New South Wales: 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 government agency that is the subject of a determination or recommendation of the Tribunal is also required to include the particulars and statement required under subsection (4) in the submissions made by the agency to the Tribunal during any subsequent investigation of the same matter as that to which the determination or recommendation related. Division 6 Publication of reports 19 Reports to be made public (1) As soon as practicable after the Minister receives a report from the Tribunal under this Part, the Minister is to arrange for copies of the report to be made available for public inspection. (2) However, if the Tribunal in the special circumstances of the case recommends in its report that the public release of the report, or part of the report, be delayed for a specified period, subsection (1) applies to the report, or that part of the report, as if the report were received by the Minister at the end of that period. (3) The arrangements under subsection (1) for making of copies of a report available for public inspection are to include— (a) the tabling of a copy of the report in each House of Parliament within 5 sitting days of the House, and (b) the forwarding of a copy of the report, within 5 days of its receipt by the Minister, to the Parliamentary Librarian to form part of the Parliamentary Library's collection, and (c) the making of a copy of the report available for public inspection at the office of the Tribunal during its ordinary hours of business. (4) (Repealed) Division 7 Investigations 19A Definition In this Division— investigation means an investigation by the Tribunal for the purposes of this Part. 20 General conduct of investigations (1) In an investigation, the Tribunal— (a) is to act with as little formality as possible, and (b) may inform itself on any matter in any way it thinks fit and is not bound by the rules of evidence, and (c) may receive information or submissions in the form of oral or written statements, and (d) may consult with such persons as it thinks fit. (2) The Tribunal is not required to hear evidence from a government agency or any other person affected by any investigation of the Tribunal. 21 Hearings in investigations (1) The Tribunal is required to hold at least one hearing for the purposes of each investigation and may hold further hearings if it considers that it is necessary to do so. (2) The Tribunal may also hold public seminars, conduct workshops and establish working groups and task forces for the purposes of an investigation. (3) Before the Tribunal begins to hold hearings for the purposes of an investigation, it must give reasonable notice, in a manner that the Tribunal is satisfied is likely to bring the notice to the attention of members of the public generally, of its intention to hold the hearings, the subject of the hearings and the time and place at which the first of the hearings is to begin. (3A) The Tribunal may call for written submissions to be made before the hearings commence, and may specify a time and date by which those submissions must be made. The Tribunal may extend the time for the making of submissions. (4) A hearing is to be held in public. (5) However, if the Tribunal is satisfied that it is desirable to do so because of the confidential nature of any evidence or matter or for any other reason, it may— (a) direct that a hearing or a part of a hearing is to take place in private and give directions as to the persons who may be present, or (b) give directions prohibiting or restricting the publication of evidence given before the hearing or of matters contained in documents given to the Tribunal. (6) A person must not contravene a direction given under subsection (5) (b). Maximum penalty—100 penalty units or imprisonment for 6 months, or both. (7) Schedule 3 applies to a hearing, so far as that Schedule is capable of so applying, as if the hearing were a meeting of the Tribunal. 22 Tendering information, documents and evidence (1) For the purposes of an investigation, the Chairperson may, by notice in writing served on an officer of a government agency or on any other person, require the officer or other person to do any one or more of the following— (a) to send to the Tribunal, on or before a day specified in the notice, a statement setting out such information as is so specified, (b) to send to the Tribunal, on or before a day specified in the notice, such documents as are so specified, (c) to attend at a hearing before the Tribunal to give evidence. (2) If documents are given to the Tribunal under this section, the Tribunal— (a) may take possession of, and make copies of or take extracts from, the documents, and (b) may keep possession of the documents for such period as is necessary for the purposes of the investigation to which they relate, and (c) during that period must permit them to be inspected at all reasonable times by persons who would be entitled to inspect them if they were not in the possession of the Tribunal. (3) A person (not being an officer of a government agency) who attends at a hearing because of a notice under this section is entitled to be paid by the State such allowances and expenses as are prescribed by the regulations or (subject to the regulations) as are approved by the Treasurer. (4) (Repealed) 22A Making submissions and documents available to public (1) The Tribunal must make a document obtained by the Tribunal in connection with an investigation (including any submission given to the Tribunal under section 21 and any statement or document given to the Tribunal under section 22) available for inspection on request by any person, unless the document contains information that the Tribunal would not be required to disclose under the Government Information (Public Access) Act 2009. (2) The Tribunal may make such a document available for inspection on request by any person who the Tribunal considers has an interest in the investigation to which the document relates, despite the fact that the document contains information that the Tribunal would not be required to disclose under the Government Information (Public Access) Act 2009. However, the Tribunal may only do that if the Tribunal— (a) has given the person that gave the document to the Tribunal (and, in the case of a document that is an agreement registered under section 12C, the parties to the agreement) an opportunity to make a submission to the Tribunal on whether the document should be made available, and (b) has considered the submission (if any), and (c) is satisfied that making the document available could not reasonably be expected to damage the commercial or other interests of the State or of the person that gave it to the Tribunal (or, in the case of a document that is an agreement registered under section 12C, of the parties to the agreement) or of any other person. (3) The Tribunal may, in making a document available (or instead of refusing to make a document available) under this section, do all or any of the following— (a) make parts of the document available to the public, being parts that would, if they stood alone, constitute documents that the Tribunal must or may, in accordance with this section, make available to the public, (b) make the document available after deleting parts of the document that would otherwise prevent its availability under this section, (c) impose conditions on the availability of part or all of a document (for example, conditions limiting the availability to certain classes of persons or requiring persons not to reveal the contents of the part or document). (4) In its deliberations under subsection (2), the Tribunal may take into account the likely effect of conditions that the Tribunal might impose under subsection (3). (5) A person to whom a document is made available under subsection (2) must not infringe any condition to which that availability is subject under this section. Maximum penalty—100 penalty units. (6) Nothing in this section limits the operation of section 21 (5) (b). 23 Offences (1) A person must not, without reasonable excuse— (a) refuse or fail to comply with a notice served under this Division, or (b) refuse or fail to answer a question that the person is required to answer by the Chairperson at any hearing held under this Division. (2) It is a reasonable excuse for the purposes of subsection (1) that to comply with the notice or to answer the question might tend to incriminate the person or make the person liable to any forfeiture or penalty. (3) A person must not— (a) give to the Tribunal, whether orally or in writing, information that the person knows to be false or misleading in a material particular (unless the person informs the Tribunal of that fact), or (b) at a hearing before the Tribunal, give evidence that the person knows to be false or misleading in a material particular. (4) A person must not hinder, obstruct or interfere with the Chairperson or any other member of the Tribunal in the exercise of functions as Chairperson or other member. (5) A person must not take any action that detrimentally affects the employment of another person, or threaten to do so, because that other person has assisted the Tribunal in any investigation. Maximum penalty—100 penalty units or imprisonment for 6 months, or both. 24 (Renumbered as sec 25A) Part 3A Price determinations: monitoring 24AA Monitoring role The Tribunal may monitor the performance of a government agency specified in Schedule 1 for the purposes of— (a) establishing, and reporting to the Minister on, the level of compliance by the government agency with a determination of the Tribunal of the pricing for a government monopoly service supplied by the government agency, and (b) preparing for a periodic review of pricing policies in respect of government monopoly services supplied by the government agency. 24AB Government agencies to provide information, documents and evidence (1) For the purposes referred to in section 24AA, the Chairperson may, by notice in writing served on an officer of the government agency to which a determination relates, require the officer to do any one or more of the following— (a) to send to the Tribunal, on or before a day specified in the notice, a statement setting out such information as is so specified, (b) to send to the Tribunal, on or before a day specified in the notice, such documents as are so specified, (c) to attend a meeting of the Tribunal to give evidence. (2) If documents are given to the Tribunal under this section, the Tribunal— (a) may take possession of, and make copies of or take extracts from, the documents, and (b) may keep possession of the documents for such period as is necessary for those purposes, and (c) during that period must permit them to be inspected at all reasonable times by persons who would be entitled to inspect them if they were not in the possession of the Tribunal. 24AC Offences (1) A person must not, without reasonable excuse— (a) refuse or fail to comply with a notice served under this Part, or (b) refuse or fail to answer a question that the person is required to answer by the Chairperson at any meeting of the Tribunal under this Part. (2) It is a reasonable excuse for the purposes of subsection (1) that to comply with the notice or to answer the question might tend to incriminate the person or make the person liable to any forfeiture or penalty. (3) A person must not— (a) give to the Tribunal, whether orally or in writing, information that the person knows to be false or misleading in a material particular (unless the person informs the Tribunal of that fact), or (b) at a meeting of the Tribunal, give evidence that the person knows to be false or misleading in a material particular. (4) A person must not hinder, obstruct or interfere with the Chairperson or any other member of the Tribunal in the exercise of functions for the purposes of this Part as Chairperson or other member. (5) A person must not take any action that detrimentally affects the employment of another person, or threaten to do so, because that other person has assisted the Tribunal in any investigation. Maximum penalty—100 penalty units or imprisonment for 6 months, or both. 24AD Confidential information (1) If a person provides information to the Tribunal in connection with functions under this Part on the understanding that the information is confidential and will not be divulged, the Tribunal is required to ensure that the information is not divulged by it to any person, except— (a) with the consent of the person who provided the information, or (b) to the extent that the Tribunal is satisfied that the information is not confidential in nature, or (c) to a member or officer of the Tribunal. (2) If the Tribunal is satisfied that it is desirable to do so because of the confidential nature of any information provided to the Tribunal in connection with functions under this Part, it may give directions prohibiting or restricting the divulging of the information. (3) A person must not contravene a direction given under subsection (2). Maximum penalty—100 penalty units or imprisonment for 6 months, or both. (4) A reference in this section to information includes information contained in any evidence given at a meeting of the Tribunal and information contained in any documents given to the Tribunal. Part 3B Approval or determination of Murray-Darling Basin water charges 24AE Definitions In this Part— ACCC means the Australian Competition and Consumer Commission established by section 6A of the Competition and Consumer Act 2010 of the Commonwealth. accredited arrangements has the same meaning as in the Commonwealth Water Charge Rules. applied provisions means the Commonwealth provisions as applied by section 24AG. Basin water resources has the same meaning as State water resources has in the Commonwealth Water Charge Rules in relation to New South Wales. Commonwealth provisions has the same meaning as applied provisions has in rule 59 (2) of the Commonwealth Water Charge Rules. Commonwealth Water Charge Rules means the Water Charge (Infrastructure) Rules 2010 of the Commonwealth. Part 6 operator has the same meaning as in the Commonwealth Water Charge Rules. Part 7 operator has the same meaning as in the Commonwealth Water Charge Rules. regulated charge has the same meaning as in the Commonwealth Water Charge Rules. Regulator has the same meaning as in the Commonwealth Water Charge Rules. 24AF Interpretation of applied provisions (1) Subject to subsection (2), the Acts Interpretation Act 1901 of the Commonwealth applies as a law of this State in relation to the applied provisions as if the applied provisions were a Commonwealth Act and each rule of the applied provisions were a section of a Commonwealth Act. (2) The Acts Interpretation Act 1901 of the Commonwealth applies to the applied provisions only to the extent to which that Act applies to the Commonwealth Water Charge Rules. (3) The following provisions apply to the applied provisions— (a) expressions used in the applied provisions have the same meaning as in the Water Act 2007 of the Commonwealth, (b) the applied provisions are to be read and construed subject to the Water Act 2007 of the Commonwealth and so as not to exceed the rule-making power in section 92 of that Act or any other ancillary rule-making powers in that Act, (c) if a provision of the applied provisions would, but for paragraph (b), be construed as being in excess of any rule-making power referred to in that paragraph, it is taken to have effect to the extent to which it does not exceed that rule-making power. (4) The Interpretation Act 1987 of New South Wales does not apply in relation to the applied provisions. 24AG Application of Commonwealth provisions In respect of Basin water resources, the Commonwealth provisions, as in force from time to time, apply as a law of this State. 24AH Functions of Tribunal The Tribunal has all the functions conferred on a Regulator under the applied provisions. 24AI Operation of applied provisions Without limiting section 24AG, the applied provisions have effect only while the arrangements referred to in section 24AJ (a) are accredited arrangements. 24AJ Application for accreditation The Tribunal may— (a) apply to the ACCC for section 24AH (to the extent to which it provides for the approval or determination by the Tribunal of regulated charges of Part 6 operators and Part 7 operators relating to Basin water resources in accordance with the applied provisions) to be accredited as accredited arrangements, and (b) do anything else necessary to enable those arrangements to be so accredited. 24AK Tribunal not subject to Ministerial control in exercise of functions Despite any provision of this Act or any other law to the contrary, the Tribunal is not subject to the control or direction of any Minister in the exercise of its functions under the applied provisions. 24AL Notification of approval, revocation or cessation of accreditation (1) If the ACCC approves an application for accreditation of the arrangements referred to in section 24AJ (a) as accredited arrangements, the Tribunal must publish notice of that approval within 7 days after that approval. (2) A notice under subsection (1) must— (a) be published in the Gazette and on the Tribunal's website, and (b) include a copy of the ACCC's decision to approve the application and the date on which the accreditation takes effect. (3) If the ACCC revokes the accreditation of the arrangements referred to in section 24AJ (a) as accredited arrangements, the Tribunal must publish notice of that revocation within 7 days after that revocation. (4) A notice under subsection (3) must— (a) be published in the Gazette and on the Tribunal's website, and (b) include a copy of the ACCC's decision to revoke the accreditation and the date on which the revocation takes effect. (5) If accreditation of the arrangements referred to in section 24AJ (a) as accredited arrangements ceases to have effect, the Tribunal must publish notice of that fact within 7 days after the date on which that accreditation ceases to have effect. (6) A notice under subsection (5) must— (a) be published in the Gazette and on the Tribunal's website, and (b) include the date on which the accreditation ceases to have effect. Note— Part 9 of the Commonwealth Water Charge Rules provides for the approval of an application for accreditation of arrangements and the revocation of the accreditation. In accordance with that Part, the ACCC is required to publish notice of the approval or revocation on its website. Part 4A Access regimes: arbitration of disputes 24A Arbitration of access disputes (1) If a dispute exists with respect to a public infrastructure access regime that provides for the application of this Part, any party to the dispute may refer the dispute to arbitration. (2) The Commercial Arbitration Act 2010 applies to such an arbitration, but subject to this Part and the regulations. (3) A dispute is taken to exist with respect to such an access regime if a person (the third party) who wants access to a service, or wants a change to some aspect of the person's existing access to a service, under the access regime is unable to agree with the provider of the service on one or more aspects of access to the service. (4) The parties to the dispute are the third party and the provider of the service. The provider of the service is the government agency that owns, controls or operates the infrastructure by means of which the service is provided. 24B Appointment and functions of arbitrator (1) The Tribunal may act as arbitrator to hear and determine disputes referred to arbitration under this Part. Alternatively, the Tribunal may appoint one or more persons from a panel approved by the Minister (whether or not the persons are members of the Tribunal) who may act as arbitrators to hear and determine a dispute referred to arbitration under this Part. (2) In the case of a dispute between a third party wanting, but not having, access to a service and the provider of the service, the arbitrator must give public notice of the dispute. The notice must invite submissions to the arbitrator from the public regarding the dispute and specify when and how those submissions may be made. (3) In the arbitration of a dispute referred under this Part, the arbitrator must take into account the following— (a) the matters set out in clause 6 (4) (i), (j) and (l) of the Competition Principles Agreement, (b) any guidelines referred to in section 12A (2) for the access regime to which the dispute relates, (c) any submissions made on the dispute by the public, in a case to which subsection (2) applies, (d) any other matters that the arbitrator considers relevant. (4) An arbitrator in an arbitration under this Part has the powers of the Tribunal under section 22 (Tendering information, documents and evidence). In the application of that section under this Part, a reference to the Tribunal is taken to be a reference to the arbitrator. 24C Determination of dispute by arbitrator (1) The arbitrator is to determine the dispute by making a written determination on access to the service by the third party. (2) The determination may deal with any matter relating to access by the third party to the service, including matters that were not the basis for notification of the dispute. For example, the determination may do one or more of the following— (a) require the provider to provide access to the service by the third party, (b) require the third party to accept, and pay for, access to the service, (c) specify the terms and conditions of the third party's access to the service, (d) require the provider to extend the infrastructure facility, (e) specify the extent to which the determination overrides an earlier determination relating to access to the service by the third party. (3) The determination does not have to require the provider to provide access to the service by the third party. 24D Parties required to give effect to determination The parties to an arbitration are required to give effect to the arbitration determination and, if the determination is in favour of the third party's access to the service, must not engage in conduct for the purpose of preventing or hindering the third party's access to the service under the determination. 24E Termination of arbitration (1) An arbitrator may, without making a determination, terminate the arbitration at any time if the arbitrator thinks that any of the following grounds exist— (a) the notification of the dispute was vexatious, (b) the subject-matter of the dispute is trivial, misconceived or lacking in substance, (c) the party who notified the dispute has not engaged in negotiations in good faith, (d) access to the service should continue to be governed by an existing contract between the provider and the third party. (2) In addition, if the dispute is about varying an existing determination, the arbitrator may terminate the arbitration if the arbitrator thinks there is no sufficient reason why the previous determination should not continue to have effect in its present form. Part 4B Regulation of utilities Division 1 Regulatory functions 24F Regulatory functions of Tribunal The regulatory functions of the Tribunal include its functions referred to in— (a) section 77 of the Electricity Supply Act 1995, and (b) section 75A of the Gas Supply Act 1996, and (c) section 18A of the Hunter Water Act 1991, and (d) section 28 of the Sydney Water Act 1994, and (d1) (Repealed) (e) section 56 of the Water NSW Act 2014, and (f) (Repealed) (g) section 90 of the Water Industry Competition Act 2006. 24FA Recommendations and advice (1) Any recommendations or advice authorised or required to be made or given by the Tribunal under its regulatory functions may be of a general or specific nature. (2) A Minister may, by order in writing, following consultation with, and with the agreement of, the Tribunal, establish protocols as to the procedures to be adopted for or with respect to the seeking, making or giving of any such recommendations or advice to that Minister, including protocols as to— (a) the provision of advice and information to the Tribunal to enable the Tribunal to exercise its functions with respect to such recommendations or advice effectively and efficiently, and (b) the circumstances in which the Tribunal's recommendations or advice need not be sought, made or given (except where a recommendation or advice is required by an Act to be made or given). (3) If the Tribunal makes or gives any recommendation or advice referred to in this section to a Minister, that Minister is to consider but is not bound by the recommendation or advice. (4) A copy of each order made under this section is to be published in the Gazette as soon as practicable after it has been made. (5) The provisions of an Act conferring on the Tribunal the regulatory function of making or giving recommendations or advice to a Minister for or with respect to a contravention of an operating licence or of the conditions of a licence or authorisation, or of an endorsement attached to a licence, do not apply to or affect any power that the Tribunal has to impose a monetary penalty in respect of such a contravention. 24FB Directions as to government policy (1) In exercising its regulatory functions (other than its licence auditing functions), the Tribunal must give effect to any current government policy that has been communicated to the Tribunal, and certified to be government policy, by the relevant Minister or by the Premier. (2) For the purposes of this section, the relevant Minister is the Minister who administers the provisions of the legislation relating to the grant of the relevant operating licence, licence or authorisation. (3) The Tribunal is to make each such policy communicated to it and certificate received by it publicly available. Division 2 Licence auditing functions 24FC Licence auditing functions of Tribunal (1) The licence auditing functions of the Tribunal are— (a) its functions under section 87 of the Electricity Supply Act 1995, and (b) its functions in connection with operational audits under the Hunter Water Act 1991, and (c) its functions in connection with operational audits under the Sydney Water Act 1994, and (c1) (Repealed) (d) its functions in connection with operational audits under the Water NSW Act 2014, and (e) (Repealed) (f) its functions under section 85 of the Water Industry Competition Act 2006. (2) The Tribunal is not subject to the control or direction of any Minister in respect of the contents of any report or advice given to a Minister in relation to those functions. 24FD Establishment and function of Utilities Licence Auditing Advisory Committee (1) There is established by this Act a Utilities Licence Auditing Advisory Committee. (2) The function of the Advisory Committee is to furnish advice to the Tribunal on the scope and methodology of audits being or to be conducted under the licence auditing functions of the Tribunal. (3) The advice is to be furnished at the request of, and in the manner and form determined by, the Tribunal. (4) The Tribunal is to consider but is not bound by any of the advice of the Advisory Committee furnished to the Tribunal. (5) The Advisory Committee is not subject to the control or direction of the Tribunal in respect of the contents of any advice of the Advisory Committee furnished to the Tribunal. 24FE Membership and procedure of Advisory Committee (1) The Utilities Licence Auditing Advisory Committee is to consist of six part-time members appointed by the Minister. (2) Of the members of the Advisory Committee— (a) one is to have expertise in, and extensive knowledge of, water conservation and associated environmental matters and is to be appointed by the Minister from a panel of three persons nominated jointly by the Nature Conservation Council of New South Wales, the Public Interest Advocacy Centre, the Council of Social Services of New South Wales and the Australian Consumers Association, and (b) one is to have expertise in, and extensive knowledge of, electricity distribution and retail supply and associated environmental matters and is to be appointed by the Minister from a panel of three persons nominated jointly by the Nature Conservation Council of New South Wales, the Public Interest Advocacy Centre, the Council of Social Services of New South Wales and the Australian Consumers Association, and (c) one is to have expertise in, and knowledge of, consumer issues and is to be appointed by the Minister from a panel of three persons nominated jointly by the Nature Conservation Council of New South Wales, the Public Interest Advocacy Centre, the Council of Social Services of New South Wales and the Australian Consumers Association, and (d) two are to be nominated by the Minister for Energy, and (e) one is to be nominated by the Minister for the Environment. (3) Schedule 3A has effect with respect to the membership and procedure of the Advisory Committee. 24FF Confidential information (1) If a person provides information to the Tribunal in connection with its licence auditing functions on the understanding that the information is confidential and will not be divulged, the Tribunal is required to ensure that the information is not divulged by it to any person, except— (a) with the consent of the person who provided the information, or (b) to the extent that the Tribunal is satisfied that the information is not confidential in nature, or (c) to a member or officer of the Tribunal. (2) If the Tribunal is satisfied that it is desirable to do so because of the confidential nature of any information provided to the Tribunal in connection with its licence auditing functions, it may give directions prohibiting or restricting the divulging of the information. (3) A person must not contravene a direction given under subsection (2). Maximum penalty—100 penalty units or imprisonment for 6 months, or both. (4) A reference in this section to information includes information given at a meeting of the Tribunal and information contained in any documents given to the Tribunal. Part 4C Competitive neutrality Division 1 Preliminary 24G Purpose and application of Part