ALERT DIGEST 7 of 1994
Part 7
OFFICE OF THE REGULATOR-GENERAL BILL
7.1
This Bill was introduced into the Legislative Assembly on 4 May 1994 by The Honourable Ian Smith with The Honourable Phil Gude.
7.2
This Bill provides for the establishment and the general powers and functions of the Office of the Regulator- General which will act as a general regulatory body for industries which are made subject to regulation in accordance with the Act. The Office of the Regulator-General will be concerned with the economic regulation of the electricity, gas and water industries. More specifically, its purposes are to:-
- establish the Office of the Regulator-General;
- create an economic regulatory framework for regulated industries which promotes and safeguards competition and fair and efficient market conduct or, in the absence of a competitive market, which promotes the simulation of competitive market conduct and the prevention of the misuse of monopoly power.
7.3
Clause 2 is the commencement provision. The Committee commends the forced commencement procedure.
Clause 4 states that "it is the intention of Parliament that this Act is to be interpreted and administered in accordance with the statements of government policy". Note that a statement of government policy means a statement of government policy as declared under section 10 of the Act.
7.4 ¯ Office of the Regulator-General
Part 2 establishes the Office of the Regulator-General. Clauses 7 and 8 set out the objectives and the functions of the office. Clause 10 provides for the making of a statement of government policy by Order of the Governor-in-Council. It must be published in the Government Gazette. The Office must ensure that it performs its functions and exercises its power in such a way as to give effect to any relevant statement of government policy. The Office is not subject to the direction or control of the Minister in respect of any determination, report or inquiry.
Clauses 13 and 14 provide that one person appointed by the Governor-in-Council shall be the Regulator-General. The Regulator-General is appointed for a term of five years, is eligible for re-appointment and can only be removed by a resolution of both Houses. Clause 17 provides that the Minister may appoint Associate Regulators-General and is appointed on such terms and conditions as the Minister determines and may be removed by the Minister at any time. Clause 19 provides that the remuneration of the Regulator-General and the Associate Regulators-General are fixed by the Governor-in-Council.
Clause 22 provides that the Officer may be instrument delegate to an Associate Regulator-General or any other person referred to in section 20, any power under the Act. The Committee notes that the recipients of the delegated powers are specified.
7.5 ¯ Specific powers of the Office of Regulator-General
Part 3 sets out the specific powers of the Office of Regulator-General.
Clause 24 provides that the Office may regulate prescribed prices in respect of prescribed goods and services. Clause 25 provides that the Office may make a price determination which may regulate prescribed goods and services. This includes the fixing of minimum, maximum and average prices. It also includes specifying pricing policies or principles and specifying an amount determined by reference to a general price index. Sub-clause (4) sets out the matters which the Office must have regard to in the making of a determination.
Clause 26 provides that the Office may make determinations in respect of standards and conditions of service and supply, licensing, market conduct and other economic regulatory matters. Clause 27 provides that a determination must be published in the Government Gazette, published in a daily newspaper and sent to each regulated entity in the regulated industry to which the determination applies.
7.6 ¯ Inquiries and reports
Part 4 relates to reports and inquiries.
Clauses 28 and 29 provides that the Office may conduct an inquiry after consultation with the Minister or after the Minister has referred a matter to it. Notice of the inquiry must be published in a daily Victorian newspaper. The Office may conduct the inquiry in such a manner as it considers appropriate. It must hold a public hearing and may receive written submissions or statements and is not bound by the rules of practice and procedure. The Office may serve a summons requiring a person to specify information and provide documents. If any of the information is of a confidential or commercially sensitive nature, the Office may use the information for the purposes of the inquiry but may not otherwise disclose the contents of the document or the information. The offences and penalties are set out. The final report must be submitted to the Minister, tabled in Parliament and made publicly available.
7.7 ¯ General -Enforcement orders - Appeals
Part 5 sets out general provisions with respect to enforcement orders and appeals to the Supreme Court.
Clause 35 provides that the Office is of the opinion that a person is likely to contravene a determination or a condition of licence, then the Office may serve a provisional or a final order requiring the person to comply with the determination or licence condition. A provisional order has effect for 7 day thereby giving the person the opportunity to comply with the order. A final order cannot be made without giving the person 28 days notice, the opportunity to make submissions and considered any submission or objection.
The person may appeal against the determination on the ground of bias or on the basis that the facts on which the determination is based have been misinterpreted. Pursuant to clause 38, an appeal must be heard by 3 persons appointed by the Minister and drawn from a pool of persons appointed by the Governor -in-Council. The appeal must be heard and decided within 2 weeks.
Clause 39 provides that the Regulator-General or an Associate Regulator-General is not personally liable for anything, act or matter carried out in good faith under that Act. Clause 43 gives the Governor-in-Council the power to make regulations. Such regulations are subject to the requirements of the Subordinate Legislation Act 1962.
7.8 ¯ Reporting requirements
The Committee wrote to the Minister on 11 May 1994 requesting his advice as to the reporting requirements of the Office of the Regulator-General. The Minister responded by way of letter dated 16 May 1994, the contents of which are set out:-
"Thank you for your letter of 11 May 1994 requesting advice regarding the annual reporting arrangements for the proposed Office of the Regulator-General.
The Office will be required to report to the Parliament pursuant to Part 7 of the Financial Management Act 1994. In terms of the definitions of the Financial Management Act 1994, the definition of "public body" is relevant and all bodies will be declared by the Minister by notice in the Government Gazette to be a body or office to which Part 7 applies.
For your future information there will be no further accounting, reporting or auditing provisions in any future legislation as all bodies will be declared pursuant to Part 7 of the Financial Management Act 1994."
The Committee thanks the Minister for his response.
7.9 ¯ Variation of section 85 of the Constitution Act 1975 (section 4D(b)(i)(ii) or (iii) of the Parliamentary Committees Act 1968.
Clause 41 states its intention to alter or vary section 85 of the Constitution Act 1975 to the extent necessary to prevent the Supreme Court from entertaining applications referred to in section 32(8) or 40 of the Bill.
Clause 32(8) excludes civil proceedings for damage that may be suffered in respect of providing information or documents in an inquiry, whether or not the statement is made or the document is given in connection with a written submission or a public hearing. The Committee notes the comments in the Second Reading Speech:-
"The reason for limiting the jurisdiction of the Supreme Court with respect to clause 32(8) is to give persons who wish to make statements or provide information, a degree of confidence that their statements or information can be made without a fear of litigation. This is likely to enhance the quality of the submissions and information made available to the Office, and thus contribute to the quality of its reports."
The Committee reports that the proposed provision is appropriate and desirable in all the circumstances.
Clause 40 provides that proceedings cannot be brought in respect of a determination or a provisional order or a final order except on the grounds that there was no power to make the determination or order or that the procedural requirements in relation to the making of the determination or order have not been complied with. The Committee notes the comments in the Second Reading Notes:-
"The Bill provides for an appeals panel and process associated with the Office, and the commercial nature of the industries to be regulated requires that appeals be heard and decided as quickly as possible. It is considered that the appeals mechanism would satisfy the requirements for appellants to be given a fair hearing and for a considered decision on any appeals to be made.
Similarly it is necessary to ensure that where the Regulator-General makes orders to comply with determinations or with the terms of any licence they should operate without risk of questions challenging the substance of the order being referred to court except on the grounds mentioned, since direct and effective enforcement is essential to the scheme of economic regulation provided for in the Bill."
The Committee notes that the proposed provision would prevent the bringing of appeals, which in other circumstances would be considered desirable. The Committee also notes that the equivalent British legislation contains no appeal provisions and refers the matter to Parliament to debate.
