Energy and Climate Change Ministerial Council

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Proposed Classification of Tiers for the reform of the Australian Energy Regulator Civil Penalty Regime

Publication date

The Statutes Amendment (National Energy Laws) (Penalties and Enforcement) Bill 2020, agreed to by the Energy Ministers on 20 March 2020, is an important step in the reform of energy policy. This Bill is currently with the South Australian Parliament awaiting passage.

The Bill will amend the National Electricity Law, National Gas Law and National Energy Retail Law (National Energy Laws) to provide for increased civil penalties through the implementation of a three tier penalty structure.

Reforming the Australian Energy Regulator’s civil penalty regime and powers establishes a more flexible and sophisticated penalty regime, akin to that of the Australian Consumer Law. Increasing the maximum penalties and providing for periodic indexation of those penalties will strengthen and expand the legal tools available to the Australian Energy Regulator to carry out its role.

The overarching purpose of a civil penalty regime is to promote public interest in compliance with the law. This is achieved through the imposition of penalties which are sufficient to deter contravening behaviour.

A draft Decision Matrix and Concept Table was developed to assist officials, market bodies and other stakeholders assess the range of civil penalties under National Energy Laws. These tools are designed to appropriately classify both current and future civil penalty provisions under a 3-tiered penalty regime.

The tools were tested by an expert working group who used them to reclassify current civil penalty provisions under the National Energy Laws, to produce a draft Classification of Tiers.

We welcome feedback on the draft Classification of Tiers, Decision Matrix and Concept Table, by answering the questions and submitting your comments using the link below.

  1. Do the Decision Matrix and Concept Table provide sufficiently clear direction about which penalty tier to apply?

  2. Are the key objectives of the National Energy Objectives reflected in the Decision Matrix and Concept Table?

  3. Do you have any suggestions that may improve the Decision Matrix or Concept Table?

  4. Are the Decision Matrix and Concept Table applied consistently in the Classification of Tiers?

  5. Are there any proposed classifications of particular civil penalty provisions that you strongly agree or strongly disagree with? If so, which provision/s and why?

  6. Are there other matters related to the civil penalty regime you would like us to take into consideration?

Please refer to the Consultation Guide for further details.

Updates

This consultation is closed and all submissions are published below.

Completion of the reform of the Australian Energy Regulator Civil Penalty Regime

The Statutes Amendment (National Energy Laws) (Penalties and Enforcement) Act 2020 (Act), was given Royal Assent on 22 October 2020 and together with the amended National Energy Regulations, came into force by Proclamation on 29 Jan 2021.

On 07 Jan 2021, Energy Ministers agreed, via out of session vote, to:

  • the classification of individual civil penalty provisions (CPPs) within the National Electricity Law, National Energy Retail Law, National Gas Law, and associated Rules
  • the National Energy Amendment Regulation (Civil Penalties) 2020 that apply a penalty tier to each CPP (not published)
  • the Decision Matrix and Concepts table as a tool for classifying current and future CPPs

Energy Senior Officials have also released a statement in response to the public consultation on the civil penalty reforms in July 2020.

Energy Ministers priority issue