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Schedule 1—Abolition of limited merits review

Schedule 1 Abolition of limited merits review

Part 1 Amendments

Competition and Consumer Act 2010

1  Subsection 44AI(1)

Omit “A State/Territory energy law”, substitute “Subject to section 44AIA, a State/Territory energy law”.

2  After section 44AI

Insert:

44AIA   No merits review of AER decisions

                   A decision of the AER under a State/Territory energy law or local energy instrument is not to be subject to merits review (however described) by a body established under a law of a State or Territory.

3  Subsection 44ZZM(1)

Omit “A State or Territory access regime law”, substitute “Subject to section 44ZZMAA, a State or Territory access regime law”.

4  After section 44ZZM

Insert:

44ZZMAA   No merits review by Tribunal of decisions under energy laws

             (1)  This section applies if a State/Territory energy law or the Australian Energy Market Act 2004 purports to confer a function or power, or to impose a duty, in relation to a decision made under:

                     (a)  a State/Territory energy law; or

                     (b)  a uniform energy law applied as a law of the Commonwealth under the Australian Energy Market Act 2004 .

However, this section does not apply in relation to a decision relating to the disclosure of confidential or protected information under such a law.

             (2)  The purported conferral or imposition has no effect to the extent to which it would require or permit merits review (however described) of the decision by the Tribunal.

             (3)  This section applies despite anything in any law of the Commonwealth, a State or a Territory.

Part 2 Application and transitional

5  Application—insertion of section 44AIA

            The amendment made by Part 1 of this Schedule to insert section 44AIA of the Competition and Consumer Act 2010 applies in relation to a decision that is made before, on or after the commencement of this Schedule.

6  Application—insertion of section 44ZZMAA

(1)       The amendment made by Part 1 of this Schedule to insert section 44ZZMAA of the Competition and Consumer Act 2010 applies in relation to a decision made before, on or after the commencement of this Schedule, subject to subitem (2).

(2)       The amendment does not apply in relation to a decision if an application for merits review of the decision by the Tribunal was made before 21 June 2017.

(3)       However, subitem (2) does not prevent the amendment applying in relation to a decision covered by subsection 44ZZMAA(1) of that Act (as inserted by this Act) if the decision is made on the remittal of a matter by the Tribunal.

Note:       A matter may be remitted by the Tribunal following merits review by the Tribunal of such a decision if an application for merits review was made before 21 June 2017. Subitem (3) prevents an application for merits review by the Tribunal of the decision on the remitted matter.