Independent Pricing and Regulatory Tribunal Act 1992 (NSW)

Independent Pricing and Regulatory Tribunal Act 1992 No 39 An Act to establish the Independent Pricing and Regulatory Tribunal of New South Wales; to confer functions on the Tribunal in relation to pricing, industry and competition; and for other purposes. Part 1 Preliminary 1 Name of Act This Act is the Independent Pricing and Regulatory Tribunal Act 1992. 2 Commencement This Act commences on a day or days to be appointed by proclamation. 3 Definitions (1) In this Act— access regime means a scheme (whether of a legislative, administrative or other kind) set up for the purpose of implementing the Competition Principles Agreement in respect of third-party access to services provided by means of infrastructure facilities owned, controlled or operated by a public or private sector body, where service— (a) includes the use of an infrastructure facility (such as a road or railway), the handling or transporting of things (such as goods or people) or a communications service or similar service, but (b) does not include the supply of goods, the use of intellectual property or the use of a production process, except to the extent that that supply or use is an integral but subsidiary part of the service. Chairperson means the Chairperson of the Tribunal. Competition Principles Agreement means the Competition Principles Agreement made on 11 April 1995 by the Commonwealth, the Territories and the States, as in force for the time being. government agency means any public or local authority which supplies services to the public or any part of the public, and includes a government department, state owned corporation, water supply authority or public utility undertaking which supplies such services. government monopoly service is defined in section 4. portfolio Minister— (a) in relation to a statutory State owned corporation—has the same meaning as in the State Owned Corporations Act 1989, or (b) in relation to any other government agency or public authority—means the Minister who is responsible for the agency or authority, or such other Minister as is nominated by the Premier by order published in the Gazette. price includes any rate, fee, levy and charge and any other valuable consideration (however described), but does not include a State tax. pricing policies includes policies relating to the level or structure of prices for services. public infrastructure access regime means an access regime that relates to services provided by means of infrastructure facilities owned, controlled or operated by a government agency. service includes— (a) the supply of water, electricity, gas or other thing (whether or not of the same kind), and (b) the provision of public transport, and (c) the making available for use of facilities of any kind, and (d) the conferring of rights, benefits or privileges for which the price is payable in the form of royalty, tribute, levy or similar exaction, and (e) the exercise of the general functions of a public or local authority for which a rate or levy is payable by a section of the public, but does not include anything for which a State tax is payable. State tax means a tax such as land tax or stamp duty which is imposed for the public revenue purposes of the State. Tribunal means the Independent Pricing and Regulatory Tribunal of New South Wales established by this Act. water supply authority has the same meaning as it has in the Water Management Act 2000. Note— The Interpretation Act 1987 contains definitions and other provisions that affect the interpretation and application of this Act. (2) In this Act— (a) a reference to a function includes a reference to a power, authority and duty, and (b) a reference to the exercise of a function includes, where the function is a duty, a reference to the performance of the duty. (3) Notes included in this Act do not form part of this Act. 4 Government monopoly services (1) For the purposes of this Act, a government monopoly service is a service supplied by a government agency and declared by the regulations or the Minister to be a government monopoly service. Editorial note— For declarations under this subsection, see the Historical notes at the end of this Act. (2) A service may be declared to be a government monopoly service if the Minister certifies that it is a service— (a) for which there are no other suppliers to provide competition in the part of the market concerned, and (b) for which there is no contestable market by potential suppliers in the short term in that part of the market. (3) A service may be declared to be a government monopoly service by reference to— (a) a service specified or described in the declaration, or (b) the service for which a price specified or described in the declaration is payable. (4) A declaration of a service by the Minister is to be made by order published on the NSW legislation website. (5) To avoid doubt the service for which a navigation service charge under Part 5 of the Ports and Maritime Administration Act 1995 is payable is capable of being declared to be a government monopoly service. The relevant port authority (within the meaning of that Part) is taken to be the supplier of that service. (6) To avoid doubt, the services for which fees and charges are payable under Chapter 3 of the Water Management Act 2000 are capable of being declared to be government monopoly services. The Water Administration Ministerial Corporation is taken to be the supplier of any such service. (7) To avoid doubt, the services for which fees and charges are payable under the Water NSW Act 2014 are capable of being declared to be government monopoly services. Water NSW is taken to be the supplier of any such service. Part 2 Tribunal 5 Establishment of Tribunal (1) There is established by this Act an Independent Pricing and Regulatory Tribunal of New South Wales. The Tribunal is a body corporate. (2) The Tribunal has such functions as are conferred or imposed on it by or under this or any other Act or law. (3) (Repealed) 6 Members and procedure of the Tribunal (1) The Tribunal consists of 3 members appointed by the Minister as the permanent members of the Tribunal, and any number of additional members appointed by the Minister as temporary members. (2) Of the permanent members of the Tribunal, one is to be appointed as Chairperson. (3) A member of the Tribunal may be appointed as a full-time or part-time member. (4) The Minister is to ensure that the persons appointed as permanent members of the Tribunal have together a knowledge and understanding of economics, the interests of consumers and the interests of suppliers of services (including the interests of the Government as a supplier of services), whether the services supplied are monopoly services or not. (5) Schedule 2 has effect with respect to the members of the Tribunal. (6) Schedule 3 has effect with respect to the procedure of the Tribunal. 7 Tribunal not subject to Ministerial control in making determinations or recommendations (1) The Tribunal is not subject to the control or direction of the Minister in respect of the contents of any determination or recommendation of the Tribunal, but in other respects is subject to the control and direction of the Minister. (2) The Tribunal is not subject to the control or direction of any other Minister in respect of any function conferred or imposed on the Tribunal by or under this or any other Act, except as provided in any Act. 8 Staff Persons may be employed in the Public Service under the Government Sector Employment Act 2013 to enable the Tribunal to exercise its functions. Note— Section 59 of the Government Sector Employment Act 2013 provides that the persons so employed (or whose services the Tribunal makes use of) may be referred to as officers or employees, or members of staff, of the Tribunal. Section 47A of the Constitution Act 1902 precludes the Tribunal from employing staff. 9 Arrangements with other entities (1) The Tribunal may enter into arrangements with any government agency, or other body or person (whether in the public or private sector)— (a) for the provision of assistance to the Tribunal in connection with investigations under this Act or the exercise of other functions of the Tribunal (whether under this or any other Act), or (b) for the provision of assistance by the Tribunal to the agency or other body or person by means of the provision of services that are within the Tribunal's field of expertise and relevant to its functions. (2) The Tribunal is not to enter into an arrangement for the provision of services by the Tribunal unless the Minister has approved of the arrangement. (3) In entering into an arrangement for the provision of services by the Tribunal, the Tribunal has a duty to ensure that giving effect to the arrangement will not interfere with the ability of the Tribunal to exercise its functions. (4) The Tribunal may engage consultants to assist it in the exercise of its functions. (5) The Tribunal is entitled to charge for the services that it provides under this section, whether or not regulations have been made under section 29 for or with respect to fees for those services. 10 Delegation of Tribunal's functions (1) The Tribunal may delegate its functions, other than this power of delegation, to any member of the Tribunal or to any committee of persons (whether of members only or members and other persons). (2) The Tribunal may not delegate its function of making determinations or recommendations under this or any other Act to a committee that includes persons who are not members of the Tribunal. (3) The Tribunal may delegate any of its functions to an officer of the Tribunal, other than this power of delegation and the Tribunal's functions of making or giving determinations, recommendations, advice or reports under this or any other Act. (4) This section does not limit any power of delegation conferred on the Tribunal by or under any other Act. Part 3 Price determinations and other functions Division 1 Pricing: investigations and reports 11 Investigations and reports by Tribunal—standing reference (1) The Tribunal is to conduct investigations and make reports to the Minister on the following matters— (a) the determination of the pricing for a government monopoly service supplied by a government agency specified in Schedule 1, (b) a periodic review of pricing policies in respect of government monopoly services supplied by such an agency. (1A) Subsection (1) does not extend to such services of a government agency specified in Schedule 1 as may be excluded in that Schedule for the agency. (2) The regulations may amend Schedule 1. An agency may not be added to Schedule 1 by the regulations unless it is a government agency. (3) (Repealed) 12 Investigations and reports by Tribunal—reference by Minister (1) The Tribunal is also to conduct investigations and make reports to the Minister on any of the following matters referred to the Tribunal by the Minister— (a) the determination of the pricing for a specified government monopoly service, (b) a periodic review of pricing policies in respect of a specified government monopoly service. (2) This section applies to a government monopoly service whether or not it is supplied by a government agency specified in Schedule 1. (3) A reference with respect to the determination of the pricing of a government monopoly service may extend to an annual or other periodic determination of that pricing. (4) The Tribunal may request the Minister to refer a matter to the Tribunal under this section. (5) If the Minister has referred a matter to the Tribunal for investigation and report, the Minister may withdraw or amend the reference at any time before the Minister has received the report from the Tribunal. Division 2 Industry and other matters: investigations and reports 12A Investigations and reports on industry and other matters (1) The Tribunal is to conduct investigations and make reports on any matter with respect to pricing, industry or competition that is referred to the Tribunal by the Minister. (2) If the Minister so directs, a report by the Tribunal on an investigation under this section that relates to one or more access regimes is to include general guidelines for those access regimes. (2A) Without limiting subsection (1), a matter relating to any adverse or unforeseen consequences of applying competitive neutrality principles (within the meaning of Part 4C) to a public authority (within the meaning of that Part) or class of public authorities may be referred by the Minister to the Tribunal for investigation and report under this section. (3) The Tribunal may request the Minister to refer a matter to the Tribunal under this section and is to cause a copy of any such request to be published in the Gazette within 28 days after the request is made. (4) If the Minister has referred a matter to the Tribunal for investigation and report, the Minister may withdraw or amend the reference at any time before the Minister has received the report from the Tribunal. The Minister must give written reasons for the withdrawal or amendment to the Tribunal, and the Tribunal is to cause a copy of those reasons to be published in the Gazette within 28 days after they are given to the Tribunal. (5) In this section— industry means industry of any kind (including any business or activity relating to goods or services), and a reference to industry is a reference to industry in general, a particular industry, a part of an industry, or a group or groups of particular industries. Division 2A WHS matters: investigations and reports 12AA Investigation and report by IPART in relation to SafeWork NSW (1) The Tribunal is to conduct an investigation and make a report on such matters relating to the operational costs and expenses of SafeWork NSW as are referred to the Tribunal by the WHS Minister. (2) Any such report is to be provided to the WHS Minister within the period specified by the Minister in the terms of reference to the Tribunal. (3) In this section— SafeWork NSW means SafeWork NSW as referred to in clause 1 of Schedule 2 to the Work Health and Safety Act 2011. WHS Minister means the Minister administering the Work Health and Safety Act 2011. Division 3 Access regimes 12B Notice of proposed access agreements (1) A government agency that, under a public infrastructure access regime, proposes to enter into an agreement for the granting of access to services provided by means of infrastructure facilities owned, controlled or operated by it must notify the Tribunal of the proposal at least 30 days before entering into the agreement. (2) The agency must also provide the Tribunal with a copy of the proposed agreement if the Tribunal requests it, and with such details of the proposal as the Tribunal may request. (3) The Tribunal may give advice on the proposal to the agency and to the Minister. (4) A failure to comply with this section in relation to a proposed agreement, or a failure by the Tribunal to give advice on the proposal, does not affect the validity of the agreement. 12C Registration of access agreements (1) A government agency that, under a public infrastructure access regime, enters into an agreement for the granting of access to services provided by means of infrastructure facilities owned, controlled or operated by it must notify the Tribunal of that fact. (2) The agency must also provide the Tribunal with a copy of the agreement if the Tribunal requests it, and with such details of the agreement as the Tribunal may request. (3) The Tribunal must register the agreement and record the registration in the register maintained under section 12E, including in that record the names of the parties to the agreement, the service to which it relates, the date when it was made and such other details as the regulations prescribe. (4) To remove any doubt, it is declared that an agreement registered under this section is a document within the meaning of section 22A and therefore may be made available to the public, subject to that section. (5) A failure to comply with this section in relation to an agreement, or a failure by the Tribunal to register it, does not affect the validity of the agreement. (6) Nothing in this section or section 12B prevents the Minister, at the request of a party to a proposed agreement under an access regime, from submitting to the Tribunal a draft of the agreement before the party enters into it, or prevents the Tribunal from giving advice to the Minister in relation to it. 12D Failure to notify proposal or provide copy of agreement (1) If an agency fails to notify the Tribunal under section 12B of a proposal for an agreement or fails to notify the Tribunal under section 12C of entering into the agreement, the Tribunal may request the agency to provide the Tribunal with written reasons for that failure. (2) The Tribunal must report to the Minister on the failure, and include in the report any reasons provided by the agency. 12E Register of agreements The Tribunal must maintain a register of agreements and must make the register available for inspection by any person during the office hours of the Tribunal or such other hours as the regulations may prescribe. Division 4 Investigations and reports: general 13 Investigations and reports by Tribunal—general (1) The Minister may, in respect of an investigation and report under this Part by the Tribunal, do any or all of the following— (a) specify a period within which the report is required to be submitted to the Minister, (b) require the Tribunal to make a draft report available to the public, or to any specified persons or bodies, during the investigation, (c) require the Tribunal to consider specified matters when making its investigations, and the Tribunal must act accordingly. (2) The Tribunal is required to give notice of any investigation under this Part in a manner that the Tribunal is satisfied is likely to bring the notice to the attention of members of the public generally and to the government agency concerned (if any) and, at the discretion of the Tribunal, to any person or body that may supply or use the relevant service. The notice (and any report of the investigation) is to include the terms of any reference by the Minister and of any requirement made by the Minister under subsection (1). (3) The Tribunal is required, after considering any public comments on any such terms of reference, to settle the final terms of reference in the matter in consultation with the Minister. (4) The Tribunal may also report to the Minister on any matter it considers relevant that arises from an investigation into a matter under this Part. Any such report may be part of the principal report to the Minister or may be a separate report. (5) The fact that a determination of the pricing of a government monopoly service is in force does not preclude a further investigation and report on the matter. (6) An investigation and report with respect to a government monopoly service or other service may be limited to a particular part or category of that service or to a particular period during which that service is supplied or in any other manner. (7) An investigation and report may relate to a number of goods or services supplied by the same or different suppliers. (8) A report is to include any minority report by a member of the Tribunal who wishes to make such a report. Division 5 Price determinations 13A Determinations of pricing (1) In making a determination of the pricing for a government monopoly service, the Tribunal is limited to either of the following approaches— (a) the first approach, which involves either— (i) fixing the maximum price for the government monopoly service, or (ii) setting the methodology for fixing the maximum price for the government monopoly service, or (b) the second approach, which involves both— (i) fixing the maximum price for a part or parts of the government monopoly service, and (ii) setting the methodology for fixing the maximum price for any other part or parts of the government monopoly service. (2) The Tribunal may not choose to make a determination that involves setting the methodology for fixing a maximum price, unless the Tribunal is of the opinion that it is impractical to make a determination directly fixing the maximum price. (3) The Tribunal is to include in its determination a statement of the reasons why it has chosen to make a determination that involves setting the methodology for fixing a maximum price. (4) In relation to determinations that involve the second approach ("mixed determinations"), a reference (however expressed) in this or any other Act to— (a) a determination of, or fixing, the maximum price for a government monopoly service includes a reference to so much of a mixed determination as involves fixing the maximum price for any part or parts of a government monopoly service, and (b) a determination of, or setting, the methodology for fixing the maximum price for a government monopoly service includes a reference to so much of a mixed determination as involves setting the methodology for fixing the maximum price for any part or parts of a government monopoly service. 14 Method of fixing maximum prices (1) A determination of the Tribunal of the maximum price for a government monopoly service may fix that price in any manner the Tribunal considers appropriate, including the following— (a) by fixing an average price for a number of categories of the service, (b) by fixing a percentage increase or decrease in existing prices, (c) by fixing an average percentage increase or decrease in existing prices for a number of categories of the service, (d) by fixing a specified price for each category of the service (if any other manner is not considered appropriate). (2) The Tribunal may fix such a price by reference to— (a) a general price index (such as the Consumer Price Index), or (b) the government agency's economic cost of production, or (c) a rate of return on the assets of the government agency. 14A Setting of methodology for fixing prices (1) A determination of the Tribunal of the methodology for fixing the price for a government monopoly service may be made in any manner the Tribunal considers appropriate, including, for example, by reference to maximum revenue, or a maximum rate of increase or minimum rate of decrease in maximum revenue, for a number of categories of the service concerned. (2) In making such a determination, the Tribunal may have regard to such matters as it considers appropriate, including, for example, the following— (a) the government agency's economic cost of production, (b) past, current or future expenditures in relation to the government monopoly service, (c) charges for other monopoly services provided by the government agency, (d) economic parameters, such as— (i) discount rates, or (ii) movements in a general price index (such as the Consumer Price Index), whether past or forecast, (e) a rate of return on the assets of the government agency, (f) a valuation of the assets of the government agency, (g) the need to maintain ecologically sustainable development (within the meaning of section 6 of the Protection of the Environment Administration Act 1991) by appropriate pricing policies that take account of all the feasible options available to protect the environment, (h) the need to promote competition in the supply of the service concerned, (i) considerations of demand management (including levels of demand) and least cost planning. (3) In any report of such a determination, the Tribunal must indicate what regard it has had to the matters set out in subsection (2) in reaching that determination. 14B (Repealed) 15 Matters to be considered by Tribunal under this Act (1) In making determinations and recommendations under this Act, the Tribunal is to have regard to the following matters (in addition to any other matters the Tribunal considers relevant)— (a) the cost of providing the services concerned, (b) the protection of consumers from abuses of monopoly power in terms of prices, pricing policies and standard of services, (c) the appropriate rate of return on public sector assets, including appropriate payment of dividends to the Government for the benefit of the people of New South Wales, (d) the effect on general price inflation over the medium term, (e) the need for greater efficiency in the supply of services so as to reduce costs for the benefit of consumers and taxpayers, (f) the need to maintain ecologically sustainable development (within the meaning of section 6 of the Protection of the Environment Administration Act 1991) by appropriate pricing policies that take account of all the feasible options available to protect the environment, (g) the impact on pricing policies of borrowing, capital and dividend requirements of the government agency concerned and, in particular, the impact of any need to renew or increase relevant assets, (h) the impact on pricing policies of any arrangements that the government agency concerned has entered into for the exercise of its functions by some other person or body, (i) the need to promote competition in the supply of the services concerned, (j) considerations of demand management (including levels of demand) and least cost planning, (k) the social impact of the determinations and recommendations, (l) standards of quality, reliability and safety of the services concerned (whether those standards are specified by legislation, agreement or otherwise). (2) In any report of a determination or recommendation made by the Tribunal under this Act, the Tribunal must indicate what regard it has had to the matters set out in subsection (1) in reaching that determination or recommendation. (3) To remove any doubt, it is declared that this section does not apply to the Tribunal in the exercise of any of its functions under section 12A or under the applied provisions within the meaning of Part 3B. (4) (Repealed) 16 Report on financial impact if maximum price not charged If the Tribunal determines to increase the maximum price for a government monopoly service or determines a methodology that would or might increase the maximum price for a government monopoly service, the Tribunal is required to assess and report on the likely annual cost to the Consolidated Fund if the price were not increased to the maximum permitted and the government agency concerned were to be compensated for the revenue foregone by an appropriation from the Consolidated Fund. 16A Passing through efficient costs in price determinations (1) The portfolio Minister for a government agency may direct the Tribunal, when it makes a determination of the maximum price for a government monopoly service provided by the agency, to include in the maximum price an amount representing the efficient cost of complying with a specified requirement imposed on the agency. (2) The portfolio Minister for a government agency may direct the Tribunal, when it makes a determination of the methodology for fixing the maximum price for a government monopoly service provided by the agency, to include in the methodology a factor representing the efficient cost of complying with a specified requirement imposed on the agency. (3) Such a requirement may only be a requirement imposed by or under a licence or authorisation, a requirement imposed by a ministerial direction under an Act, or some other requirement imposed by or under an Act or statutory instrument. (3A) A portfolio Minister may give a direction to the Tribunal under this section only if— (a) the portfolio Minister has consulted with the Tribunal on the proposed direction before giving the direction, and (b) the Minister administering this Act has approved the direction. (4) The Tribunal is required to comply with a direction under this section. (5) In its report, the Tribunal is required to set out the terms of the direction and to include an explanation of the manner in which it has complied with the direction. 17 Gazettal of determinations (1) A determination in a report of the Tribunal of the pricing for a government monopoly service— (a) is to be published in the Gazette by the Minister as soon as practicable after the report is received by the Minister, and (b) takes effect on the day it is so published or on a later day specified in the determination for that purpose. (2) A determination may specify different days for the commencement of different parts of the determination. 18 Implementation of price determinations and other reports (1) A determination of the Tribunal of the maximum price for a government monopoly service is to be implemented as follows— (a) if the price for the service is fixed by a Minister, a public official (other than the Governor) or the relevant government agency—the Minister, official or agency is to ensure that the price does not exceed the maximum price determined by the Tribunal, (b) in any other case—the Minister responsible for the supply of the service (or for the government agency that supplies the service) is required to take the appropriate action available to the Minister to ensure that the price does not exceed the maximum price determined by the Tribunal. (1A) A determination made by the Tribunal of the methodology for fixing the maximum price for a government monopoly service is to be implemented as follows— (a) if the price for the service is fixed by a Minister, a public official (other than the Governor) or the relevant government agency—the Minister, official or agency is to ensure that the price does not exceed the maximum price fixed in accordance with a proper application of the methodology, (b) in any other case—the Minister responsible for the supply of the service (or for the government agency that supplies the service) is required to take the appropriate action available to the Minister to ensure that the price does not exceed the maximum price fixed in accordance with a proper application of the methodology. (2) The approval of the Treasurer must be obtained if another Minister, an official or an agency fixes (or takes action to fix) the price below the maximum price determined by the Tribunal or calculated in accordance with the determination of the Tribunal. (3) If a report of the Tribunal makes recommendations with respect to the pricing policies for a government monopoly service, the recommendations are to be taken into account in the fixing of prices for those services. (4) A government agency which is the subject of a determination or recommendation of the Tribunal is required to include in its annual report— (a) particulars of how any such determination has been implemented, and (b) a statement of whether any such recommendation has been implemented and, if not, the reasons why it has not been implemented. (5) A g