Economic Regulator Act 2009 (Tas)

Economic Regulator Act 2009 An Act to establish the Tasmanian Economic Regulator, to provide for investigations and inquiries into the pricing policies of certain Government bodies that are monopoly, or near monopoly, providers of services and goods in Tasmania, to provide for the setting of maximum prices chargeable by such bodies in respect of the supply of those services and goods, to provide for inquiries into matters relating to or affecting the pricing policies of certain Government bodies whether or not they are monopoly, or near monopoly, providers of services and goods, to provide for investigations into complaints of breaches of the national competition policy competitive neutrality principles, to provide for the monitoring of certain prices and certain activities of certain non-government bodies, to provide for inquiries relating to methodologies for setting taxi fares and to provide for related matters [Royal Assent 30 November 2009] Be it enacted by His Excellency the Governor of Tasmania, by and with the advice and consent of the Legislative Council and House of Assembly, in Parliament assembled, as follows: PART 1 - Preliminary 1. Short title This Act may be cited as the Economic Regulator Act 2009 . 2. Commencement This Act commences on a day to be proclaimed. 3. Interpretation (1) In this Act, unless the contrary intention appears – Acting Regulator means a person appointed under section 16 to act as the Regulator; Agency means an Agency within the meaning of the State Service Act 2000 , other than a Government Business Enterprise or statutory authority; amend means – (a) omit any matter; or (b) insert or add any matter; or (c) omit any matter and substitute any other matter; ancillary service means an ancillary service within the meaning of the National Electricity Rules; Assistant Regulator mean a person appointed under section 16A as Assistant Regulator; Cabinet record means a record which – (a) is referred to in section 24(1) of the Freedom of Information Act 1991 or section 26 of the Right to Information Act 2009 ; and (b) contains exempt information, within the meaning of that Act, to which that section applies; community service obligation means – (a) in respect of a monopoly provider that is a Government Business Enterprise, a community service obligation within the meaning of the Government Business Enterprises Act 1995 ; or (b) in respect of a monopoly provider that is an Agency, statutory authority, State-owned company or Local Government Body, a function, service or concession performed, provided or allowed, or proposed to be performed, provided or allowed, by the monopoly provider which, in the opinion of the Regulator, would not be performed, provided or allowed if the monopoly provider were a business in the private sector acting in accordance with sound commercial practice; complaint means a complaint made by a person under section 48 ; complaint investigation means an investigation into a complaint commenced by the Regulator under section 52 ; contract includes agreement and arrangement; council has the same meaning as in the Local Government Act 1993 ; dividend includes a dividend within the meaning of the Government Business Enterprises Act 1995 ; employee means a person who is, or whose services are, made available to the Regulator under section 17(1) or (2) ; enactment means – (a) an Act, order or other instrument of a legislative character; or (b) a provision of an Act, order or other instrument of a legislative character; final report means a final report prepared and provided under section 35 ; function includes duty; Government Business Enterprise has the same meaning as in the Government Business Enterprises Act 1995 ; Local Government Association of Tasmania means – (a) the Local Government Association of Tasmania continued as a body corporate by section 326 of the Local Government Act 1993 , whether or not that body has changed its name; and (b) if that body ceases to exist, any other body that has substantially the same purpose and performs substantially the same functions; Local Government Body means – (a) a council; or (b) a single authority, within the meaning of the Local Government Act 1993 ; or (c) a joint authority, within the meaning of the Local Government Act 1993 ; member of the Regulator means a person appointed as a member of the Regulator under section 15 ; ministerial charter has the same meaning as in the Government Business Enterprises Act 1995 ; monopoly provider means – (a) a body specified in column 2 of Schedule 1 ; or (b) a prescribed body which provides a monopoly service; monopoly provider investigation means an investigation that the Regulator is required, by the Minister under section 24 , to conduct into the pricing policies of a monopoly provider in respect of a monopoly service; monopoly service means a service declared under section 6 to be a non-prescribed monopoly service or a prescribed monopoly service; national competition policy competitive neutrality principles means – (a) the principles set out in clause 3 of the agreement called the "Competition Principles Agreement" entered into by the governments of the Commonwealth and each State and Territory on 11 April 1995, as amended or substituted from time to time; or (b) any policies adopted by the State for the purpose of complying with or giving effect to the principles referred to in paragraph (a) ; National Electricity Rules has the same meaning as in the National Electricity Law which is contained in the schedule (as amended from time to time) to the National Electricity (South Australia) Act 1996 of South Australia; non-prescribed monopoly service means a service declared under section 6 to be a non-prescribed monopoly service; Portfolio Act means – (a) in respect of a monopoly provider that is a Government Business Enterprise or a statutory authority, the enactment by or under which that Government Business Enterprise or statutory authority is established or continued, together with any other enactment that is incorporated with or required to be read as one with that enactment; or (b) in respect of a monopoly provider that is a Local Government Body, the Local Government Act 1993 ; Portfolio Minister – (a) in respect of an Agency, means the Minister to whom the Agency is assigned; or (b) in respect of a statutory authority or Government Business Enterprise constituted or continued by or under an Act or a provision of an Act, means the Minister to whom the administration of that Act or provision is assigned; or (c) in respect of a statutory authority or Government Business Enterprise not established, constituted or continued by or under an Act or a provision of an Act, means the Minister to whom the administration of the statutory authority or Government Business Enterprise is assigned; or (d) in respect of a Local Government Body, means the Minister to whom the administration of the Local Government Act 1993 is assigned; or (e) in respect of a State-owned company, means the Minister to whom the administration of the Act requiring or authorising the formation of the company is assigned; prescribed body means – (a) an Agency; or (b) a Government Business Enterprise; or (c) a statutory authority; or (d) a State-owned company; or (e) a Local Government Body; prescribed body inquiry means an inquiry that the Regulator is directed, by the Minister under section 39(1) , to conduct in respect of the pricing policies of a prescribed body; prescribed monopoly service means a service declared under section 6 to be a prescribed monopoly service; price includes charge and tariff; pricing policies includes policies relating to the level or structure of prices for services; pricing policy determination means a determination made under section 38(1)(b) ; pricing policy order means an order made under section 36(3)(b) ; Regulator means the Tasmanian Economic Regulator appointed under section 9 ; service includes – (a) the provision of public transport; and (b) the making available for use of facilities of any kind; and (c) the conferring of rights, benefits or privileges for which a price is payable in the form of a tribute, levy or similar exaction; and (d) the supply of any other good or service declared under section 5 to be a service – but does not include a water or sewerage service, an ancillary service or other service related to the supply of, or security of the supply of, electricity, or any good or service for which a State charge is payable; State charge means – (a) a tax, or duty, imposed for the public revenue purposes of the State; or (b) a payment, in the form of a royalty, payable to the Crown, a Government Business Enterprise or State-owned company for the exclusive right to access and market a natural resource; State-owned company means a company incorporated under the Corporations Act which is controlled by the Crown, a Government Business Enterprise or a statutory authority or by another company which is so controlled; statutory authority means an incorporated or unincorporated body which is established, constituted or continued by or under an Act or under the royal prerogative, being a body which, or of which the governing authority, wholly or partly comprises a person or persons appointed by the Governor, a Minister of the Crown or another statutory authority; statutory rule has the same meaning as in the Rules Publication Act 1953 ; supply includes provide; tax equivalent means an income tax equivalent, within the meaning of the Government Business Enterprises Act 1995 ; taxi fare methodology inquiry means an inquiry the Regulator is directed, by the Minister under section 44 , to conduct into appropriate methodologies in respect of setting taxi fares; terms of reference means the terms of reference contained in a requirement made under section 24 ; Transport Commission means the Transport Commission incorporated under section 4 of the Transport Act 1981 . (2) For the purposes of the definition of "State-owned company" in subsection (1) , the provisions of the Corporations Act relating to control are taken to apply as if the Crown, Government Business Enterprise or statutory authority, as the case may be, were a corporation under that Act. 4. Maximum prices defined Maximum prices may be expressed in one or more of the following terms: (a) maximum prices or the maximum rate of increase or the minimum rate of decrease in maximum prices; (b) average prices or average rates of increase or decrease in such average prices; (c) pricing policies or principles; (d) by reference to a general price index, the cost of production, revenue, a rate of return on assets or any other factor; (e) by reference to quantity, location or period of supply of a monopoly service; (f) any other terms the Regulator or the Minister, as the case requires, considers appropriate. 5. Declaration of service (1) By notice published in the Gazette, the Minister may declare the supply of a good or service to be a service. (2) By notice published in the Gazette, the Minister may amend or revoke a declaration made under subsection (1) . (3) A notice under this section is not a statutory rule. 6. Declaration of monopoly service (1) By notice published in the Gazette, the Minister may declare a service supplied by a prescribed body to be a non-prescribed monopoly service, or a prescribed monopoly service, if – (a) the Minister is satisfied that it is a service for which – (i) there are no other suppliers to provide competition in the relevant market; and (ii) there is no contestable market by potential suppliers in the short term; and (b) the Portfolio Minister has agreed to the making of the declaration. (2) Despite subsection (1) , the Minister may not declare a service to be a prescribed monopoly service under that subsection unless the service is provided by a monopoly provider specified in Schedule 1 . (3) A declaration under subsection (1) may specify the day by which the Minister is to require the Regulator to conduct his or her first investigation under section 24(2) or (3) into the pricing policies of a monopoly provider in respect of the service which is the subject of the declaration. (4) Before making a declaration under subsection (1) in respect of a service supplied by one or more Local Government Bodies, the Minister is to consult with such of those Local Government Bodies as the Minister considers appropriate. (5) By notice published in the Gazette, the Minister may amend or revoke a declaration made under subsection (1) if the Portfolio Minister of the prescribed body which is the subject of the declaration has agreed to it. (6) A notice under this section is not a statutory rule. 7. Act binds Crown This Act binds the Crown in right of Tasmania and, so far as the legislative power of Parliament permits, in all its other capacities. 8. Inconsistency between this Act and another Act If a provision of this Act is inconsistent with a provision of a Portfolio Act or any other Act, the provision of this Act prevails and the provision of the Portfolio Act or other Act is, to the extent of the inconsistency, invalid except where the Portfolio Act or other Act expressly provides otherwise. PART 2 - Tasmanian Economic Regulator Division 1 - Tasmanian Economic Regulator 9. Tasmanian Economic Regulator (1) The Minister is to appoint a person to be the Tasmanian Economic Regulator. (2) The Regulator – (a) is a corporation sole; and (b) has a seal; and (c) may sue and be sued in his or her corporate name. (3) The seal is to be kept and used as authorised by the Regulator. (4) All courts and persons acting judicially must take judicial notice of the imprint of the seal on a document and presume that the document was duly sealed by the Regulator. (5) All courts and persons acting judicially are to take judicial notice of – (a) the official signature of a person who is or has been the Regulator; and (b) the fact that the person holds or has held the office of Regulator. (6) Division 2 of this Part has effect in relation to the Regulator. (7) Before performing any function or exercising any power under this Act, or any other Act, the Regulator is to have regard to the costs and benefits of the Regulator's actions. (8) Despite subsection (7) , the Regulator – (a) may perform any function or exercise any power under this Act, or any other Act, regardless of the costs or benefits of the action; and (b) is not required to give, to any person, reasons for so performing the function or exercising the power. 10. Functions of Regulator The Regulator has the following functions: (a) to conduct monopoly provider investigations and provide a final report in respect of each such investigation; (b) to conduct prescribed body inquiries and provide a report in respect of each such inquiry; (c) to conduct taxi fare methodology inquiries and provide a report in respect of each such inquiry; (d) to conduct complaint investigations and, if required under section 57 , to provide a report in respect of a complaint investigation; (e) other functions imposed on the Regulator under this or any other Act. 11. Powers of Regulator generally The Regulator has the following powers: (a) to enter into contracts; (b) to appoint agents, attorneys and consultants; (c) to act as a consultant or agent, including in respect of the monitoring of prices of petroleum products; (d) to set charges, terms and conditions relating to the performance and exercise of his or her functions and powers; (e) to do all other things he or she is authorised to do under this or any other Act; (f) to do all things necessary or convenient to be done in connection with the performance and exercise of his or her functions and powers. 12. Power to publish guidelines The Regulator may publish guidelines relating to the performance and exercise of his or her functions and powers. 13. Delegation The Regulator may delegate to an employee any of his or her functions or powers under this or any other Act, other than – (a) this power of delegation; and (b) the function of providing a final report; and (c) the function of approving a determination or amendment relating to prices under section 37 . 14. Regulator not subject to Ministerial control Except as otherwise provided by or under this or any other Act, the Regulator is not subject to the control or direction of the Minister or any other Minister in respect of a monopoly provider investigation, prescribed body inquiry, complaint investigation, taxi fare methodology inquiry, report or recommendation under this Act. Division 2 - Appointment of Regulator &c. 15. Terms of office of Regulator (1) The Regulator may be appointed for a term of not more than 5 years as specified in his or her instrument of appointment and may be reappointed. (2) For the purposes of this Part, the Regulator is absent from the office of Regulator if he or she – (a) is absent from duty; or (b) has vacated, within the meaning of section 16D , the office of Regulator; or (c) has a direct or indirect interest (pecuniary or otherwise) in a matter being or about to be considered by the Regulator; or (d) is otherwise unable to perform the functions of the office of Regulator. 16. Acting Regulator (1) The Minister may appoint a person as Acting Regulator to act as the Regulator during any particular, or every, period during which the Regulator is absent. (2) The appointment of an Acting Regulator is subject to, and has effect in accordance with, the terms and conditions (including remuneration and allowances) specified in the instrument of appointment. (3) If a vacancy, within the meaning of section 16D , occurs in the office of Regulator while a person appointed under this section is acting as the Regulator, that person may continue to so act until a person is appointed as Regulator under section 9 . (4) While a person is acting as the Regulator in accordance with this section, he or she is taken to be the Regulator. 16A. Assistant Regulator (1) The Minister may appoint a person as Assistant Regulator to perform a specific function of the Regulator as specified in the instrument of appointment. (2) The appointment of a person under subsection (1) – (a) is for the period required to complete the function specified in the instrument of appointment; and (b) is subject to, and has effect in accordance with, the terms and conditions (including remuneration and allowances) specified in the instrument of appointment. (3) While a person is acting as an Assistant Regulator in accordance with this section, that person – (a) is, subject to paragraph (b) , taken to be the Regulator in respect of the specific function the person has been appointed to perform; and (b) may only make a determination or decision as the Regulator if that determination or decision has been agreed to by the Regulator or Acting Regulator. (4) Nothing in this section prevents the Regulator, or Acting Regulator, from performing a function that an Assistant Regulator has been appointed to perform. 16B. Qualifications for appointment (1) In appointing a person to be the Regulator, the Acting Regulator or an Assistant Regulator, the Minister is to be satisfied that the person has knowledge of, or experience in – (a) industry, commerce, economics, law or public administration; or (b) the regulation of utilities or the provision of services by a monopoly provider or other utility. (2) The State Service Act 2000 does not apply in relation to the Regulator, the Acting Regulator or an Assistant Regulator in his or her capacity as such. (3) A person may hold, but is not required to hold, the office of Regulator, Acting Regulator or Assistant Regulator in conjunction with State Service employment. 16C. Remuneration and conditions of appointment (1) A person appointed as the Regulator, the Acting Regulator or an Assistant Regulator is entitled to be paid such remuneration and allowances as the Minister determines. (2) A person appointed as the Regulator, the Acting Regulator or an Assistant Regulator who is also a State Service employee or State Service officer is not entitled to remuneration or allowances under this section except with the approval of the Minister administering the State Service Act 2000 . (3) A person appointed as the Regulator, the Acting Regulator or an Assistant Regulator holds office on such conditions in relation to matters not provided for by this Act as are specified in the person's instrument of appointment. 16D. Vacation of office (1) The Regulator, the Acting Regulator or an Assistant Regulator is taken to have vacated his or her office if he or she – (a) dies; or (b) becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with his or her creditors, or makes an assignment of his or her remuneration or estate for their benefit; or (c) resigns his or her office by writing under his or her hand addressed to the Minister and the Minister accepts the resignation; or (d) is removed from office by the Minister under subsection (2) . (2) The Minister may remove a person from the office of Regulator, Acting Regulator or Assistant Regulator if the Minister is satisfied that the person – (a) is absent from that office – (i) otherwise than in accordance with the person's instrument of appointment to that office; or (ii) without the permission of the Minister; or (b) is convicted, in Tasmania or elsewhere, of a crime or an offence punishable by imprisonment for a term of 12 months or longer; or (c) is convicted of an offence under this Act; or (d) is unable to adequately perform the duties of office. 16E. Disclosure of interest (1) If a person appointed to the office of Regulator, Acting Regulator or Assistant Regulator has a direct or indirect interest (pecuniary or otherwise) in a matter that is about to be considered by the person in his or her capacity as Regulator, Acting Regulator or Assistant Regulator, the person must disclose the nature of the interest to the Minister as soon as practicable after the relevant facts come to the person's knowledge. Penalty: Fine not exceeding 50 penalty units. (2) Unless the Minister otherwise determines, a person who has made a disclosure under subsection (1) in relation to a matter must not – (a) be present during any consideration of, or the making of a decision in relation to, the matter under this Act or during any other proceeding in relation to the matter under this Act; or (b) take part in any consideration of, or the making of a decision in relation to, the matter. (3) Subsection (1) does not apply in respect of an interest that consists only of the receipt of a service that – (a) is also available to members of the public; and (b) is made available on the same terms as apply to members of the public. 16F. Validation of proceedings, &c. (1) No act or proceeding of the Regulator, the Acting Regulator or an Assistant Regulator or any person acting under the direction of the Regulator is invalidated or prejudiced by reason only of the fact that, at the time when the act or proceeding was done, taken or commenced, there was a vacancy in the office of Regulator. (2) All acts and proceedings of the Regulator, the Acting Regulator or an Assistant Regulator or of a person acting under a direction of the Regulator are, despite the subsequent discovery of a defect in the appointment of the Regulator, the Acting Regulator or the Assistant Regulator, as valid as if the Regulator, the Acting Regulator or the Assistant Regulator had been duly appointed and was qualified to act as, or was capable of being, the Regulator, the Acting Regulator or an Assistant Regulator. 16G. Presumptions In any proceedings by or against the Regulator, unless evidence is given to the contrary, proof is not required of the appointment of the Regulator, the Acting Regulator or an Assistant Regulator. Division 3 - Staff, assistance and facilities 17. Staff of Regulator (1) The Regulator may arrange with the Secretary of the Department for State Service officers and State Service employees employed in the Department to be made available to enable the Regulator to perform and exercise his or her functions and powers. (2) On the written request of the Regulator, the Secretary of the Department may arrange with another Head of a State Service Agency for State Service officers and State Service employees employed in that Agency, or with an employer for the services of a person employed by that employer, to be made available to the Regulator for the purpose of enabling the Regulator to perform and exercise his or her functions and powers. (3) State Service officers and State Service employees made available under subsection (1) or (2) may serve the Regulator in conjunction with State Service employment. (4) All expenses associated with the use by the Regulator of the services of a person referred to in subsection (1) or (2) are to be met by the Regulator. 18. Assistance and facilities (1) The Regulator may arrange with one or more of the following persons to provide assistance to the Regulator to enable the Regulator to perform and exercise his or her functions and powers: (a) a Head of an Agency; (b) a Government Business Enterprise, statutory authority or State-owned company if approved by the Minister and Portfolio Minister, in writing; (c) a Local Government Body if approved, in writing, by the Minister and the Minister to whom the administration of the Local Government Act 1993 is assigned; (d) a body, or the governing authority of a body, that has price-fixing functions or functions similar to those of the Regulator. (2) The Regulator may make arrangements with one or more of the following persons for facilities to be provided to the Regulator to enable the Regulator to perform and exercise his or her functions and powers: (a) the Secretary of the Department; (b) the Head of another Agency; (c) a Government Business Enterprise; (d) a Local Government Body; (e) a statutory authority; (f) a State-owned company. Division 4 - Finances of Regulator 19. Funds (1) The funds of the Regulator consist of – (a) all money received by the Regulator in the course of performing his or her functions and exercising his or her powers; and (b) money appropriated by Parliament for the purposes of the Regulator; and (c) all other money received by the Regulator from any other source. (2) The funds of the Regulator are to be paid into an account in the Public Account. (3) Money standing to the credit of the account in the Public Account may be applied – (a) in the payment or discharge of the expenses, charges and obligations incurred or undertaken by the Regulator in the performance and the exercise of his or her functions and his or her powers; and (b) in the payment of the remuneration and allowances of the Regulator, the Acting Regulator or an Assistant Regulator; and (c) in meeting the expenses incurred by the Regulator in respect of – (i) the use of the services of persons referred to in section 17(1) and (2) ; and (ii) the assistance provided under section 18(1) ; and (iii) the use of facilities referred to in section 18(2) ; and (d) in the payment of allowances and expenses under section 29(2) ; and (e) in any other manner authorised or required under this or any other Act. 20. Costs of monopoly provider investigations (1) In this section – estimated resident population, in respect of a municipal area, means the most recent estimated resident population for that area published from time to time by the Australian Statistician under the Census and Statistics Act 1905 of the Commonwealth; investigated monopoly service means a monopoly service which is the subject of a monopoly provider investigation. (2) A monopoly provider that supplies an investigated monopoly service is liable for the whole or part of the reasonable expenses incurred by the Regulator arising from the conduct and reporting of the monopoly provider investigation (including expenses incurred in making a final report available to the public) as jointly determined by the Minister and Portfolio Minister by written notice provided to the Regulator and the monopoly provider. (3) If an investigated monopoly service is supplied by 2 or more Local Government Bodies, all of which are councils, the amount of the expenses each council is liable to pay is to be determined in accordance with the following formula: where – A is the amount to be paid by a council; P is the estimated resident population of the municipal area in respect of which the council was established; TA is the total amount determined under subsection (2) to be payable by all the councils supplying the investigated monopoly service; TP is the total of the estimated resident populations of all the municipal areas in respect of which all those councils were established. (4) If more than one council supplies the investigated monopoly service, the amount of the expenses determined to be payable by each council is to be specified in the notice provided under subsection (2) . (5) If a monopoly provider which is a Local Government Body is liable to pay the whole or part of the expenses referred to in subsection (2) , the Minister is to provide a copy of the notice referred to in that subsection to the Local Government Association of Tasmania. (6) The Regulator may recover the expenses referred to in subsection (2) as a debt due to the Regulator in a court of competent jurisdiction. 21. Financial statements (1) The financial statements of the Regulator are to – (a) be p