawn from the Act itself, other Commonwealth laws, or from state and territory energy laws.
The Chair of the Australian Competition and Consumer Commission (ACCC) provides staff to assist the AER Board in carrying out its functions. This AER division is led by an ACCC employee known as the AER Chief Executive Officer. For clarity and following the audit report, in most instances the term AER will refer to the Board and the division jointly. If necessary they will be distinguished.
In general, the report made positive findings and its recommendations are mostly aimed at the improvement of existing practices and represent comparatively modest changes. Recommendation 2 related to governance, and suggested that the AER would benefit from an AER-specific corporate plan and strategy. Recommendations 3 and 4 related to information management, and argued for improvements in the documentation and communication of review and assessment processes, as well as for better collection, management and use of compliance information. Finally, recommendations 1, 5 and 6 suggested refinements to the way the AER manages organisational and compliance risks, and to how those risks might better inform its decision-making.
The AER agreed with all six recommendations.
Governance and performance measurement
The ANAO’s assessment of the AER’s internal performance measurement and governance while regulating the NEM was, overall, a positive one:
The AER has established largely effective governance and oversight arrangements for its National Energy Market regulatory activities ... Between April 2019 and April 2020, the AER was progressing the implementation of recommendations from a number of reviews to improve governance and operational management arrangements, including to increase the strategic focus of the AER Board.
However the report identified a number of areas in which the AER could improve its internal governance. Partly these arose from the complexity of the AER’s external reporting and accountability arrangements:
The AER has two distinct arrangements for external reporting on its performance - the Commonwealth performance framework and the statements of expectations from the COAG Energy Council and Commonwealth Treasurer. These two frameworks were not well linked, and neither adequately captured the AER’s purposes or provided a clear read from the purposes to the AER’s deliverables.
Dr Liz Develin, Chief Executive Officer of the AER, provided updated information on these arrangements:
The energy minister’s forum provides a statement of expectations to the Australian Energy Regulator. The last one of those statements covered the period 2014 to 2017. In response to that, the Energy Regulator prepares a statement of intent, which was the last one covering that period ... Separately, with the new governance arrangements with energy ministers, we provide an annual plan of our priorities over the year and we have been reporting to energy ministers on a six-monthly basis on our priorities, our budget, our governance arrangements … In terms of the framework of the energy ministers, they are very much setting priorities in accordance with the Strategic Energy Plan. Our statement of intent is, really, to respond to those, in terms of what we will do. Separately, we have the same accountability as other government agencies through parliamentary budget statements, annual reports and those things, which are far more through the Commonwealth government processes.
The audit report noted the central role in facilitating good governance outcomes played by corporate planning documents:
The corporate plan is intended to be the entity’s primary planning document. It is required to set out the purposes and activities that the entity will pursue and the results it expects to achieve, including explaining the environment and context in which the entity operates, its planned performance measures, risk profile and capabilities over a minimum of four reporting periods.
The report went on to argue that the AER should have its own separate planning and strategy documents:
The AER’s planning, performance and evaluation arrangements are not outlined in a framework document. They are not included under any performance measurement and evaluation framework developed by the ACCC. To ensure that the AER is well positioned to demonstrate that its purpose is met, the AER should develop a performance measurement framework that details the AER’s purpose, strategies and activities to achieve the purpose, measures for assessing performance in the short to long term, and arrangements for evaluating the AER’s success in achieving its purpose.
The report also noted that the AER’s existing planning documents do not have a sufficiently clear relationship between the organisation’s purpose and its outcomes:
The purpose does not provide a ‘clear read’ to the AER’s deliverables as it is not clear which deliverables contribute to efficient investment, operation and use of energy services for the long term interests of consumers with respect to price, quality, safety, reliability and security.
As the ANAO explained:
In terms of their deliverables, activities and performance measures, when you follow them through ... what you can see is that matters, such as security, reliability, price and quality, are infrequently and sometimes never mentioned. Therefore, it’s not clear how their planned performance arrangements are seeking to address that purpose.
Consequently the ANAO recommended that the AER develop a performance measurement and evaluation framework with a corporate plan at its centre, which ‘supports the AER to report on its effectiveness with respect to its purpose and primary activities and strategies’.
The AER agreed to the recommendation and noted that it has addressed the recommendation by producing its own corporate plan, which previously was not separate from that of the ACCC:
The AER does not publish its own separate corporate plan. But to assist us in implementing this recommendation, with the agreement of the ACCC, we produced an AER-specific plan as part of the broader agency 2020-21 Corporate Plan. This was published at the end of August.
The AER also advised the Committee that it has worked to improve its strategic planning:
In 2020, the AER undertook a significant strategic planning exercise, resulting in the development of our new Strategic Plan that outlines our vision, outcomes, objectives, priorities and enablers across our people, stakeholders and systems.
The AER said that this effort will assist it in dealing with planning, report and performance management work in future:
The AER Strategic Plan forms the centrepiece of the AER’s new planning and reporting arrangements. It is also enabling us to consider refinements to our key performance indicators so that we move towards a clearer program logic incorporating a suite of output, outcome and impact measures.
Dr Develin explained that the strategic plan has not only informed the corporate plan but also the AER’s reporting to government:
I think one of the key things we’ve done since the audit is the release of a strategic plan for the Australian Energy Regulator, which then aligns with a corporate plan, so we now have a series of planning framework documents, if you like, which will assist the Commonwealth government requirements. Separately the strategic plan for the Australian Energy Regulator is also what we use in our annual reporting to ministers, so that has informed our report to ministers of what we plan to do this year and it will also inform our six-monthly reports on how we’re going.
The AER noted that although its planning work remains an ongoing project, it was already beginning to deliver more favourable governance outcomes:
We took initial steps in this year’s Corporate Plan to reduce our reliance on what the ANAO has characterised as more managerial output measures, with a greater emphasis now on outcomes and impact, but this is a work in progress. We are currently working with the AER Board on developing measures that allow us to account for our impact across our diverse areas of work, with a view to putting in place substantially improved measures for 2021-22.
Information management and communication
Strong information management practices are vital to all effective regulators. The collection, management and use of regulatory information are essential to ensure decisions can be substantiated and legislative and other obligations can be satisfied. Open and frequent communication with stakeholders is also important.
The ANAO made two recommendations in this area – recommendation 3, which recommended better and more consistent documentation and communication of reviews and assessments, and recommendation 4, which dealt with the collection and use of compliance intelligence.
Documentation and communication of reviews and assessments
The Regulator Performance Framework – applicable to key government regulatory bodies – references both of these key principles and encourages regulators to act with transparency wherever possible:
Effective communication is vital for the efficient delivery of regulatory services and the achievement of positive regulatory outcomes. Clear advice and guidance can reduce the compliance burden on regulated entities and reduce non-compliant activity … Where possible, better practice regulators clearly communicate the evidence base and approach used in the regulatory decision making process to regulated entities.
A number of other frameworks impose obligations on the AER regarding information management, including the National Energy Laws which detail a range of duties with respect to stakeholder communication. The audit report lists the following:
providing information to support energy businesses to comply with the legislation and rules;
operating an energy price comparator website;
publishing performance and compliance reports on energy markets;
implementing arrangements to ensure the contestability, reliability and security of the energy market;
managing review and assessment processes in electricity and gas markets; and
establishing and maintaining public registers, including for retailer authorisations and retail and network businesses exemptions.
The ANAO made generally positive findings on these duties. It found that:
the AER’s ‘development and communication of procedures and guidelines has been largely effective’ and that for the most part they met content and timeliness requirements;
the ‘Energy Made Easy’ website was ‘largely appropriate’, but said that the AER ‘cannot demonstrate that the website is effective or value for money’ because it ‘has not developed adequate performance measures and targets to measure the effectiveness of the website’;
the AER’s stakeholder communication and publications were done on time and to standards; and
the AER had maintained public registers of energy assets and businesses adequately.
The report found some issues with the AER’s management of reviews and assessments. These are:
… processes [which] can involve the AER making decisions about energy business revenues, market entry, exemptions, disputes, and other matters covered by the law. For these assessment and review processes the laws establish criteria or conditions to be satisfied and may set timeframes within which applications, submissions and assessments need to be made. The AER must make an assessment of whether the criteria or conditions have been satisfied.
While the ANAO found that reviews of hardship policies were timely and well documented, in the case of many other policies they were not:
… with the exception of the Hardship Policy Review update completed in 2019, between 25 and 94 per cent of the AER’s reviews and assessments examined were not timely … retail reviews and assessments always documented the AER’s assessments, whereas networks tariff reviews did not document assessments in 80 per cent of cases, and advice to the AER Board addressed the overall assessment of components of revenue proposals, while not addressing each legislative requirement, and supporting documentation was incomplete.
As a result the ANAO recommended that the AER develop tools to improve documentation and management of reviews and assessments, and to assist in the provision of reliable information on them for performance reporting purposes.
The AER agreed to the recommendation. In response, it said:
Three recent initiatives are assisting in addressing this recommendation:
A new project management framework has been developed and is now in use following staff training last year. This training was attended by 95 per cent of executive level staff and included the development of a toolkit of core templates for project plans, scheduling and status reporting. This will assist in managing projects in a more consistent, structured way across the AER.
Although we continue to draw on ACCC corporate resources, we are currently implementing an organisational redesign which includes enhancing AER-specific corporate functions. The dedicated new AER Corporate team will amongst other things lead on portfolio management reporting, as well as improvements to other processes and how we document work.
We have already developed a number of materials and guides to promote agency wide consistency, including enhanced Board and committee paper templates. We have also developed a compliance and enforcement toolbox that includes guides and templates. These act as a useful resource for staff but also aid consistency in the management and delivery of our compliance work program.
In addition to the above, the ANAO also identified issues with the AER’s information management capabilities:
The AER did not fully establish and consistently apply robust systems and processes for gathering, storing, retrieving and analysing compliance intelligence from all sources. While the AER collected significant amounts of information, it was often captured or stored in ways that did not allow for efficient retrieval or analysis to inform the AER’s compliance and enforcement activities.
The report noted that the AER makes some effort to provide templates and guidance to assist in the collection of structured data for easier use and analysis. However this is not consistently done:
Some of the AER’s information collection processes are supported by templates and guidance, while others are not. In the absence of guidance or templates for providing intelligence, the AER receives unstructured data that may not contain important information for assessing compliance risk or identifying potential compliance breaches.
According to the ANAO, this had a direct impact on the AER’s ability to use the information in its possession:
The AER’s approach to storing information directly impacted its ability to quickly and easily retrieve all relevant intelligence from where it was stored. Where intelligence was stored consistently in a structured system (such as a database) it was straightforward to extract information.
Consequently the ANAO recommended that the AER improve its information management framework or arrangements for compliance intelligence to promote useful, specific data collection methods, and to ensure the AER was able to better make use of its data.
The AER agreed with this recommendation and said it would work towards its implementation:
A centralised repository of compliance intelligence will be developed that includes key details such as the type and location of the information stored. This will allow easier and more efficient retrieval, analysis and application in risk based decision making.
The AER told the Committee that it expects to have its new information management system fully completed and operational in June 2021:
In December 2020 the functionality to support the information management framework was completed. This involved modifying the existing enterprise data asset register to manage, store and retrieve compliance assets. Since then we have been populating compliance data assets into this enhanced register.
On this issue, the Deputy Auditor-General said that information management was an issue for many regulators, and that the AER’s response to the audit report was promising:
People involved in compliance activities collect a lot of information. One of the observations we made in this report was that it wasn’t collected in a way that was useful and accessible to the people who might need it. They might need it in the individual activities they undertake but it’s also really useful to a regulator to step back and have a look at that data and say, ‘How is this market operating? Are new risks emerging?’ et cetera. So it’s positive to hear that the regulator has taken some steps to improve the quality of the collection [and] the structure.
The ANAO made two recommendations with respect to risk management. The first related to organisational risk – that is, risks that could impact the ability of the AER to perform its functions. The second related to management of compliance risk – the risk that regulated entities might fail to comply with the National Energy Market’s laws, rules and regulations.
The audit report observed that the AER’s unique structure – sharing staff and governance arrangements with the ACCC while owing performance obligations to a wide range of stakeholders – can give rise to special challenges, especially with respect to risk.
The report pointed out that the AER is covered by, or included in, the ACCC’s risk plan:
The ACCC has developed a risk management framework that is endorsed by the accountable authority and an enterprise risk register (that identifies risk at an enterprise and division level within the ACCC, and includes AER division risks).
However it noted that the ACCC risk plan ‘did not address identification and management of shared risk in a consistent and systematic way under the plan’. This posed a particular problem for the AER given that the organisational risks it faces may diverge from those of the ACCC. In particular:
AER Board and division shares many risks with other stakeholders including energy market institutions, the COAG Energy Council and energy market participants. For example, the AER division has identified a risk that substantial new functions are assigned to the AER Board without appropriate funding increases, sufficient notice, or in an area where the AER division does not have relevant expertise.
Consequently the ANAO recommended that the AER develop better mechanisms for reporting and treating its organisational risk.
The AER agreed with the recommendation and said it has done significant work toward implementing it:
While the AER has an independent Board, the AER must also comply with the ACCC’s risk management framework. Within this framework a number of ACCC committees also provide oversight of the AER’s systems of risk and control. Since mid-2019, the AER has made a number of improvements to risk management that strengthen the organisation’s capability through training and enhanced processes and procedures.
Dr Develin informed the Committee that the AER has worked hard to create better risk management practices internally:
… we have trained all our executive level staff in risk management and in project management, because a lot of the recommendations would assist with those sorts of activities. We have revised our risk table, very much taking up that recommendation around shared risks. We are very conscious now of our shared risks, particularly with the other market bodies that operate in the energy system and with our relationship with our portfolio agencies, such as Treasury and Energy.
In relation to shared risk Dr Develin stressed the importance of good communication with other stakeholders:
With regard to the shared risks in particular, it really is about keeping a good dialogue with our partners who share the risks with us. This is particularly the case with the Australian Energy Market Commission, who are the rule makers. We have routine, shared board meetings where risk issues can be talked about. Similarly in our reporting to energy ministers, one of the requirements of that six monthly reporting is any risks. This provides another opportunity to demonstrate how the market bodies are working together.
Finally, the AER submission highlighted a number of specific measures it has undertaken to address recommendation 1:
all executive level staff have completed training on risk identification, management and reporting, as well as project management training. Both initiatives are designed to support the building of risk capability within the AER.
we have revised the AER’s organisational-level risk table as part of the ACCC’s annual business planning process. This allows for the identification of a number of shared risks between the AER and ACCC in a consistent and systematic way, and to work with the ACCC on action plans for risks rated as ‘high’ or above.
we have revised the AER’s organisational-level risk table as part of the ACCC’s annual business planning process. This allows for the identification of a number of shared risks between the AER and ACCC in a consistent and systematic way, and to work with the ACCC on action plans for risks rated as ‘high’ or above.
we are working on a new enhanced format for our centralised risk register. This register is designed to present AER risks clearly, to quickly identify emerging areas of risk and agree on mitigations.
we have implemented monthly CEO updates on strategic and operational risks, and dedicated quarterly updates on the centralised register, to the AER Board’s Policy and Governance Committee.
Recommendations 5 and 6 of the audit report focused on risks of non-compliance and enforcement and were aimed at:
establishing better linkages between the AER’s regulatory objectives, its evaluation frameworks, and the risks of non-compliance; and
developing risk-based triage processes to support decision-making in relation to non-compliance and enforcement.
The audit report found that the AER’s framework for assessing, prioritising and managing risks of non-compliance in the NEM was ‘partially effective’:
The framework requires risk assessments of each obligation contained in the National Energy Laws. However, many obligations have not been assessed and the framework does not sufficiently distinguish risk levels to support prioritisation and allocation of resources. The AER does not monitor and adjust risk assessments and related strategies and priorities.
The report found that the AER conducted compliance risk assessments only when resourcing permitted, meaning that many of them were not kept up to date:
The AER advised that risk assessments are undertaken when resourcing has permitted, leaving a backlog of provisions waiting to be assessed following law and rule changes. The backlog means that AER do not have a complete understanding of compliance risk.
The report also found that the AER’s compliance risk matrix was not sufficiently granular, which limited its ability to prioritise its work program:
This matrix does not sufficiently support the AER to distinguish between compliance risks, such as those with catastrophic versus major consequences or those that are possible or likely to occur. The risk assessment process and work instruction do not provide for further prioritisation of risks. This limits the AER’s ability to prioritise obligations with more significant consequences and/or that are more likely to occur, which is important given the AER’s lack of capacity to address many ‘red zone’ cases.
In responding to this issue, the AER noted the complexity of managing compliance with the national energy laws:
The energy framework, in terms of compliance enforcement, is quite challenging. It is obligation dense. It’s a changing framework. It is unique in the sense that we have customer facing obligations as well as market obligations to ensure the market works to the benefit of the consumers. This in itself makes it a uniquely challenging framework to administer, enforce and ensure compliance with.
However, the AER told the Committee that the ANAO’s recommendations in relation to compliance risk were similar to those made in a 2019 internal review, and that as such work to implement them is well underway:
The review made a number of recommendations to strengthen and improve our capabilities and they are being implemented by our Compliance and Enforcement Branch. As such, implementation is well advanced and in 2019 for the first time, we released Compliance and Enforcement Priorities to guide and focus our work.
The AER went on to say:
Recommendation 5 requires the AER to develop a decision making framework that demonstrates the link between regulatory obligations and non-compliance risks in the National Energy Market and the AER’s annual compliance and enforcement priorities. Our new Compliance Decision Making Framework is designed to measure and assess this risk and apply it to our work including annual compliance and enforcement priority setting. This Framework will be considered by the AER Board in the first quarter of 2021 and used in the setting of our 21/22 compliance and enforcement priorities. We are also developing performance measures to evaluate the setting of these priorities.
The AER’s response to recommendation 6 also pointed to the work of its Compliance Decision Making Framework. In addition, however, it noted that:
We have also aligned our management and governance processes to the new compliance assessment process, for example through the creation of a centralised assessment team and the new Enforcement and Compliance Committee, comprised of AER Board members. These are proving valuable for triaging matters and decision-making.
The AER outlined some of the specific measures it has taken to improve its compliance risk management:
Historically, compliance and enforcement activities were dispersed across the organisation. We do now have a specialised compliance and enforcement branch. Within that, there is an assessment team whose role is to triage and look at risks of noncompliance. We have also enhanced our risk-assessment process. Within the energy laws there are 12,000 obligations on people. We have gone through every single one of those to triage them, in terms of a high or a low impact on consumers or a risk of harm or difficulty of compliance. That also helps us think about our assessments.
The AER also argued that implementing a proper response to recommendations such as these is difficult but that it is making good progress:
It is a long process to build capability in compliance and enforcement. Since the creation of our standalone compliance and enforcement branch two years ago, you have seen an evolution of increased enforcement in compliance activity, including taking on litigation to resolve serious conduct or concerns for the AER.
Comment on additional public submissions
The Committee received three submissions from Australian energy companies or representative bodies, all of which argued for broader reconsideration of Australia’s energy market regulation.
AGL Energy said there is a need for clarity in regulatory functions to ‘reduce duplication and inefficiencies’:
The original intent of the Australian Energy Market Agreement (AEMA), is the separation of responsibilities, in which the Australian Energy Market Commission (AEMC) is the rule-maker and the AER is the rule-enforcer, no longer holds true. Through the increasing use of guidelines, the role of rules making is falling to the AER creating an inconsistent and confused regulatory regime.
AGL argued that the AER should be mindful of the impacts its guidelines might have on investment, markets or competition:
At present, the obligations on the AER for creating guidelines are significantly high level and only focus on consultation process, they do not relate to tests that the AER must apply or what outcome the AER should seek in making and amending guidelines. There is no obligation for broader economic considerations, impacts to investment, competition, or the market or how these balance with any proposed benefits to be delivered to consumers. There is no requirement to ensure the effectiveness of the guidelines or to undertake any review.
Reposit Power argued that what was initially a clear delineation between the roles of the three energy market bodies had eroded over time:
Market body roles were clear and well respected creating a consistent, predictable and transparent regulatory environment. This served to lower the barriers to entry for competition to enter the market with new technology and new business models … Since 2016, however, the NEM’s regulatory environment has been eroded by inefficient regulation of the Australian Energy Market Operator (AEMO). This has forced Reposit Power and other Market Participants to invest heavily in alternative means by which to gain some regulatory certainty and to attempt to improve market operator efficiency.
The Australian Energy Council, an industry body representing 21 electricity and natural gas businesses operating in competitive markets, argued in its submission that ‘there should be broader consideration of the energy sector’s governance’.
The Energy Council suggests that it is not just the AER which needs clarity of role; it is important for the other market bodies, the AEMC and the AEMO to have their responsibilities and obligations made clear by the Government.
The Committee thanks submitters for their contribution to its work; however these broader questions of energy policy, the efficient operation of power markets, and the role of the other market bodies are outside the scope of this inquiry.
The Australian energy market is complex, and the legislation, regulations and rules governing it is equally complex. The AER therefore has a challenging task to ensure that generation and delivery of energy and the operation of energy markets remain as efficient as possible and deliver the best prices and outcomes possible for consumers.
The ANAO’s audit of the AER’s regulation of energy markets was largely positive. It found many areas in which the AER was effective and, while it made six recommendations, these appear to be predominantly focused on the improvement of generally sound regulatory processes.
The Committee notes that the AER accepted all six recommendations and provided details of its plans for their implementation. It commends the AER for its conduct throughout the audit, for its comprehensive responses to the ANAO’s recommendations, and for its open and receptive approach to this inquiry.
The Committee has no recommendations directed to the AER.