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

Publication date: Friday, 29th January 2021.

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 three 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.

Update: This consultation is closed and all submissions have been published below.

Update: 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.

Files

File nameSize
File Final - Civil Penalties Decision Matrix and Concepts Table_Jan 2021.docx134.12 KB
PDF icon Final - Civil Penalties Decision Matrix and Concepts Table_Jan 2021.pdf184.61 KB
File Final - NEL Civil Penalty Provision Tiers_Jan 2021.docx17.6 KB
PDF icon Final - NEL Civil Penalty Provision Tiers_Jan 2021.pdf129.8 KB
File Final - NER Civil Penalty Provision Tiers_Jan 2021.docx86.17 KB
PDF icon Final - NER Civil Penalty Provision Tiers_Jan 2021.pdf677.14 KB
File Final - NERL Civil Penalty Provision Tiers_Jan 2021.docx18.13 KB
PDF icon Final - NERL Civil Penalty Provision Tiers_Jan 2021.pdf425.45 KB
File Final - NERR Civil Penalty Provision Tiers_Jan 2021.docx25.2 KB
PDF icon Final - NERR Civil Penalty Provision Tiers_Jan 2021.pdf455.7 KB
File Final - NGL Civil Penalty Provision Tiers_Jan 2021.docx19.58 KB
PDF icon Final - NGL Civil Penalty Provision Tiers_Jan 2021.pdf428.84 KB
File Final - NGR Civil Penalty Provision Tiers_Jan 2021.docx31.57 KB
PDF icon Final - NGR Civil Penalty Provision Tiers_Jan 2021.pdf477.65 KB
File Energy Senior Officials response to public submissions.docx40.64 KB
PDF icon Energy Senior Officials response to public submissions.pdf580.64 KB
File Consultation Guide - Reform of the AER Civil Penalty Regime41.31 KB
PDF icon Consultation Guide - Reform of the AER Civil Penalty Regime178.6 KB
PDF icon NEL Civil Penalties - Concepts Table 131.28 KB
File NEL - Civil Penalties - Concepts Table70.96 KB
PDF icon NEL - Civil Penalties - Decision Matrix 68.32 KB
File NEL - Civil Penalties - Decision Matrix121.84 KB
PDF icon NEL & NER Classification of Tiers 1.29 MB
File NEL & NER Classification of Tiers 75.8 KB
PDF icon NGL & NGR Classification of Tiers448.65 KB
File NGL & NGR Classification of Tiers65.24 KB
PDF icon NERL & NERR Classification of Tiers1016.67 KB
File NERL & NERR Classification of Tiers41.87 KB
File 2-EWOQ Submission - Proposed Classification of Tiers - Civil Penalty Amendments.docx26.87 KB
PDF icon 2-EWOQ Submission - Proposed Classification of Tiers - Civil Penalty Amendments.pdf62.37 KB
File 3-AER submission - Proposed Classification - August.docx32.84 KB
PDF icon 3-AER submission - Proposed Classification - August.pdf300.83 KB
File 4-EWON submission - Proposed Classification of Tiers for the reform of the Civil Penalty Regime.docx51.6 KB
PDF icon 4-EWON submission - Proposed Classification of Tiers for the reform of the Civil Penalty Regime.pdf158.07 KB
File 5-CitiPower Powercor and United Energy submission v1.0.docx57.19 KB
PDF icon 5-CitiPower Powercor and United Energy submission v1.0.pdf431.57 KB
File 6-EEQ submission to AER_Reform of Civil Penalty Regime 200810.docx30.23 KB
PDF icon 6-EEQ submission to AER_Reform of Civil Penalty Regime 200810.pdf168.85 KB
File 7-AEC Submission to COAG Energy Council reforms to AER civil penalty regime.docx29.68 KB
PDF icon 7-AEC Submission to COAG Energy Council reforms to AER civil penalty regime.pdf140.2 KB
File 8-APA submission to AER Review of civil penalties regime.docx31.67 KB
PDF icon 8-APA submission to AER Review of civil penalties regime.pdf129.38 KB
File 9-Origin Energy submission_Classification of Tiers for the reform of the AER Civil Penalty Regime.docx22.78 KB
PDF icon 9-Origin Energy submission_Classification of Tiers for the reform of the AER Civil Penalty Regime.pdf77.47 KB
File 10-ACCC submission_COAG Energy Council Proposed Classification of Tiers.docx33.98 KB
PDF icon 10-ACCC submission_COAG Energy Council Proposed Classification of Tiers.pdf125.58 KB
File 11-EnergyAustralia submission - Civil penalties August 2020 FINAL.docx45.83 KB
PDF icon 11-EnergyAustralia submission - Civil penalties August 2020 FINAL.pdf234.95 KB
File 12-AGIG submision_penalty tiers.docx56.31 KB
PDF icon 12-AGIG submision_penalty tiers.pdf393.34 KB
File 13-APGA submission to AER_Reform of Civil Penalty Regime 200810.docx42.77 KB
PDF icon 13-APGA Submission - Proposed Classification of Tiers_AER Civil Penalty Regime.pdf288.35 KB
File 14a-AGL cover letter submission to proposed classification of the penalty tiers.docx22.26 KB
PDF icon 14a-AGL cover letter submission to proposed classification of the penalty tiers.pdf99.08 KB
File 14b-AGL submission to AER_Reform of Civil Penalty Regime 200810.docx25.12 KB
PDF icon 14b-AGL submission_Penalty tiers classification submission.pdf247.46 KB

Council Priority Issue