AUSTRALIA Law and Practice Contributed by: Alexander Danne, Roy Groom, Rohit Venkat and Georgia Summerhill, Clayton Utz
• Part IV, which prohibits cartel conduct, anti-com- petitive agreements, misuse of market power (Sec- tion 46) and exclusive dealing; and • Section 50 and Part IVA, which prohibit mergers and acquisitions that would substantially lessen competition. The NER contain additional market-specific prohibi- tions, including clause 3.8.22A which prohibits the making of false and misleading offers in the wholesale spot market. Surveillance Bodies and Powers The ACCC is the primary enforcement body for anti- competitive conduct under the CCA. Its investigative powers include: • issuing Section 155 notices to compel the produc- tion of documents and information; • examining witnesses under oath; • conducting searches of premises (with warrant); and • commencing proceedings in the Federal Court for contraventions of the CCA. The ACCC publishes annual Electricity Market Moni- toring reports examining pricing conduct, market structure and competitive dynamics across the NEM. The AER monitors NEM participant conduct under the NER and investigates breaches of bidding and rebidding rules. Its enforcement tools include issuing infringement notices, accepting enforceable undertak- ings and seeking civil penalties through the Federal Court. The AEMO monitors dispatch and pricing outcomes in real time and refers suspected misconduct to the AER for investigation. In Western Australia, the Economic Regulation Author- ity has oversight of conduct within the WEM. Penalties Civil penalties for anti-competitive conduct under the CCA are significant: up to the greater of AUD100 mil- lion, three times the benefit obtained, or 30% of the corporation’s Australian turnover during the relevant
period. NER civil penalty provisions apply separately for market misconduct, with the AER able to seek penalties through the Federal Court. 3. Generation Facilities 3.1 Constructing and Operating Generation Facilities The construction and operation of generation facilities in Australia is governed by an intersecting framework of national energy laws, Commonwealth environmen- tal legislation and state-based planning and licensing regimes. At national level, any party seeking to construct and operate a generation facility connected to the NEM must register with the AEMO as a generator under the National Electricity Rules. The NER prescribe techni- cal performance standards, connection requirements and ongoing obligations for registered participants. In Western Australia, generators connecting to the SWIS must register under the WEM Rules administered by the AEMO. State and territory planning legislation provides the primary approval pathway for the physical construc- tion of generation infrastructure. Each jurisdiction maintains its own planning framework, for example, the Environmental Planning and Assessment Act 1979 (NSW), the Planning and Environment Act 1987 (VIC), and the Planning Act 2016 (QLD). Large-scale generation projects are typically assessed as State Significant Developments or equivalent major project categories, depending on their capacity and location. At Commonwealth level, the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act) applies where a project may have a significant impact on matters of national environmental signifi- cance, such as listed threatened species, wetlands of international importance or World Heritage proper- ties. A referral to the Commonwealth Minister for the Environment is required in such cases. Additional regulatory requirements vary by generation technology. Thermal generators require pollution and emissions licences under state environmental protec-
19
CHAMBERS.COM
Powered by FlippingBook