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Schedule 2—AER information gathering

Schedule 2 AER information gathering


Competi tion and Consumer Act 2010

1  Section 44AH

Before “The”, insert “(1)”.

2  At the end of section 44AH


             (2)  Regulations made for the purposes of paragraph (1)(b) may empower the AER to make legislative instruments.

             (3)  Section 42 (disallowance) of the Legislation Act 2003 does not apply to legislative instruments empowered by regulations made for the purposes of paragraph (1)(b).

             (4)  Subsection (3) has effect subject to any express provision to the contrary in the regulations.

3  After subsection 44AAF(3)


          (3A)  If the AER is satisfied that particular information will enable or assist an entity covered by subsection (3B) to perform or exercise any of the entity’s functions or powers, disclosing the information to the entity is authorised use and disclosure of the information.

          (3B)  The entities are as follows:

                     (a)  a Department;

                     (b)  a body (whether incorporated or not) established or appointed for a public purpose by or under a law of the Commonwealth;

                     (c)  a body established or appointed by the Governor-General, or by a Minister, otherwise than by or under a law of the Commonwealth;

                     (d)  the holder of an office established for public purposes by or under a law of the Commonwealth.

4  Subsections 44AAF(4) and (5)

After “subsection (3)”, insert “or (3A)”.

5  After section 44AAF


44AAFA   Power of AER to obtain information and documents

Notice requiring information etc.

             (1)  This section applies if the AER has reason to believe that a person is capable of providing information, producing a document or giving evidence that the AER requires for the performance of the functions referred to in section 44AH (Commonwealth functions).

             (2)  The AER may, by written notice given to the person, require the person to do one or more of the following:

                     (a)  give such information to the AER;

                     (b)  produce any such documents to the AER;

                     (c)  appear before the AER, or before a specified person assisting the AER who is an SES employee or an acting SES employee, to give any such evidence (either orally or in writing) and produce any such documents.

             (3)  The notice must specify:

                     (a)  if paragraph (2)(a) or (b) applies:

                              (i)  the period within which the person must comply with the notice; and

                             (ii)  the manner in which the person must comply with the notice; or

                     (b)  if paragraph (2)(c) applies:

                              (i)  the time at which the person must appear before the AER or person; and

                             (ii)  the place at which the person must appear before the AER or person.

Oath or affirmation

             (4)  The AER may require the evidence given under paragraph (2)(c) to be given on oath or affirmation. For that purpose, an AER member or a person assisting the AER may administer the oath or affirmation.

44AAFB   Failure to comply with notice to give information etc. is an offence


             (1)  A person commits an offence if:

                     (a)  the person is given a notice under section 44AAFA; and

                     (b)  the person fails to comply with the notice.

Penalty:  Imprisonment for 2 years or 100 penalty units, or both.


             (2)  Subsection (1) does not apply to the extent that the person is not capable of complying with the notice.

Note:          A defendant bears an evidential burden in relation to the matters in this subsection (see subsection 13.3(3) of the Criminal Code ).

             (3)  Subsection (1) does not apply to the extent that:

                     (a)  the notice relates to producing documents; and

                     (b)  the person proves that, after a reasonable search, the person is not aware of the documents; and

                     (c)  the person provides a written response to the notice, including a description of the scope and limitations of the search.

Note:          A defendant bears a legal burden in relation to the matter in paragraph (3)(b) (see section 13.4 of the Criminal Code ).

             (4)  For the purposes of (but without limiting) paragraph (3)(b), a determination of whether a search is reasonable may take into account the following:

                     (a)  the nature and complexity of the matter to which the notice relates;

                     (b)  the number of documents involved;

                     (c)  the ease and cost of retrieving a document relative to the resources of the person who was given the notice;

                     (d)  any other relevant matter.

44AAFC   AER may inspect, copy and retain documents

             (1)  A member of the AER, or a person authorised by a member of the AER, may inspect a document produced under section 44AAFA and may make and retain copies of such a document.

             (2)  The AER may take, and retain for as long as is necessary, possession of a document produced under section 44AAFA.

             (3)  The person otherwise entitled to possession of the document is entitled to be supplied, as soon as practicable, with a copy certified by a member of the AER to be a true copy.

             (4)  The certified copy must be received in all courts and tribunals as evidence as if it were the original.

             (5)  Until a certified copy is supplied, the AER must, at such times and places as the AER thinks appropriate, permit the person otherwise entitled to possession of the document, or a person authorised by that person, to inspect and make copies of the document.

6  At the end of section 51AE


             (3)  If regulations prescribe an industry code that applies to one or more entities that are authorised by or under a law of the Commonwealth or of a State or Territory to sell electricity, the regulations may make provision in relation to a matter by applying, adopting or incorporating, with or without modification, any matter contained in an instrument or other writing as in force or existing from time to time.

             (4)  Subsection (3) applies despite subsection 14(2) of the Legislation Act 2003 .

7  Subparagraph 79A(1)(a)(i)

After “section”, insert “44AAFB,”.

8  Paragraph 79A(1)(d)

Omit “or the Commission,”, substitute “, the Commission or (in the case of an offence against section 44AAFB) the AER”.

9  Subsection 163(5)

After “section”, insert “44AAFB,”.