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TASMANIA
__________
ECONOMIC REGULATOR BILL 2009
__________
CONTENTS
PART 1 - PRELIMINARY
1. Short title
2. Commencement
3. Interpretation
4. Maximum prices defined
5. Declaration of service
6. Declaration of monopoly service
7. Act binds Crown
8. Inconsistency between this Act and another Act
PART 2 - TASMANIAN ECONOMIC REGULATOR
Division 1 - Tasmanian Economic Regulator
9. Tasmanian Economic Regulator
10. Functions of Regulator
11. Powers of Regulator generally
12. Power to publish guidelines
13. Delegation
14. Regulator not subject to Ministerial control
Division 2 - Membership of Regulator
15. Membership of Regulator
16. Acting member of Regulator
[Bill 81]-III
Division 3 - Staff, assistance and facilities
17. Staff of Regulator
18. Assistance and facilities
Division 4 - Finances of Regulator
19. Funds
20. Costs of monopoly provider investigations
21. Financial statements
Division 5 - Annual report
22. Annual report
23. Tabling of annual report
PART 3 - MONOPOLY PROVIDER INVESTIGATIONS
Division 1 - Commencing monopoly provider investigation
24. Requirement to conduct monopoly provider investigation
25. Terms of reference
26. Notice of monopoly provider investigation
Division 2 - Conduct of monopoly provider investigation
27. Conduct of monopoly provider investigations
28. Hearings
29. Requiring person to give evidence or provide document
30. Use of documents or other information
31. Matters to be considered
32. Limitations on monopoly provider investigation and reporting
33. Offences
Division 3 - Action following monopoly provider investigation
34. Draft report
35. Final report
36. Pricing policy order
37. Action by monopoly provider following pricing policy order
38. Determination by Portfolio Minister where no pricing policy
order made
2
PART 4 - PRESCRIBED BODY INQUIRIES
39. Direction to conduct prescribed body inquiry
40. Conduct of prescribed body inquiry
41. Use of documents or other information
42. Report on prescribed body inquiry
43. Offences
PART 5 - TAXI FARE METHODOLOGY INQUIRIES
44. Direction to conduct taxi fare methodology inquiry
45. Conduct of taxi fare methodology inquiry
46. Offences
47. Report on taxi fare methodology inquiry
PART 6 - COMPETITIVE NEUTRALITY COMPLAINTS
48. Who may make a complaint
49. Making complaint
50. Preliminary assessment of complaint
51. Refusal to conduct complaint investigation
52. Commencing investigation into complaint
53. Reply to complaint
54. Conduct of complaint investigation
55. Requiring person to give evidence or provide document
56. Use of documents or other information
57. Decision of Regulator
58. Time by which complaint investigation to be completed
59. Action by Minister on determination
60. Action by prescribed body on determination
61. Refund of fee accompanying complaint
62. Offences
PART 7 - MISCELLANEOUS
63. Non-application of certain Acts to certain information
64. Service of documents
3
65. Amendment of Schedule 1
66. Regulations
67. Administration of Act
68. Savings and transitional provisions
69. Repeals and rescissions
SCHEDULE 1 - CERTAIN MONOPOLY PROVIDERS
SCHEDULE 2 - MEMBERSHIP OF REGULATOR
SCHEDULE 3 - MEETINGS OF REGULATOR
SCHEDULE 4 - SAVINGS AND TRANSITIONAL PROVISIONS
4
ECONOMIC REGULATOR BILL 2009
(Brought in by the Premier, the Honourable David John
Bartlett)
A BILL FOR
An Act to establish the Tasmanian Economic Regulator, to
provide for investigations and inquiries into the pricing
policies of certain Government bodies that are monopoly,
or near monopoly, providers of services and goods in
Tasmania, to provide for the setting of maximum prices
chargeable by such bodies in respect of the supply of those
services and goods, to provide for inquiries into matters
relating to or affecting the pricing policies of certain
Government bodies whether or not they are monopoly, or
near monopoly, providers of services and goods, to provide
for investigations into complaints of breaches of the
national competition policy competitive neutrality
principles, to provide for the monitoring of certain prices
and certain activities of certain non-government bodies, to
provide for inquiries relating to methodologies for setting
taxi fares and to provide for related matters
Be it enacted by His Excellency the Governor of Tasmania, by
and with the advice and consent of the Legislative Council and
House of Assembly, in Parliament assembled, as follows:
PART 1 - PRELIMINARY
1. Short title
This Act may be cited as the Economic
Regulator Act 2009.
[Bill 81] 5
Economic Regulator Act 2009
Act No. of
s. 2 Part 1 - Preliminary
2. Commencement
This Act commences on a day to be proclaimed.
3. Interpretation
(1) In this Act, unless the contrary intention
appears -
"Agency" means an Agency within the
meaning of the State Service Act 2000,
other than a Government Business
Enterprise or statutory authority;
"amend" means -
(a) omit any matter; or
(b) insert or add any matter; or
(c) omit any matter and substitute
any other matter;
"ancillary service" means an ancillary
service within the meaning of the
National Electricity Rules;
"Cabinet record" means a record which -
(a) is referred to in section 24(1) of
the Freedom of Information Act
1991 or section 26 of the Right to
Information Act 2009; and
(b) contains exempt information,
within the meaning of that Act, to
which that section applies;
6
Economic Regulator Act 2009
Act No. of
Part 1 - Preliminary s. 3
"community service obligation" means -
(a) in respect of a monopoly provider
that is a Government Business
Enterprise, a community service
obligation within the meaning of
the Government Business
Enterprises Act 1995; or
(b) in respect of a monopoly provider
that is an Agency, statutory
authority, State-owned company
or Local Government Body, a
function, service or concession
performed, provided or allowed,
or proposed to be performed,
provided or allowed, by the
monopoly provider which, in the
opinion of the Regulator, would
not be performed, provided or
allowed if the monopoly provider
were a business in the private
sector acting in accordance with
sound commercial practice;
"complaint" means a complaint made by a
person under section 48;
"complaint investigation" means an
investigation into a complaint
commenced by the Regulator under
section 52;
"contract" includes agreement and
arrangement;
7
Economic Regulator Act 2009
Act No. of
s. 3 Part 1 - Preliminary
"council" has the same meaning as in the
Local Government Act 1993;
"dividend" includes a dividend within the
meaning of the Government Business
Enterprises Act 1995;
"employee" means a person who is, or whose
services are, made available to the
Regulator under section 17(1) or (2);
"enactment" means -
(a) an Act, order or other instrument
of a legislative character; or
(b) a provision of an Act, order or
other instrument of a legislative
character;
"final report" means a final report prepared
and provided under section 35;
"function" includes duty;
"Government Business Enterprise" has the
same meaning as in the Government
Business Enterprises Act 1995;
"Local Government Association of
Tasmania" means -
(a) the Local Government
Association of Tasmania
continued as a body corporate by
section 326 of the Local
Government Act 1993, whether or
8
Economic Regulator Act 2009
Act No. of
Part 1 - Preliminary s. 3
not that body has changed its
name; and
(b) if that body ceases to exist, any
other body that has substantially
the same purpose and performs
substantially the same functions;
"Local Government Body" means -
(a) a council; or
(b) a single authority, within the
meaning of the Local
Government Act 1993; or
(c) a joint authority, within the
meaning of the Local
Government Act 1993;
"member of the Regulator" means a person
appointed as a member of the Regulator
under section 15;
"ministerial charter" has the same meaning
as in the Government Business
Enterprises Act 1995;
"monopoly provider" means -
(a) a body specified in column 2 of
Schedule 1; or
(b) a prescribed body which provides
a monopoly service;
"monopoly provider investigation" means
an investigation that the Regulator is
9
Economic Regulator Act 2009
Act No. of
s. 3 Part 1 - Preliminary
required, by the Minister under
section 24, to conduct into the pricing
policies of a monopoly provider in
respect of a monopoly service;
"monopoly service" means a service declared
under section 6 to be a non-prescribed
monopoly service or a prescribed
monopoly service;
"national competition policy competitive
neutrality principles" means -
(a) the principles set out in clause 3
of the agreement called the
"Competition Principles
Agreement" entered into by the
governments of the
Commonwealth and each State
and Territory on 11 April 1995,
as amended or substituted from
time to time; or
(b) any policies adopted by the State
for the purpose of complying
with or giving effect to the
principles referred to in
paragraph (a);
"National Electricity Rules" has the same
meaning as in the National Electricity
Law which is contained in the schedule
(as amended from time to time) to the
National Electricity (South Australia) Act
1996 of South Australia;
10
Economic Regulator Act 2009
Act No. of
Part 1 - Preliminary s. 3
"non-prescribed monopoly service" means a
service declared under section 6 to be a
non-prescribed monopoly service;
"Portfolio Act" means -
(a) in respect of a monopoly provider
that is a Government Business
Enterprise or a statutory
authority, the enactment by or
under which that Government
Business Enterprise or statutory
authority is established or
continued, together with any
other enactment that is
incorporated with or required to
be read as one with that
enactment; or
(b) in respect of a monopoly provider
that is a Local Government Body,
the Local Government Act 1993;
"Portfolio Minister" -
(a) in respect of an Agency, means
the Minister to whom the Agency
is assigned; or
(b) in respect of a statutory authority
or Government Business
Enterprise constituted or
continued by or under an Act or a
provision of an Act, means the
Minister to whom the
administration of that Act or
provision is assigned; or
11
Economic Regulator Act 2009
Act No. of
s. 3 Part 1 - Preliminary
(c) in respect of a statutory authority
or Government Business
Enterprise not established,
constituted or continued by or
under an Act or a provision of an
Act, means the Minister to whom
the administration of the statutory
authority or Government
Business Enterprise is assigned;
or
(d) in respect of a Local Government
Body, means the Minister to
whom the administration of the
Local Government Act 1993 is
assigned; or
(e) in respect of a State-owned
company, means the Minister to
whom the administration of the
Act requiring or authorising the
formation of the company is
assigned;
"prescribed body" means -
(a) an Agency; or
(b) a Government Business
Enterprise; or
(c) a statutory authority; or
(d) a State-owned company; or
(e) a Local Government Body;
12
Economic Regulator Act 2009
Act No. of
Part 1 - Preliminary s. 3
"prescribed body inquiry" means an inquiry
that the Regulator is directed, by the
Minister under section 39(1), to conduct
in respect of the pricing policies of a
prescribed body;
"prescribed monopoly service" means a
service declared under section 6 to be a
prescribed monopoly service;
"price" includes charge and tariff;
"pricing policies" includes policies relating
to the level or structure of prices for
services;
"pricing policy determination" means a
determination made under
section 38(1)(b);
"pricing policy order" means an order made
under section 36(3)(b);
"Regulator" means the Tasmanian Economic
Regulator established under section 9;
"service" includes -
(a) the provision of public transport;
and
(b) the making available for use of
facilities of any kind; and
(c) the conferring of rights, benefits
or privileges for which a price is
payable in the form of a tribute,
levy or similar exaction; and
13
Economic Regulator Act 2009
Act No. of
s. 3 Part 1 - Preliminary
(d) the supply of any other good or
service declared under section 5
to be a service -
but does not include a water or sewerage
service, an ancillary service or other
service related to the supply of, or
security of the supply of, electricity, or
any good or service for which a State
charge is payable;
"State charge" means -
(a) a tax, or duty, imposed for the
public revenue purposes of the
State; or
(b) a payment, in the form of a
royalty, payable to the Crown, a
Government Business Enterprise
or State-owned company for the
exclusive right to access and
market a natural resource;
"State-owned company" means a company
incorporated under the Corporations Act
which is controlled by the Crown, a
Government Business Enterprise or a
statutory authority or by another
company which is so controlled;
"statutory authority" means an incorporated
or unincorporated body which is
established, constituted or continued by
or under an Act or under the royal
prerogative, being a body which, or of
which the governing authority, wholly or
14
Economic Regulator Act 2009
Act No. of
Part 1 - Preliminary s. 3
partly comprises a person or persons
appointed by the Governor, a Minister of
the Crown or another statutory authority;
"statutory rule" has the same meaning as in
the Rules Publication Act 1953;
"supply" includes provide;
"tax equivalent" means an income tax
equivalent, within the meaning of the
Government Business Enterprises Act
1995;
"taxi fare methodology inquiry" means an
inquiry the Regulator is directed, by the
Minister under section 44, to conduct
into appropriate methodologies in respect
of setting taxi fares;
"terms of reference" means the terms of
reference contained in a requirement
made under section 24;
"Transport Commission" means the
Transport Commission incorporated
under section 4 of the Transport Act
1981.
(2) For the purposes of the definition of "State-
owned company" in subsection (1), the
provisions of the Corporations Act relating to
control are taken to apply as if the Crown,
Government Business Enterprise or statutory
authority, as the case may be, were a corporation
under that Act.
15
Economic Regulator Act 2009
Act No. of
s. 4 Part 1 - Preliminary
4. Maximum prices defined
Maximum prices may be expressed in one or
more of the following terms:
(a) maximum prices or the maximum rate of
increase or the minimum rate of decrease
in maximum prices;
(b) average prices or average rates of
increase or decrease in such average
prices;
(c) pricing policies or principles;
(d) by reference to a general price index, the
cost of production, revenue, a rate of
return on assets or any other factor;
(e) by reference to quantity, location or
period of supply of a monopoly service;
(f) any other terms the Regulator or the
Minister, as the case requires, considers
appropriate.
5. Declaration of service
(1) By notice published in the Gazette, the Minister
may declare the supply of a good or service to be
a service.
(2) By notice published in the Gazette, the Minister
may amend or revoke a declaration made under
subsection (1).
16
Economic Regulator Act 2009
Act No. of
Part 1 - Preliminary s. 6
(3) A notice under this section is not a statutory rule.
6. Declaration of monopoly service
(1) By notice published in the Gazette, the Minister
may declare a service supplied by a prescribed
body to be a non-prescribed monopoly service,
or a prescribed monopoly service, if -
(a) the Minister is satisfied that it is a service
for which -
(i) there are no other suppliers to
provide competition in the
relevant market; and
(ii) there is no contestable market by
potential suppliers in the short
term; and
(b) the Portfolio Minister has agreed to the
making of the declaration.
(2) Despite subsection (1), the Minister may not
declare a service to be a prescribed monopoly
service under that subsection unless the service
is provided by a monopoly provider specified in
Schedule 1.
(3) A declaration under subsection (1) may specify
the day by which the Minister is to require the
Regulator to conduct its first investigation under
section 24(2) or (3) into the pricing policies of a
monopoly provider in respect of the service
which is the subject of the declaration.
17
Economic Regulator Act 2009
Act No. of
s. 7 Part 1 - Preliminary
(4) Before making a declaration under
subsection (1) in respect of a service supplied by
one or more Local Government Bodies, the
Minister is to consult with such of those Local
Government Bodies as the Minister considers
appropriate.
(5) By notice published in the Gazette, the Minister
may amend or revoke a declaration made under
subsection (1) if the Portfolio Minister of the
prescribed body which is the subject of the
declaration has agreed to it.
(6) A notice under this section is not a statutory rule.
7. Act binds Crown
This Act binds the Crown in right of Tasmania
and, so far as the legislative power of Parliament
permits, in all its other capacities.
8. Inconsistency between this Act and another Act
If a provision of this Act is inconsistent with a
provision of a Portfolio Act or any other Act, the
provision of this Act prevails and the provision
of the Portfolio Act or other Act is, to the extent
of the inconsistency, invalid except where the
Portfolio Act or other Act expressly provides
otherwise.
18
Economic Regulator Act 2009
Act No. of
Part 2 - Tasmanian Economic Regulator s. 9
PART 2 - TASMANIAN ECONOMIC REGULATOR
Division 1 - Tasmanian Economic Regulator
9. Tasmanian Economic Regulator
(1) The Tasmanian Economic Regulator is
established.
(2) The Regulator -
(a) is a body corporate with perpetual
succession; and
(b) has a seal; and
(c) may sue and be sued in its corporate
name.
(3) The seal is to be kept and used as authorised by
the Regulator.
(4) All courts and persons acting judicially must
take judicial notice of the imprint of the seal on a
document and presume that the document was
duly sealed by the Regulator.
10. Functions of Regulator
The Regulator has the following functions:
(a) to conduct monopoly provider
investigations and provide a final report
in respect of each such investigation;
19
Economic Regulator Act 2009
Act No. of
s. 11 Part 2 - Tasmanian Economic Regulator
(b) to conduct prescribed body inquiries and
provide a report in respect of each such
inquiry;
(c) to conduct taxi fare methodology
inquiries and provide a report in respect
of each such inquiry;
(d) to conduct complaint investigations and,
if required under section 57, to provide a
report in respect of a complaint
investigation;
(e) other functions imposed on the Regulator
under this or any other Act.
11. Powers of Regulator generally
The Regulator has the following powers:
(a) to enter into contracts;
(b) to appoint agents, attorneys and
consultants;
(c) to act as a consultant or agent, including
in respect of the monitoring of prices of
petroleum products;
(d) to set charges, terms and conditions
relating to the performance and exercise
of its functions and powers;
(e) to do all other things it is authorised to
do under this or any other Act;
20
Economic Regulator Act 2009
Act No. of
Part 2 - Tasmanian Economic Regulator s. 12
(f) to do all things necessary or convenient
to be done in connection with the
performance and exercise of its functions
and powers.
12. Power to publish guidelines
The Regulator may publish guidelines relating to
the performance and exercise of its functions and
powers.
13. Delegation
The Regulator may delegate to a member of the
Regulator or an employee any of its functions or
powers under this or any other Act, other than -
(a) this power of delegation; and
(b) its function of providing a final report;
and
(c) its function of approving a determination
or amendment relating to prices under
section 37.
14. Regulator not subject to Ministerial control
Except as otherwise provided by or under this or
any other Act, the Regulator is not subject to the
control or direction of the Minister or any other
Minister in respect of a monopoly provider
investigation, prescribed body inquiry, complaint
21
Economic Regulator Act 2009
Act No. of
s. 15 Part 2 - Tasmanian Economic Regulator
investigation, taxi fare methodology inquiry,
report or recommendation under this Act.
Division 2 - Membership of Regulator
15. Membership of Regulator
(1) The Regulator consists of 3 persons appointed
by the Minister.
(2) The Minister is to appoint a member of the
Regulator as its chairperson.
(3) In appointing a person to be a member of the
Regulator, the Minister is to be satisfied that the
person -
(a) has knowledge of, or experience in,
industry, commerce, economics, law or
public administration; or
(b) has knowledge of, or experience in, the
regulation of utilities or the provision of
services by a monopoly provider or other
utility.
(4) Schedule 2 has effect with respect to the
membership of the Regulator.
(5) Schedule 3 has effect with respect to meetings of
the Regulator.
22
Economic Regulator Act 2009
Act No. of
Part 2 - Tasmanian Economic Regulator s. 16
16. Acting member of Regulator
(1) For the purposes of this section, a member of the
Regulator is absent if he or she -
(a) is absent from duty; or
(b) is disqualified under clause 6(2) of
Schedule 3 from taking part in a
consideration of, or the making of a
decision in relation to, any matter or any
other proceeding of the Regulator in
relation to the matter; or
(c) is otherwise unable to perform the
functions of the office of member of the
Regulator.
(2) The Minister may appoint a person to act as a
member of the Regulator during any particular,
or every, period during which the member of the
Regulator is absent.
(3) The Minister is not to make an appointment of a
person to act as a member of the Regulator
unless the Minister is satisfied that the person
has the knowledge and experience necessary for
appointment as a member of the Regulator.
(4) The appointment of a person under
subsection (2) to act in the office of the member
of the Regulator who is its chairperson is not an
appointment to act in the office of chairperson.
(5) The appointment of a person under
subsection (2) is subject to, and has effect in
accordance with, the terms and conditions
23
Economic Regulator Act 2009
Act No. of
s. 16 Part 2 - Tasmanian Economic Regulator
(including remuneration and allowances)
specified in the instrument of appointment.
(6) If a vacancy, within the meaning of clause 5 of
Schedule 2 occurs in the office of a member of
the Regulator while a person appointed under
subsection (2) is acting in the office of that
member, that person may continue to act in the
office of that member until the first of the
following happens:
(a) the period of 6 months commencing on
the day on which the vacancy occurs
ends;
(b) the Minister appoints a person to that
vacant office under section 15 or clause 6
of Schedule 2.
(7) Anything done by or in relation to a person
purporting to act as a member of the Regulator is
not invalid merely because -
(a) there is a defect or irregularity in relation
to the appointment of that person; or
(b) the occasion for the appointment of that
person has not arisen; or
(c) the appointment of that person has
ceased to have effect; or
(d) the occasion for that person to act as a
member of the Regulator has not arisen
or has ceased.
24
Economic Regulator Act 2009
Act No. of
Part 2 - Tasmanian Economic Regulator s. 17
(8) While a person is acting as a member of the
Regulator, that person is taken to be a member of
the Regulator.
Division 3 - Staff, assistance and facilities
17. Staff of Regulator
(1) The Regulator may arrange with the Secretary of
the Department for State Service officers and
State Service employees employed in the
Department to be made available to enable the
Regulator to perform and exercise its functions
and powers.
(2) On the written request of the Regulator, the
Secretary of the Department may arrange with
another Head of a State Service Agency for State
Service officers and State Service employees
employed in that Agency, or with an employer
for the services of a person employed by that
employer, to be made available to the Regulator
for the purpose of enabling the Regulator to
perform and exercise its functions and powers.
(3) State Service officers and State Service
employees made available under subsection (1)
or (2) may serve the Regulator in conjunction
with State Service employment.
(4) All expenses associated with the use by the
Regulator of the services of a person referred to
in subsection (1) or (2) are to be met by the
Regulator.
25
Economic Regulator Act 2009
Act No. of
s. 18 Part 2 - Tasmanian Economic Regulator
18. Assistance and facilities
(1) The Regulator may arrange with one or more of
the following persons to provide assistance to it
to enable it to perform and exercise its functions
and powers:
(a) a Head of an Agency;
(b) a Government Business Enterprise,
statutory authority or State-owned
company if approved by the Minister and
Portfolio Minister, in writing;
(c) a Local Government Body if approved,
in writing, by the Minister and the
Minister to whom the administration of
the Local Government Act 1993 is
assigned;
(d) a body, or the governing authority of a
body, that has price-fixing functions or
functions similar to those of the
Regulator.
(2) The Regulator may make arrangements with one
or more of the following persons for facilities to
be provided to it to enable it to perform and
exercise its functions and powers:
(a) the Secretary of the Department;
(b) the Head of another Agency;
(c) a Government Business Enterprise;
(d) a Local Government Body;
26
Economic Regulator Act 2009
Act No. of
Part 2 - Tasmanian Economic Regulator s. 19
(e) a statutory authority;
(f) a State-owned company.
Division 4 - Finances of Regulator
19. Funds
(1) The funds of the Regulator consist of -
(a) all money received by it in the course of
performing its functions and exercising
its powers; and
(b) money appropriated by Parliament for
the purposes of the Regulator; and
(c) all other money received by it from any
other source.
(2) The funds of the Regulator are to be paid into an
account in the Special Deposits and Trust Fund.
(3) Money standing to the credit of the account in
the Special Deposits and Trust Fund may be
applied -
(a) in the payment or discharge of the
expenses, charges and obligations
incurred or undertaken by the Regulator
in the performance and the exercise of its
functions and its powers; and
(b) in the payment of the remuneration and
allowances of the members of the
27
Economic Regulator Act 2009
Act No. of
s. 20 Part 2 - Tasmanian Economic Regulator
Regulator and acting members of the
Regulator; and
(c) in meeting the expenses incurred by the
Regulator in respect of -
(i) the use of the services of persons
referred to in section 17(1) and
(2); and
(ii) the assistance provided under
section 18(1); and
(iii) the use of facilities referred to in
section 18(2); and
(d) in the payment of allowances and
expenses under section 29(2); and
(e) in any other manner authorised or
required under this or any other Act.
20. Costs of monopoly provider investigations
(1) In this section -
"estimated resident population", in respect
of a municipal area, means the most
recent estimated resident population for
that area published from time to time by
the Australian Statistician under the
Census and Statistics Act 1905 of the
Commonwealth;
28
Economic Regulator Act 2009
Act No. of
Part 2 - Tasmanian Economic Regulator s. 20
"investigated monopoly service" means a
monopoly service which is the subject of
a monopoly provider investigation.
(2) A monopoly provider that supplies an
investigated monopoly service is liable for the
whole or part of the reasonable expenses
incurred by the Regulator arising from the
conduct and reporting of the monopoly provider
investigation (including expenses incurred in
making a final report available to the public) as
jointly determined by the Minister and Portfolio
Minister by written notice provided to the
Regulator and the monopoly provider.
(3) If an investigated monopoly service is supplied
by 2 or more Local Government Bodies, all of
which are councils, the amount of the expenses
each council is liable to pay is to be determined
in accordance with the following formula:
where -
"A" is the amount to be paid by a council;
"P" is the estimated resident population of the
municipal area in respect of which the
council was established;
"TA" is the total amount determined under
subsection (2) to be payable by all the
councils supplying the investigated
monopoly service;
29
Economic Regulator Act 2009
Act No. of
s. 21 Part 2 - Tasmanian Economic Regulator
"TP" is the total of the estimated resident
populations of all the municipal areas in
respect of which all those councils were
established.
(4) If more than one council supplies the
investigated monopoly service, the amount of
the expenses determined to be payable by each
council is to be specified in the notice provided
under subsection (2).
(5) If a monopoly provider which is a Local
Government Body is liable to pay the whole or
part of the expenses referred to in subsection (2),
the Minister is to provide a copy of the notice
referred to in that subsection to the Local
Government Association of Tasmania.
(6) The Regulator may recover the expenses referred
to in subsection (2) as a debt due to it in a court
of competent jurisdiction.
21. Financial statements
(1) The financial statements of the Regulator are
to -
(a) be prepared and certified as specified in a
direction given under subsection (2); and
(b) present fairly -
(i) the financial transactions of the
Regulator during the financial
year to which the report relates in
relation to the performance of its
30
Economic Regulator Act 2009
Act No. of
Part 2 - Tasmanian Economic Regulator s. 22
functions under this and any other
Act; and
(ii) the state of affairs of the
Regulator at the end of that
financial year; and
(c) comply with any other direction given
under subsection (2).
(2) The Treasurer may give written directions to the
Regulator in respect of the form, contents,
preparation, certification and provision of its
financial statements.
(3) Directions under subsection (2) may adopt,
wholly or partly, with or without modification
and either specifically or by reference, any of the
Treasurer's Instructions made under the
Financial Management and Audit Act 1990.
Division 5 - Annual report
22. Annual report
(1) In respect of each financial year the Regulator is
to prepare a report which includes -
(a) a report on the performance and exercise
of the Regulator's functions and powers
under this and any other Act; and
(b) the particulars of any contravention of
the national competition policy
competitive neutrality principles -
31
Economic Regulator Act 2009
Act No. of
s. 22 Part 2 - Tasmanian Economic Regulator
(i) that a prescribed body admits to
having committed in response to
a complaint; or
(ii) that the Regulator, during a
complaint inquiry, prescribed
body inquiry or monopoly
provider investigation,
determines has been committed
by a prescribed body; and
(c) whether any action was taken by a
prescribed body referred to in
paragraph (b) in relation to its
contravention of the national competition
policy competitive neutrality principles
and, if so, what that action was; and
(d) the financial statements of the Regulator;
and
(e) the Auditor-General's report on those
financial statements; and
(f) any information the Minister, by written
notice provided to the Regulator, requires
to be included; and
(g) any other information the Regulator
considers appropriate to be included.
(2) The Regulator is to provide a copy of the annual
report to the Minister so as to enable it to be
tabled in accordance with section 23.
32
Economic Regulator Act 2009
Act No. of
Part 2 - Tasmanian Economic Regulator s. 23
23. Tabling of annual report
(1) By 31 October in each year the Minister is to
cause a copy of the annual report to be laid
before each House of Parliament.
(2) If the Minister is unable to comply with
subsection (1) because a House of Parliament is
not sitting on 31 October in any year, the
Minister is to -
(a) on or before that day, provide copies of
the annual report to the clerk of that
House; and
(b) on or before that day, make copies of the
annual report available for purchase by
the public; and
(c) within the first 7 sitting-days after that
day, cause copies of the annual report to
be laid before that House.
33
Economic Regulator Act 2009
Act No. of
s. 24 Part 3 - Monopoly Provider Investigations
PART 3 - MONOPOLY PROVIDER INVESTIGATIONS
Division 1 - Commencing monopoly provider investigation
24. Requirement to conduct monopoly provider
investigation
(1) In this section -
"affected Local Government Body", in
relation to a proposed investigation into
the pricing policies of a monopoly
provider in respect of a monopoly service
(whether a prescribed monopoly service
or non-prescribed monopoly service),
means -
(a) that monopoly provider if it is a
Local Government Body; or
(b) if that monopoly provider is a
single authority, or joint
authority, established under
section 33 of the Local
Government Act 1993, the Local
Government Body or Local
Government Bodies that so
established the single authority or
joint authority;
"initial requirement day", in relation to a
monopoly provider supplying a
monopoly service -
(a) means the day specified in the
declaration under section 6
34
Economic Regulator Act 2009
Act No. of
Part 3 - Monopoly Provider Investigations s. 24
declaring that service to be a
monopoly service as the day by
which the Minister is to require
the Regulator to conduct its first
investigation into the pricing
policies of the monopoly provider
in respect of that service under
this section; or
(b) if the declaration under section 6
declaring that service to be a
monopoly service does not
specify such a day, means the last
day of the period of 3 months
after the declaration takes effect.
(2) On or before the initial requirement day, the
Minister is to require the Regulator to conduct an
investigation into the pricing policies of a
monopoly provider (whether or not specified in
Schedule 1) in respect of a monopoly service
supplied by that monopoly provider.
(3) At least 11 months before the expiration of a
pricing policy order or a pricing policy
determination in relation to a monopoly provider
specified in Schedule 1, the Minister is to require
the Regulator to conduct an investigation into
the pricing policies of that monopoly provider in
respect of each prescribed monopoly service
supplied by the monopoly provider.
(4) At any time, in writing provided to the
Regulator, the Minister may require the
Regulator to conduct an investigation into the
pricing policies of a monopoly provider (whether
35
Economic Regulator Act 2009
Act No. of
s. 24 Part 3 - Monopoly Provider Investigations
or not specified in Schedule 1) in respect of any
monopoly service supplied by the monopoly
provider and specified in the requirement.
(5) Despite subsections (3) and (4), the Minister
may not require the Regulator to conduct a
monopoly provider investigation into the pricing
policies of a monopoly provider that is a Local
Government Body if -
(a) a pricing policy order (the "original
order") or a pricing policy determination
(the "original determination") is in force
in respect of a monopoly service supplied
by that monopoly provider; and
(b) a purpose of the investigation is to
determine whether the original order or
original determination should be revoked
and another pricing policy order or
pricing policy determination be made
that would be in force during the whole
or any part of the period during which
the original order or determination would
have been in force had it not been
revoked -
unless at least half of all affected Local
Government Bodies have first agreed to the
requirement being made.
(6) A requirement under subsection (2), (3) or (4) -
(a) is to contain the terms of reference for
the monopoly provider investigation; and
36
Economic Regulator Act 2009
Act No. of
Part 3 - Monopoly Provider Investigations s. 24
(b) may be made in respect of one or more
monopoly providers and one or more
monopoly services; and
(c) may specify a contract or class of
contract the terms of which the Regulator
is to not investigate in relation to prices
or publish to any person.
(7) The Minister may amend, by written notice
provided to the Regulator and the monopoly
provider, a requirement under subsection (2), (3)
or (4) if the Regulator has not made a final report
in respect of the monopoly provider
investigation.
(8) Before providing a requirement under
subsection (2), (3) or (4) or amending a
requirement under subsection (7), the Minister is
to first -
(a) obtain the agreement of the Portfolio
Minister to the provision or amendment
of the requirement; and
(b) if the required monopoly provider
investigation is to be in relation to a
monopoly service supplied by a
monopoly provider which is a Local
Government Body, consult with the
Local Government Association of
Tasmania with respect to the provision or
amendment of the requirement.
(9) The Regulator is to comply with a requirement,
or an amended requirement, made under this
section.
37
Economic Regulator Act 2009
Act No. of
s. 25 Part 3 - Monopoly Provider Investigations
25. Terms of reference
The terms of reference for a monopoly provider
investigation are to -
(a) broadly describe the functions and other
activities of the monopoly provider; and
(b) specify the pricing policies and the
monopoly service or part of a monopoly
service to be investigated; and
(c) specify the day by which the Regulator is
to provide its final report in respect of the
investigation; and
(d) specify the matters not referred to in
section 31 which the Regulator is to take
into account when conducting the
investigation; and
(e) if the Minister and the Portfolio Minister
consider it appropriate, specify which of
the matters referred to in paragraph (d)
are to be considered by the Regulator to
be of more importance than any other
such matters; and
(f) specify the period for which any pricing
policy order or pricing policy
determination made in relation to a
monopoly provider as a result of the
investigation would be in force, being -
(i) in the case of a monopoly
provider specified in Schedule 1,
the period specified in that
38
Economic Regulator Act 2009
Act No. of
Part 3 - Monopoly Provider Investigations s. 26
Schedule in relation to that
monopoly provider; or
(ii) in the case of a monopoly
provider not specified in
Schedule 1, a period that does not
exceed 5 years; and
(g) require the Regulator to make a
recommendation in relation to
appropriate maximum prices to be
chargeable in respect of the monopoly
service supplied by the monopoly
provider during the period for which any
pricing policy order or pricing policy
determination made as a result of the
investigation would be in force; and
(h) specify whether the Regulator is to make
a draft report in respect of the
investigation available during the
conduct of the investigation.
26. Notice of monopoly provider investigation
(1) On receipt of a requirement to conduct a
monopoly provider investigation, the Regulator
is to give notice of the investigation -
(a) in writing provided to the monopoly
provider; and
(b) in daily newspapers published and
circulating generally in Tasmania as the
Regulator considers appropriate; and
39
Economic Regulator Act 2009
Act No. of
s. 27 Part 3 - Monopoly Provider Investigations
(c) if the monopoly provider is a Local
Government Body, in writing provided to
the Local Government Association of
Tasmania.
(2) A notice of a monopoly provider investigation is
to specify -
(a) the purpose of the investigation; and
(b) the period during which the investigation
is to be held; and
(c) the period within which, and the form in
which, submissions may be made to the
Regulator; and
(d) the matters that the Regulator would like
submissions to address; and
(e) how copies of the terms of reference may
be obtained.
(3) If the Minister amends a requirement to conduct
a monopoly provider investigation, the Regulator
is to give notice of that amendment to the same
persons and in the same manner as notice of the
investigation was given.
Division 2 - Conduct of monopoly provider investigation
27. Conduct of monopoly provider investigations
(1) The Regulator is to conduct a monopoly
provider investigation in accordance with a
40
Economic Regulator Act 2009
Act No. of
Part 3 - Monopoly Provider Investigations s. 28
requirement provided under section 24 and the
terms of reference.
(2) Subject to this Act, the Regulator may conduct a
monopoly provider investigation in such manner
as it considers appropriate and, in particular,
may at its discretion -
(a) receive written and oral submissions; and
(b) consult with any person; and
(c) hold hearings and seminars; and
(d) conduct workshops; and
(e) determine whether any person wishing to
appear before the Regulator may be
represented by another person.
(3) In conducting a monopoly provider
investigation, the Regulator is not bound by rules
of evidence but may inform itself of any matter
in such manner it considers appropriate.
28. Hearings
(1) Before holding a hearing, the Regulator is to
give reasonable notice of the hearing in daily
newspapers published and circulating generally
in Tasmania as the Regulator considers
appropriate.
(2) The notice of a hearing is to specify -
(a) the purpose of the hearing; and
41
Economic Regulator Act 2009
Act No. of
s. 28 Part 3 - Monopoly Provider Investigations
(b) the time and place at which the hearing is
to be held.
(3) A hearing is to be held in public.
(4) Despite subsection (3), if the Regulator is
satisfied that it would be in the public interest to
do so or that evidence to be presented is, or is
likely to be, of a confidential or commercially
sensitive nature, the Regulator is to -
(a) direct that a hearing or part of a hearing
is to take place in private and give
directions as to the persons who may be
present; and
(b) give directions prohibiting or restricting
the publication of evidence given or
documents produced at the hearing.
(5) A person must not contravene a direction given
under subsection (4)(b).
Penalty: Fine not exceeding 100 penalty units
or a term of imprisonment not
exceeding 6 months, or both.
(6) The Freedom of Information Act 1991 and the
Right to Information Act 2009 do not apply in
respect of -
(a) evidence and documents in respect of
which a direction under subsection (4)(b)
has been made; or
(b) records of the giving or production of
such evidence and documents.
42
Economic Regulator Act 2009
Act No. of
Part 3 - Monopoly Provider Investigations s. 29
29. Requiring person to give evidence or provide
document
(1) For the purposes of a monopoly provider
investigation, the Regulator may require a
person, by written notice provided to the person,
to do any one or more of the following:
(a) attend before the Regulator and answer
questions which, in the opinion of the
Regulator, are relevant to the
investigation;
(b) provide to the Regulator, in the manner
specified in the notice, any document
specified in the notice which is in the
person's possession or control and
which, in the opinion of the Regulator, is
relevant to the investigation;
(c) provide to the Regulator, in the manner
specified in the notice, any other
information specified in the notice
which, in the opinion of the Regulator, is
relevant to the investigation.
(2) A person who attends before the Regulator under
a requirement referred to in subsection (1)(a)
may, at the Regulator's discretion, be paid by the
Regulator -
(a) the prescribed allowances and expenses;
or
(b) if the regulations do not prescribe any
allowances and expenses, such
allowances and expenses as the Minister
43
Economic Regulator Act 2009
Act No. of
s. 30 Part 3 - Monopoly Provider Investigations
determines by notice published in the
Gazette.
(3) Despite subsection (1), the Regulator may not
require a person -
(a) to answer a question, or provide
information, if to do so would require the
person to divulge information contained
in or relating to a Cabinet record; or
(b) to provide to the Regulator a Cabinet
record.
(4) A notice under subsection (2)(b) is not a
statutory rule.
30. Use of documents or other information
(1) The Regulator -
(a) may examine, take possession of, make
copies of and take extracts from any
document provided under a requirement
referred to in section 29(1)(b) or (c); and
(b) may retain that document for so long as
is necessary for the purposes of the
monopoly provider investigation; and
(c) is to allow a person who would be
entitled to inspect the document if it were
not in the possession of the Regulator to
inspect it, make a copy of it or take an
extract from it at any reasonable time.
44
Economic Regulator Act 2009
Act No. of
Part 3 - Monopoly Provider Investigations s. 30
(2) The Regulator may give directions prohibiting or
restricting the publication of any answer,
document or other information provided to it
under a requirement referred to in section 29(1),
a part of any such answer, document or other
information or a copy of or extract from any
such answer, document, other information or
part.
(3) A person must not contravene a direction given
under subsection (2).
Penalty: Fine not exceeding 100 penalty units
or a term of imprisonment not
exceeding 6 months, or both.
(4) The Regulator may make any answer, document
or other information provided to it under a
requirement referred to in section 29(1), or part
of any such answer, document or other
information, available to any person as the
Regulator considers appropriate except where -
(a) a direction in respect of the answer,
document, other information or part has
been given under subsection (2) and its
provision to that person would
contravene the direction; or
(b) the answer, document, other information
or part contains information which is
exempt information under the Freedom
of Information Act 1991 or the Right to
Information Act 2009.
45
Economic Regulator Act 2009
Act No. of
s. 31 Part 3 - Monopoly Provider Investigations
31. Matters to be considered
In a monopoly provider investigation, the
Regulator is to consider the following matters:
(a) the cost of supplying or providing the
monopoly service;
(b) any interstate or international
benchmarks for prices, costs, revenues
and return on assets in bodies supplying
a service similar to the monopoly
service;
(c) the need to protect consumers from the
adverse effects of the exercise of
monopoly power by a monopoly
provider in relation to prices, pricing
policies and standards of service in
respect of the supply of the monopoly
service;
(d) if appropriate, the need for a reasonable
return (including the payment of
dividends) on the assets of a monopoly
provider;
(e) the need for efficiency in the supply of
the monopoly service for the purpose of
benefiting the public interest through a
reduction in the cost of supplying the
monopoly service;
(f) the effects of inflation;
(g) the need for the monopoly provider to be
financially viable;
46
Economic Regulator Act 2009
Act No. of
Part 3 - Monopoly Provider Investigations s. 32
(h) the impact on pricing policies of any
borrowing, capital, dividend and tax
equivalent obligations of the monopoly
provider, including obligations to renew
or increase assets;
(i) any ministerial charter that applies to the
monopoly provider;
(j) in the case of a monopoly provider that is
a State-owned company, any statement
of expectations from the shareholders or
other similar document;
(k) any relevant provision in the Portfolio
Act or any other Act;
(l) any community service obligations of the
monopoly provider;
(m) the quality of the supply of the monopoly
service;
(n) the matters set out in the terms of
reference;
(o) any other matter the Regulator considers
relevant.
32. Limitations on monopoly provider investigation and
reporting
(1) The Regulator is not to investigate the terms of a
contract, or the terms of a contract which is a
member of a class of contracts, if that
47
Economic Regulator Act 2009
Act No. of
s. 32 Part 3 - Monopoly Provider Investigations
investigation is prohibited by the requirement to
investigate under section 24.
(2) Except as authorised or required by law, the
Regulator, a member of the Regulator or an
employee is not to publish or otherwise divulge a
document, part of a document or other
information that came into its, his or her
possession as a result of the Regulator
performing or exercising its functions or powers
if that document, part or information is or
contains -
(a) a contract or the terms of a contract
referred to in subsection (1); or
(b) a contract or the terms of a contract if the
Regulator was prohibited by this section
from investigating the contract or terms
at the time the contract or terms came
into the possession of the Regulator; or
(c) information which, if published, could
cause damage to the commercial interests
of a monopoly provider.
(3) The Freedom of Information Act 1991 and the
Right to Information Act 2009 do not apply in
respect of -
(a) a document, part of a document or
information the publication of which is
prohibited by subsection (2); or
(b) records of the giving, production or
obtaining of that document, part of a
document or information.
48
Economic Regulator Act 2009
Act No. of
Part 3 - Monopoly Provider Investigations s. 33
33. Offences
(1) A person must not -
(a) fail to comply with a requirement made
under section 29(1); or
(b) provide to the Regulator, in relation to a
monopoly provider investigation, oral or
written information or a document that
the person knows or believes to be false
or misleading in a material particular
without informing the Regulator of that
knowledge or belief; or
(c) hinder, obstruct or interfere with the
Regulator, a member of the Regulator or
any other person in the performance or
exercise of its, his or her functions or
powers under this Part; or
(d) take, or threaten to take, any action that
detrimentally affects the employment of
another person because that other person
has assisted, is assisting or intends to
assist the Regulator in a monopoly
provider investigation.
Penalty: Fine not exceeding 500 penalty units
or a term of imprisonment not
exceeding 6 months, or both.
(2) Despite subsection (1), a person is not required
to comply with a requirement made under
section 29(1) if to do so would tend to
incriminate him or her.
49
Economic Regulator Act 2009
Act No. of
s. 34 Part 3 - Monopoly Provider Investigations
Division 3 - Action following monopoly provider
investigation
34. Draft report
(1) If the terms of reference require that a draft
report be made available, the Regulator is to, at
an appropriate time during the monopoly
provider investigation -
(a) provide a copy of the draft report to -
(i) the Minister; and
(ii) the Portfolio Minister; and
(iii) the monopoly provider specified
in the terms of reference; and
(iv) if that monopoly provider is a
Local Government Body, the
Local Government Association of
Tasmania; and
(b) make copies of the draft report available
for free or for purchase by the public as
the Regulator considers appropriate.
(2) Even if this Act or the terms of reference do not
require the Regulator to make a draft report
available -
(a) the Regulator -
(i) is to provide a copy of a draft
report to each person and body
referred to in subsection (1)(a) if
50
Economic Regulator Act 2009
Act No. of
Part 3 - Monopoly Provider Investigations s. 35
the Minister and the Portfolio
Minister, jointly, require it to do
so by written notice provided to
the Regulator; and
(ii) at its discretion, may provide a
copy of a draft report to each
person and body referred to in
subsection (1)(a); and
(b) the Regulator may make copies of a draft
report available for free or for purchase
by the public if the Minister and the
Portfolio Minister agree in writing.
(3) A draft report is not to contain any matter that is
not supported by every member of the Regulator
in respect of the monopoly provider supplying
the monopoly service which is the subject of the
monopoly provider investigation.
(4) If a draft report is provided or made available to
any person or body, the Regulator is to -
(a) allow persons and bodies to whom it has
been provided or made available to make
submissions in respect of the report to
the Regulator; and
(b) take any such submissions into
consideration before making a final
report.
35. Final report
(1) In this section -
51
Economic Regulator Act 2009
Act No. of
s. 35 Part 3 - Monopoly Provider Investigations
"relevant monopoly provider" means the
monopoly provider supplying the
monopoly service which is the subject of
the monopoly provider investigation.
(2) The Regulator, by the day specified in the terms
of reference, is to -
(a) prepare a final report in respect of the
monopoly provider investigation; and
(b) provide a copy of that final report to -
(i) the Minister; and
(ii) the Portfolio Minister; and
(iii) the relevant monopoly provider;
and
(iv) if that monopoly provider is a
Local Government Body, the
Local Government Association of
Tasmania.
(3) The final report is to -
(a) be consistent with this Act and the terms
of reference; and
(b) make a recommendation in relation to the
appropriate maximum prices chargeable
by the relevant monopoly provider
during the period that any pricing policy
order or pricing policy determination that
may result from the investigation would
be in force; and
52
Economic Regulator Act 2009
Act No. of
Part 3 - Monopoly Provider Investigations s. 36
(c) include any views or statements of a
member of the Regulator that are
contrary to the views and statements of
the Regulator.
(4) Within 20 sitting-days after receiving a final
report, the Portfolio Minister is to lay a copy of
the final report before each House of Parliament.
(5) The Regulator is to ensure that copies of a final
report are available for purchase by members of
the public -
(a) as soon as practicable after it is laid
before a House of Parliament; or
(b) if a copy of the final report cannot be laid
before either House of Parliament within
30 days after it is received by the
Portfolio Minister because neither House
is sitting, within that 30-day period.
36. Pricing policy order
(1) In this section -
"prescribed monopoly provider" means -
(a) a monopoly provider specified in
Schedule 1; or
(b) a monopoly provider declared to
be a prescribed monopoly
provider under subsection (2) -
53
Economic Regulator Act 2009
Act No. of
s. 36 Part 3 - Monopoly Provider Investigations
but does not include a monopoly
provider which has been declared under
subsection (9) not to be a prescribed
monopoly provider.
(2) The Minister and the Portfolio Minister, jointly,
by notice published in the Gazette may declare a
monopoly provider to be a prescribed monopoly
provider.
(3) Within 90 days after receiving a copy of a final
report in respect of a monopoly provider
investigation in relation to a monopoly service
supplied by a prescribed monopoly provider, the
Portfolio Minister is to -
(a) provide a copy of the recommendations
contained in the final report to each
Minister of the Crown; and
(b) make an order specifying the maximum
prices which may be charged by the
prescribed monopoly provider in respect
of that monopoly service during the
period in which the order is in force,
taking into consideration -
(i) the recommendations referred to
in paragraph (a); and
(ii) any comments received in
relation to those
recommendations from any
Minister of the Crown, the
monopoly provider and, if the
monopoly provider is a Local
Government Body, the Local
54
Economic Regulator Act 2009
Act No. of
Part 3 - Monopoly Provider Investigations s. 36
Government Association of
Tasmania.
(4) A pricing policy order -
(a) is to repeal, rescind, revoke or amend any
statutory rule that prescribes, or relates to
the setting or determination of, the price
chargeable by the prescribed monopoly
provider for the monopoly service in
respect of which the order is made to
ensure that the only statutory rule setting
or determining, or relating to the setting
or determination of, the maximum price
chargeable is the order itself; and
(b) is to amend an Act, other than this Act,
that requires or authorises the
prescribing, setting or determination, by
statutory rule, of the price or maximum
price chargeable by the monopoly
provider for the monopoly service in
respect of which the order is made to
remove that requirement or authorisation,
and provisions relating to that
requirement or authorisation, from that
Act; and
(c) takes effect on the 61st day after
notification of its making is published in
the Gazette; and
(d) is a statutory rule.
(5) Section 47 (3), (3A), (4), (5), (6) and (7) of the
Acts Interpretation Act 1931 applies to a pricing
55
Economic Regulator Act 2009
Act No. of
s. 37 Part 3 - Monopoly Provider Investigations
policy order as if it were regulations within the
meaning of that Act.
(6) Despite subsection (5), a House of Parliament
may pass a resolution to approve a pricing policy
order at any time within the first 15 sitting-days
of that House after the order is laid before it.
(7) The Treasurer may not, under section 3 (2) of the
Subordinate Legislation Act 1992, declare a
pricing policy order to be subordinate legislation
for the purposes of that Act.
(8) A pricing policy order may be amended at any
time even if a pricing policy investigation with
respect to the monopoly service to which the
order relates has not been conducted since the
making of the order.
(9) At any time, the Minister and the Portfolio
Minister jointly, by notice published in the
Gazette, may declare that a monopoly provider
referred to in paragraph (a) or (b) of the
definition of "prescribed monopoly provider" in
subsection (1) is not a prescribed monopoly
provider.
(10) A notice under subsection (2) or (9) is not a
statutory rule.
37. Action by monopoly provider following pricing
policy order
(1) Within the period of 45 days immediately after a
pricing policy order in respect of a monopoly
56
Economic Regulator Act 2009
Act No. of
Part 3 - Monopoly Provider Investigations s. 37
service is made, the monopoly provider to which
the order relates is to -
(a) determine -
(i) the pricing policies to be
applicable to the monopoly
service during the period in
which the order is in force; and
(ii) the prices to be charged on the
day on which the order takes
effect and the period during
which those prices will apply;
and
(b) lodge with the Regulator an application
for the approval of those pricing policies
and prices, together with any supporting
information the Regulator may require.
(2) A monopoly provider is not to amend the pricing
policies or prices determined under
subsection (1) and approved under subsection (3)
unless it has the written approval of the
Regulator to do so.
(3) The Regulator -
(a) is to approve the determination or
amendment by a monopoly provider of
its pricing policies in respect of a
monopoly service or prices for a
monopoly service if it is satisfied that the
policies or prices as determined or
amended would be consistent with the
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s. 38 Part 3 - Monopoly Provider Investigations
pricing policy order made in respect of
the monopoly service; and
(b) is not to approve such a determination or
amendment unless it is so satisfied.
(4) The Regulator is to give notice of its approval, or
disapproval, of the determination or amendment
by a monopoly provider of its pricing policies or
prices under subsection (3) within 15 days after
it receives the application for approval.
38. Determination by Portfolio Minister where no
pricing policy order made
(1) Within 60 days after receiving a copy of a final
report in respect of a monopoly service supplied
by a monopoly provider that is not a prescribed
monopoly provider within the meaning of
section 36, the Portfolio Minister is to -
(a) provide a copy of the recommendations
contained in the final report to each
Minister of the Crown; and
(b) taking into consideration those
recommendations and any comments
received in relation to those
recommendations from any Minister of
the Crown, the monopoly provider and, if
the monopoly provider is a Local
Government Body, the Local
Government Association of Tasmania,
determine the maximum prices which
may be charged by the monopoly
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Act No. of
Part 3 - Monopoly Provider Investigations s. 38
provider in respect of that monopoly
service during the period -
(i) specified in the terms of reference
for the investigation under
section 25(f); and
(ii) commencing on the day the
determination takes effect; and
(c) give such directions and take such other
action as is necessary to ensure that the
monopoly provider acts in accordance
with that determination.
(2) For the avoidance of doubt, if the Portfolio
Minister is the Minister to whom the
administration of the Local Government Act
1993 is assigned and the monopoly provider is a
Local Government Body, that body is to comply
with a direction of that Minister given under
subsection (1)(c).
59
Economic Regulator Act 2009
Act No. of
s. 39 Part 4 - Prescribed Body Inquiries
PART 4 - PRESCRIBED BODY INQUIRIES
39. Direction to conduct prescribed body inquiry
(1) The Minister may direct the Regulator to inquire
into and report to him or her on a matter relating
to or affecting the pricing policies of a
prescribed body.
(2) The Minister may make a direction at his or her
own discretion or at the request of -
(a) the Regulator; or
(b) a Portfolio Minister; or
(c) a prescribed body.
(3) The Minister is not to give a direction -
(a) unless satisfied that undertaking the
proposed prescribed body inquiry would
not interfere with the ability of the
Regulator to exercise its other functions;
and
(b) unless he or she has first consulted with
the Portfolio Minister; and
(c) if the direction relates to one or more
Local Government Bodies, unless he or
she has first consulted with that body or
such of those bodies, or the Local
Government Association of Tasmania, as
the Minister considers appropriate.
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Act No. of
Part 4 - Prescribed Body Inquiries s. 39
(4) A direction -
(a) may be made in respect of one or more
prescribed bodies; and
(b) is to be in writing; and
(c) is to specify the scope of the prescribed
body inquiry; and
(d) may specify that the Regulator is not to
inquire into, or publish to any person, the
terms of a particular contract or a
contract of a class of contracts; and
(e) is to specify the day by which the
Regulator is to provide a report on the
prescribed body inquiry to the Minister;
and
(f) is to specify who is liable to pay the costs
of the prescribed body inquiry and what
proportion of those costs that person or
body is liable to pay.
(5) In determining the liability to pay the costs of a
prescribed body inquiry, the Minister and
Portfolio Minister, jointly, may determine that -
(a) the Regulator is to pay all or a proportion
of the costs of the prescribed body
inquiry; and
(b) a prescribed body which is the subject of
the prescribed body inquiry is to pay all
or a proportion of the costs of the
prescribed body inquiry; and
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Act No. of
s. 40 Part 4 - Prescribed Body Inquiries
(c) a prescribed body which is not the
subject of the prescribed body inquiry
but which has agreed or offered to pay an
amount towards the costs of the
prescribed body inquiry is to pay an
amount not exceeding the amount
specified in the agreement or offer.
(6) Before the Regulator provides the report on a
prescribed body inquiry to the Minister, the
Minister may amend or rescind the direction by
written notice provided to the Regulator and all
prescribed bodies to which the direction relates.
(7) The Regulator is to comply with a direction or
an amended direction.
40. Conduct of prescribed body inquiry
(1) Subject to this Act and the regulations, the
Regulator may conduct a prescribed body
inquiry in such manner as it considers
appropriate and, in particular, may at its
discretion -
(a) receive written and oral submissions; and
(b) consult with any person; and
(c) hold conferences and seminars; and
(d) determine whether any person wishing or
required to appear before the Regulator
may be represented by another person.
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Act No. of
Part 4 - Prescribed Body Inquiries s. 41
(2) In conducting a prescribed body inquiry, the
Regulator -
(a) is not bound by the rules of evidence but
may inform itself of any matter in any
manner it considers appropriate; and
(b) has the power to do all things it considers
necessary or convenient for the purposes
of the prescribed body inquiry.
41. Use of documents or other information
(1) The Regulator may give directions prohibiting or
restricting the publication of any answer,
document or other information provided to it for
the purposes of a prescribed body inquiry, a part
of any such answer, document or other
information or a copy of or extract from any
such answer, document, other information or
part.
(2) A person must not contravene a direction given
under subsection (1).
Penalty: Fine not exceeding 100 penalty units
or a term of imprisonment not
exceeding 6 months, or both.
42. Report on prescribed body inquiry
The Regulator is to provide, by the day specified
in the direction to conduct a prescribed body
inquiry -
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s. 43 Part 4 - Prescribed Body Inquiries
(a) a report of its findings in the prescribed
body inquiry to the Minister; and
(b) unless the direction to conduct the
prescribed body inquiry specifies
otherwise, a copy of that report to all
prescribed bodies to which the prescribed
body inquiry relates and their Portfolio
Ministers.
43. Offences
A person must not -
(a) provide, in relation to a prescribed body
inquiry, information that the person
knows or believes to be false or
misleading without informing the
Regulator of that knowledge or belief; or
(b) hinder, obstruct or interfere with the
Regulator or any other person in the
performance or exercise of its, his or her
functions or powers in respect of a
prescribed body inquiry; or
(c) take, or threaten to take, any action that
detrimentally affects the employment of
another person because that other person
has assisted, is assisting or intends to
assist the Regulator in a prescribed body
inquiry.
Penalty: Fine not exceeding 100 penalty units.
64
Economic Regulator Act 2009
Act No. of
Part 5 - Taxi Fare Methodology Inquiries s. 44
PART 5 - TAXI FARE METHODOLOGY INQUIRIES
44. Direction to conduct taxi fare methodology inquiry
(1) The Minister, on the request of the Transport
Commission, may direct the Regulator to inquire
into and report to the Transport Commission on
appropriate methodologies in respect of setting
taxi fares.
(2) The Minister is not to give a direction -
(a) unless satisfied that conducting the
proposed taxi fare methodology inquiry
would not interfere with the ability of the
Regulator to exercise its other functions;
and
(b) unless the Minister to whom the
administration of the Taxi and Luxury
Hire Car Industries Act 2008 is assigned
has approved the direction.
(3) A direction -
(a) is to be in writing; and
(b) is to specify the scope of the taxi fare
methodology inquiry.
(4) The Transport Commission is liable to pay the
costs of the taxi fare methodology inquiry.
(5) Before the Regulator provides the report on a
taxi fare methodology inquiry to the Transport
Commission, the Minister may amend or rescind
65
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Act No. of
s. 45 Part 5 - Taxi Fare Methodology Inquiries
the direction by written notice provided to the
Regulator and the Transport Commission if the
Minister to whom the administration of the Taxi
and Luxury Hire Car Industries Act 2008 is
assigned approves the amendment or rescission.
(6) The Regulator is to comply with a direction or
an amended direction.
45. Conduct of taxi fare methodology inquiry
(1) Subject to this Act, the Regulator may conduct a
taxi fare methodology inquiry in such manner as
it considers appropriate.
(2) In conducting a taxi fare methodology inquiry,
the Regulator -
(a) is not bound by the rules of evidence but
may inform itself of any matter in any
manner it considers appropriate; and
(b) has the power to do all things it considers
necessary or convenient for the purposes
of the taxi fare methodology inquiry.
46. Offences
A person must not -
(a) provide, in relation to a taxi fare
methodology inquiry, information that
the person knows or believes to be false
66
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Act No. of
Part 5 - Taxi Fare Methodology Inquiries s. 47
or misleading without informing the
Regulator of that knowledge or belief; or
(b) hinder, obstruct or interfere with the
Regulator or any other person in the
performance or exercise of its, his or her
functions or powers in respect of a taxi
fare methodology inquiry.
Penalty: Fine not exceeding 100 penalty units.
47. Report on taxi fare methodology inquiry
The Regulator is to provide, by the day specified
in the direction to conduct a taxi fare
methodology inquiry -
(a) a report of its findings in the taxi fare
methodology inquiry to the Transport
Commission; and
(b) a copy of that report to the Minister and
to the Minister to whom the
administration of the Transport Act 1981
is assigned.
67
Economic Regulator Act 2009
Act No. of
s. 48 Part 6 - Competitive Neutrality Complaints
PART 6 - COMPETITIVE NEUTRALITY
COMPLAINTS
48. Who may make a complaint
A person may make a complaint to the Regulator
if the person -
(a) believes that a prescribed body has
contravened any of the national
competition policy competitive neutrality
principles; and
(b) is adversely affected by that supposed
contravention; and
(c) has discussed that supposed
contravention with the prescribed body.
49. Making complaint
A complaint -
(a) is to be made to the Regulator in writing;
and
(b) is to include -
(i) the name of the prescribed body;
and
(ii) the service provided by the
prescribed body; and
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Act No. of
Part 6 - Competitive Neutrality Complaints s. 50
(iii) details of how the complainant
believes the national competition
policy competitive neutrality
principles have been contravened;
and
(iv) details of how the complainant
has been adversely affected by
that contravention; and
(v) such other details as the
complainant considers relevant;
and
(c) is to be accompanied by the prescribed
fee.
50. Preliminary assessment of complaint
(1) Within 30 days after receiving a complaint, the
Regulator is to determine whether or not an
investigation of the complaint is necessary or
appropriate.
(2) For the purpose of ascertaining whether a
complaint should be investigated, the Regulator
may -
(a) make any preliminary inquiries that the
Regulator considers necessary or
appropriate; and
(b) require the complainant or prescribed
body concerned, within the time
specified in the requirement or such
longer period as the Regulator allows -
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Act No. of
s. 50 Part 6 - Competitive Neutrality Complaints
(i) to provide information or
documents; and
(ii) to verify all or any part of the
complaint or other information or
document by statutory
declaration.
(3) A prescribed body must comply with a
requirement made under subsection (2)(b).
Penalty: Fine not exceeding 100 penalty units.
(4) After making preliminary inquiries under
subsection (1), the Regulator may -
(a) resolve the complaint under
subsection (5); or
(b) determine that the complaint is to be
investigated; or
(c) refuse to investigate the complaint under
section 51.
(5) After making preliminary inquiries under
subsection (1), the Regulator may resolve the
complaint without the complaint being
investigated if -
(a) having regard to the nature and
seriousness of the complaint, the
Regulator believes that the complaint
may be resolved expeditiously; and
(b) the parties to the complaint agree to that
resolution.
70
Economic Regulator Act 2009
Act No. of
Part 6 - Competitive Neutrality Complaints s. 51
(6) If the Regulator resolves a complaint under
subsection (5), the Regulator is to provide a copy
of the complaint and the resolution to the
prescribed body concerned, its Portfolio Minister
and the complainant.
51. Refusal to conduct complaint investigation
(1) The Regulator may refuse to commence a
complaint investigation or, having commenced a
complaint investigation, may refuse to continue
the complaint investigation or that part of a
complaint investigation relating to a matter
raised in a complaint if the Regulator is of the
opinion -
(a) that the complaint does not contain -
(i) an allegation that one or more of
the national competition policy
competitive neutrality principles
have been contravened; or
(ii) matter to support such an
allegation; or
(iii) matter showing how the
complainant has been adversely
affected by an act of the
prescribed body; or
(b) that the complaint, or the matter raised in
the complaint, is vexatious or frivolous
or not made in good faith; or
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Act No. of
s. 52 Part 6 - Competitive Neutrality Complaints
(c) that there is no evidence that the
complainant has been adversely affected
by an act of the prescribed body; or
(d) that, having regard to all the
circumstances of the case, the
investigation, the continuance of the
investigation or the continuance of the
investigation of the matter raised in the
complaint is unnecessary or unjustifiable.
(2) If the Regulator refuses to commence a
complaint investigation or, having commenced a
complaint investigation, refuses to continue the
complaint investigation or that part of a
complaint investigation relating to a matter
raised in a complaint, the Regulator is to provide
written notice of the refusal -
(a) to the complainant; and
(b) if the Regulator has sought information
from a prescribed body under section 50
but not commenced a complaint
investigation, to the prescribed body; and
(c) if a complaint investigation has been
commenced, to the prescribed body and
its Portfolio Minister.
52. Commencing investigation into complaint
If the Regulator determines under
section 50(4)(b) that a complaint should be
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Act No. of
Part 6 - Competitive Neutrality Complaints s. 53
investigated, the Regulator is to commence an
investigation of the complaint by -
(a) providing written notice of the intention
to investigate to the complainant, the
prescribed body concerned and its
Portfolio Minister; and
(b) providing a copy of the complaint to the
prescribed body concerned and its
Portfolio Minister.
53. Reply to complaint
(1) Within 30 days after receiving a copy of a
complaint and notice of the Regulator's intention
to investigate it provided under section 52, the
prescribed body must provide the Regulator with
a written reply to the complaint that -
(a) specifies the belief of the prescribed
body as to whether the complaint is
justified, partly justified or not justified;
and
(b) in the case of a belief that the complaint
is justified or partly justified, specifies
whether the prescribed body proposes to
take any action to stop any ongoing
contravention of the national competition
policy competitive neutrality principles
which was the subject of the complaint
or to ensure that such a contravention
does not occur again; and
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Act No. of
s. 54 Part 6 - Competitive Neutrality Complaints
(c) in the case of a belief that the complaint
or part of the complaint is not justified,
sets out the grounds on which that belief
is based.
Penalty: Fine not exceeding 100 penalty units.
(2) A reply that specifies that a complaint is justified
or partly justified may include recommendations
for the alteration of the application of the
national competition policy competitive
neutrality principles and other recommendations
that the prescribed body considers appropriate.
54. Conduct of complaint investigation
(1) Subject to this Act and the regulations, the
Regulator may conduct a complaint investigation
in such manner as it considers appropriate and,
in particular, may -
(a) receive written and oral submissions; and
(b) consult with any person; and
(c) hold conferences and seminars; and
(d) determine whether or not any person
wishing or required to appear before the
Regulator may be represented by another
person.
(2) In conducting a complaint investigation, the
Regulator -
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Act No. of
Part 6 - Competitive Neutrality Complaints s. 55
(a) is not bound by the rules of evidence but
may inform itself of any matter in any
manner it considers appropriate; and
(b) has the power to do all things it considers
necessary or convenient for the purposes
of the complaint investigation.
55. Requiring person to give evidence or provide
document
(1) In a complaint investigation, the Regulator may
require a person, by written notice provided to
the person, to do any one or more of the
following:
(a) attend before the Regulator and answer
questions which, in the opinion of the
Regulator, are relevant to the
investigation;
(b) provide to the Regulator, in the manner
specified in the notice, any document
specified in the notice which is in the
person's possession or control and
which, in the opinion of the Regulator, is
relevant to the investigation;
(c) provide to the Regulator, in the manner
specified in the notice, any other
information specified in the notice
which, in the opinion of the Regulator, is
relevant to the investigation.
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Act No. of
s. 56 Part 6 - Competitive Neutrality Complaints
(2) A person who attends before the Regulator under
a requirement referred to in subsection (1)(a)
may, at the Regulator's discretion, be paid by the
Regulator reasonable allowances and expenses.
(3) Despite subsection (1), the Regulator may not
require a person -
(a) to answer a question, or provide
information, if to do so would require the
person to divulge information contained
in or relating to a Cabinet record; or
(b) to provide to the Regulator a Cabinet
record.
56. Use of documents or other information
(1) The Regulator -
(a) may examine, take possession of, make
copies of and take extracts from any
document provided under a requirement
referred to in section 55(1)(b) or (c); and
(b) may retain that document for so long as
is necessary for the purposes of the
investigation; and
(c) is to allow a person who would be
entitled to inspect the document if it were
not in the possession of the Regulator to
inspect it, make a copy of it or take an
extract from it at any reasonable time.
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Act No. of
Part 6 - Competitive Neutrality Complaints s. 56
(2) The Regulator may give directions prohibiting or
restricting the publication of any answer,
document or other information provided to it
under a requirement referred to in section 55(1),
a part of any such answer, document or other
information or a copy of or extract from any
such answer, document, other information or
part.
(3) A person must not contravene a direction given
under subsection (2).
Penalty: Fine not exceeding 100 penalty units
or a term of imprisonment not
exceeding 6 months, or both.
(4) The Regulator may make any answer, document
or other information provided to it under a
requirement referred to in section 55(1) or part
of any such answer, document or other
information available to any person as the
Regulator considers appropriate except where -
(a) to do so would contravene a direction; or
(b) the answer, document, other information
or part contains information which is
exempt information under the Freedom
of Information Act 1991 or the Right to
Information Act 2009.
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Act No. of
s. 57 Part 6 - Competitive Neutrality Complaints
57. Decision of Regulator
(1) After conducting a complaint investigation, the
Regulator is to determine whether or not the
complaint is justified.
(2) If the Regulator determines that the complaint is
justified, the Regulator is to provide to the
Minister, the Portfolio Minister, the prescribed
body and the complainant a written report of that
determination containing one or more of the
following recommendations:
(a) that the application of the national
competition policy competitive neutrality
principles be changed;
(b) that the prescribed body be directed to
change the manner in which it applies the
national competition policy competitive
neutrality principles to the service which
is the subject of the complaint.
(3) The determination of the Regulator is final.
(4) The complainant is not entitled to compensation
for the adverse effects suffered.
58. Time by which complaint investigation to be
completed
(1) A complaint investigation, including the
provision of the report under section 57(2), is to
be completed within 45 days after the Regulator
receives under section 53 the written reply of the
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Act No. of
Part 6 - Competitive Neutrality Complaints s. 59
prescribed body or such longer period as the
Minister may allow under this section.
(2) The Minister may extend the period within
which the complaint investigation is to be
completed for a period not exceeding 30 days.
(3) The Minister may grant an extension under
subsection (2) more than once.
(4) On granting an extension, the Minister is to
notify the Regulator in writing of -
(a) that extension; and
(b) the day by which the complaint
investigation is to be completed; and
(c) the day by which the report under
section 57(2) is to be provided.
59. Action by Minister on determination
Within 30 days after receiving a report on a
complaint investigation under section 57(2) that
contains a recommendation of a kind referred to
in section 57(2)(a) or (b), the Portfolio Minister
is to provide the Regulator and the complainant
with written notice of any action he or she has
taken or intends to take as a result of receiving
that report.
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Act No. of
s. 60 Part 6 - Competitive Neutrality Complaints
60. Action by prescribed body on determination
(1) Within 30 days after receiving a report on a
complaint investigation under section 57(2) that
contains a recommendation of a kind referred to
in section 57(2)(b), the prescribed body must
provide the Regulator with written notice of any
action it has taken or intends to take as a result
of receiving that report.
Penalty: Fine not exceeding 100 penalty units.
(2) At any time after the end of the period referred
to in subsection (1), the Regulator may require
the prescribed body, within the period specified
in the requirement, to provide the Regulator with
information in respect of any action the
prescribed body has taken or is still to take as a
result of receiving the complaint investigation
report under section 57(2).
(3) A prescribed body must not contravene a
requirement made under subsection (2).
Penalty: Fine not exceeding 100 penalty units.
61. Refund of fee accompanying complaint
If the Regulator determines that a complaint is
justified, the Regulator is to refund to the
complainant any prescribed fee paid under
section 49(c).
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Act No. of
Part 6 - Competitive Neutrality Complaints s. 62
62. Offences
(1) A person must not -
(a) fail to comply with a requirement made
under section 55(1); or
(b) provide to the Regulator in relation to a
complaint investigation information that
the person knows or believes to be false
or misleading without informing the
Regulator of that knowledge or belief; or
(c) hinder, obstruct or interfere with the
Regulator or any other person in the
performance or exercise of its, his or her
functions or powers in respect of the
conduct of a complaint investigation; or
(d) take, or threaten to take, any action that
detrimentally affects the employment of
another person because that other person
has assisted, is assisting or intends to
assist the Regulator in the conduct of a
complaint investigation.
Penalty: Fine not exceeding 100 penalty units.
(2) Despite subsection (1)(a), a person is not
required to comply with a requirement made
under section 55(1) if to do so would tend to
incriminate that person.
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Act No. of
s. 63 Part 7 - Miscellaneous
PART 7 - MISCELLANEOUS
63. Non-application of certain Acts to certain
information
The Freedom of Information Act 1991 and the
Right to Information Act 2009 do not apply in
respect of -
(a) any answer, document, other information
or part of any answer, document or other
information in respect of which a
direction has been given under
section 30(2), 41(1) or 56(2); and
(b) records relating to the production of any
such answer, document, other
information or part.
64. Service of documents
(1) A document is effectively provided, served or
given to the Regulator if it is -
(a) left at, or sent by post to, the Department
or the office or address of the Regulator;
or
(b) faxed to the fax number of the
Department or the Regulator; or
(c) emailed to the email address of the
Department or the Regulator.
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Act No. of
Part 7 - Miscellaneous s. 64
(2) A document is effectively provided, served or
given by the Regulator to a person or Agency if
it is -
(a) in the case of a natural person -
(i) given to the person; or
(ii) left at or sent by post to the
person's postal or residential
address or address of business or
employment last known to the
Regulator; or
(iii) faxed to the person's fax number;
or
(iv) emailed to the person's email
address; and
(b) in the case of any other person or an
Agency -
(i) left at or sent by post to the
person or Agency's principal or
registered office or principal
place of business; or
(ii) faxed to the person or Agency's
fax number; or
(iii) emailed to the person or
Agency's email address.
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Act No. of
s. 65 Part 7 - Miscellaneous
65. Amendment of Schedule 1
(1) The Governor, by order, may -
(a) repeal Schedule 1; or
(b) repeal Schedule 1 and substitute another
Schedule for it; or
(c) amend Schedule 1.
(2) An order under this section may not -
(a) amend Schedule 1 so as to specify in that
Schedule for the purposes of
section 25(f)(i) a period of more than 5
years; or
(b) substitute for Schedule 1 another
Schedule which specifies for the
purposes of section 25(f)(i) a period of
more than 5 years.
(3) Section 47(3), (3A), (4), (5), (6) and (7) of the
Acts Interpretation Act 1931 applies to an order
under this section as if the order were regulations
within the meaning of that Act.
(4) The Treasurer may not, under section 3(2) of the
Subordinate Legislation Act 1992, declare an
order under this section to be subordinate
legislation for the purposes of that Act.
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Part 7 - Miscellaneous s. 66
66. Regulations
(1) The Governor may make regulations for the
purposes of this Act.
(2) Without limiting the generality of subsection (1),
regulations may be made -
(a) for and in relation to the conduct by the
Regulator of monopoly provider
investigations, prescribed body inquiries,
taxi fare methodology inquiries and
complaint investigations; and
(b) providing for the fees payable under this
Act.
(3) The regulations may be made so as to apply
differently according to matters, limitations or
restrictions, whether as to time, circumstance or
otherwise, specified in the regulations.
(4) The regulations may -
(a) provide that a contravention of any of the
regulations is an offence; and
(b) in respect of such an offence, provide for
the imposition of a fine not exceeding
100 penalty units and, in the case of a
continuing offence, a further fine not
exceeding 10 penalty units for each day
during which the offence continues.
(5) The regulations may authorise any matter to be
from time to time determined, applied, approved
or regulated by the Minister.
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Act No. of
s. 67 Part 7 - Miscellaneous
(6) The regulations may -
(a) provide for savings and transitional
matters necessary or expedient for
bringing this Act into operation; and
(b) provide for any of those savings or
transitional matters to take effect when
this Act commences or on a later day as
specified in the regulations, whether the
day so specified is before, on or after the
day on which the regulations are made.
67. Administration of Act
Until provision is made in relation to this Act by
order under section 4 of the Administrative
Arrangements Act 1990 -
(a) the administration of this Act is assigned
to the Treasurer; and
(b) the department responsible to that
Minister in relation to the administration
of this Act is the Department of Treasury
and Finance.
68. Savings and transitional provisions
(1) In this section -
"commencement day" means the day on
which this Act commences.
(2) On and after the commencement day -
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(a) a declaration may not be made under
section 5 or 6 of the Government Prices
Oversight Act 1995; and
(b) a requirement to conduct an investigation
into, and report on, the pricing policies of
a monopoly provider, within the meaning
of the Government Prices Oversight Act
1995, may not be made under section 24
of that Act; and
(c) a direction to inquire into and report on a
matter relating to or affecting the pricing
policies of a prescribed body, within the
meaning of the Government Prices
Oversight Act 1995, may not be given
under section 39A of that Act; and
(d) a complaint may not be made under
section 39G of the Government Prices
Oversight Act 1995.
(3) The savings and transitional provisions set out in
Schedule 4 have effect.
69. Repeals and rescissions
(1) The following Acts are repealed on a day to be
proclaimed:
(a) Government Prices Oversight Act 1995;
(b) Government Prices Oversight
Amendment Act 2007.
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(2) The Government Prices Oversight Regulations
2008 are rescinded on the day proclaimed under
subsection (1).
(3) The Proclamation under the Government Prices
Oversight Amendment Act 2007 is revoked on
the day proclaimed under subsection (1).
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SCHEDULE 1 - CERTAIN MONOPOLY PROVIDERS
Sections 3, 6, 24, 25 and 65
Column Column 2 Column 3
1
MONOPOLY PROVIDER PERIOD OF
ORDER OR
DETERMINATION
1. Metro Tasmania Pty. Ltd 5 years
2. Motor Accidents Insurance Board 4 years
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SCHEDULE 2 - MEMBERSHIP OF REGULATOR
Section 15(4)
1. Term of office
A member of the Regulator is appointed for such
period, not exceeding 3 years, as is specified in
the member's instrument of appointment and
may be reappointed.
2. Holding other office
The holder of an office who is required by the
terms of his or her employment to devote the
whole of his or her time to the duties of that
office is not disqualified from -
(a) holding that office in conjunction with
the office of a member of the Regulator;
or
(b) accepting any remuneration payable to a
member of the Regulator.
3. State Service Act 2000
(1) The State Service Act 2000 does not apply in
relation to a member of the Regulator in his or
her capacity as such a member.
(2) A person may hold the office of member of the
Regulator in conjunction with State Service
employment.
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4. Remuneration and conditions of appointment
(1) A member of the Regulator is entitled to be paid
such remuneration and allowances as the
Minister determines.
(2) A member of the Regulator who is a State
Service employee or State Service officer is not
entitled to remuneration or allowances under this
clause except with the approval of the Minister
administering the State Service Act 2000.
(3) A member of the Regulator holds office on such
conditions in relation to matters not provided for
by this Act as are specified in the member's
instrument of appointment.
5. Vacation of office
(1) A member of the Regulator vacates office if he
or she -
(a) dies; or
(b) resigns by written notice provided to the
Minister; or
(c) is removed from office under this clause.
(2) The Minister may remove a member of the
Regulator from office if the member -
(a) is absent from 3 consecutive meetings of
the Regulator -
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(i) otherwise than in accordance
with the member's instrument of
appointment; or
(ii) without the permission of the
other members of the Regulator;
or
(b) becomes bankrupt, applies to take the
benefit of any law for the relief of
bankrupt or insolvent debtors,
compounds with creditors or makes an
assignment of remuneration or estate for
the benefit of creditors; or
(c) is convicted, in Tasmania or elsewhere,
of a crime or an offence punishable by
imprisonment of 12 months or longer; or
(d) is convicted of an offence under this Act.
(3) The Minister may remove a member of the
Regulator from office if satisfied that -
(a) the member is unable to perform
adequately or competently the duties of
office; or
(b) the member has contravened clause 6 of
Schedule 3.
6. Filling of vacancies
If the office of a member of the Regulator
becomes vacant, the Minister may appoint a
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person to the vacant office for the remainder of
that member's term of office.
7. Validation of proceedings, &c.
(1) An act or proceeding of the Regulator or of a
person acting under any direction of the
Regulator is not invalidated by reason only that
at the time when the act or proceeding was done,
taken or commenced there was a vacancy in the
office of a member of the Regulator.
(2) All acts and proceedings of the Regulator or of a
person acting under a direction of the Regulator
are, despite the subsequent discovery of a defect
in the appointment of a member of the Regulator
or that any other person was disqualified from
acting as, or incapable of being, a member of the
Regulator, as valid as if the member of the
Regulator had been duly appointed and was
qualified to act as, or capable of being, a
member of the Regulator, and as if the Regulator
had been fully constituted.
8. Presumptions
In any proceedings by or against the Regulator,
unless evidence is given to the contrary, proof is
not required of -
(a) the constitution of the Regulator; or
(b) the appointment of any member of the
Regulator.
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SCHEDULE 3 - MEETINGS OF REGULATOR
Section 15(5)
1. Convening of meetings
(1) Subject to subclause (2), meetings of the
Regulator are to be held at the times and places
determined by the Regulator.
(2) The chairperson of the Regulator -
(a) is to convene a meeting within 30 days
after receiving a requirement to conduct
a monopoly provider investigation; and
(b) may convene a meeting at any time.
(3) If the chairperson of the Regulator is absent or
otherwise unable to perform the duties of the
office -
(a) the person acting in the office of
chairperson of the Regulator, or a person
authorised by the Regulator to do so, is
to convene a meeting in accordance with
subclause (2)(a) as if he or she were the
chairperson of the Regulator; or
(b) any other meeting may be convened by -
(i) two members of the Regulator; or
(ii) a person authorised by the
Regulator to do so.
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2. Presiding at meetings
(1) The chairperson of the Regulator is to preside at
all meetings of the Regulator at which he or she
is present.
(2) If the chairperson is not present at a meeting of
the Regulator, the member of the Regulator
elected by the members of the Regulator present
is to preside.
3. Quorum and voting at meetings
(1) At a meeting of the Regulator, 2 members of the
Regulator constitute a quorum.
(2) A meeting of the Regulator at which a quorum is
present is competent to transact any business of
the Regulator.
(3) At a meeting of the Regulator -
(a) a question is decided by a majority of
votes of the members of the Regulator
present and voting; and
(b) the person presiding has a casting vote if
there is an equality of votes.
4. Conduct of meetings
(1) Subject to this Act, the Regulator may regulate
the calling of, and the conduct of business at, its
meetings as it considers appropriate.
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(2) The Regulator may permit members of the
Regulator to participate in a particular meeting
or all meetings by -
(a) telephone; or
(b) video conference; or
(c) any other means of communication
approved by the Regulator.
(3) A member who participates in a meeting under a
permission granted under subclause (2) is
present at the meeting.
(4) The Regulator may allow a person to attend a
meeting for the purpose of advising or informing
it on any matter or for any other reason the
Regulator considers appropriate.
5. Resolutions without meetings
(1) If at least 2 members of the Regulator sign a
document containing a statement that they are in
favour of a resolution in the terms set out in the
document, a resolution in those terms is taken to
have been passed at a meeting of the Regulator
held on the day on which the document is signed
or, if the members do not sign it on the same
day, on the day on which the last of the members
signs the document.
(2) If a resolution is taken to have been passed under
subclause (1), each member of the Regulator is
to be -
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(a) advised immediately of the matter; and
(b) given a copy of the terms of the
resolution.
(3) For the purposes of subclause (1), 2 or more
separate documents containing a statement in
identical terms, each of which is signed by one
or more members of the Regulator, are taken to
constitute one document.
6. Disclosure of interests
(1) If a member of the Regulator has a direct or
indirect interest (pecuniary or otherwise) in a
matter being or about to be considered by the
Regulator, that member must disclose the nature
of the interest to the Regulator as soon as
practicable after the relevant facts come to that
member's knowledge.
Penalty: Fine not exceeding 50 penalty units.
(2) Unless the Regulator otherwise determines, a
member of the Regulator who has made a
disclosure under subclause (1) in relation to a
matter must not -
(a) be present during any consideration of,
or the making of a decision in relation to,
the matter by the Regulator or during any
other proceeding of the Regulator in
relation to the matter; or
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(b) take part in any consideration of, or the
making of a decision in relation to, the
matter.
(3) For the purpose of making a decision under
subclause (2), the member of the Regulator to
whom the decision relates must not -
(a) be present during any deliberation of the
Regulator for the purpose of making the
decision; or
(b) take part in making the decision.
(4) Subclause (1) does not apply in respect of an
interest that consists only of the receipt of a
service that -
(a) is also available to members of the
public; and
(b) is made available on the same terms as
apply to members of the public.
(5) A contravention of subclause (1) does not
invalidate any act, proceeding or decision of the
Regulator.
7. Minutes
The Regulator is to keep minutes of its
proceedings.
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8. General procedure
Subject to this Act, the Regulator may regulate
its own proceedings.
9. Presumptions
In any proceedings by or against the Regulator,
unless evidence is given to the contrary, proof is
not required of -
(a) any resolution of the Regulator; and
(b) the presence of a quorum at any meeting
of the Regulator.
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SCHEDULE 4 - SAVINGS AND TRANSITIONAL
PROVISIONS
Section 68(3)
1. Interpretation
In this Schedule -
"commencement day" means the day on
which this Act commences;
"Commissioner" has the same meaning as in
the GPO Act;
"GPO Act" means the Government Prices
Oversight Act 1995;
"repeal day" means the day, fixed by
proclamation under section 69(1), on
which the GPO Act is repealed.
2. Commissioner to be chairperson of Regulator
The Commissioner is taken to have been
appointed under section 15 on the
commencement day as a member of the
Regulator, and as its chairperson, for the
remainder of the term specified in his or her
instrument of appointment as Commissioner and
on the same conditions.
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3. Abolition of Government Prices Oversight
Commission, &c.
(1) On the repeal day -
(a) the Government Prices Oversight
Commission established by section 9 of
the GPO Act is abolished; and
(b) the appointment of the Commissioner
under section 15(1)(a) of the GPO Act is
terminated; and
(c) if a person has an appointment under
section 17 of the GPO Act as Acting
Commissioner, that appointment is
terminated.
(2) The Commissioner and an Acting Commissioner
referred to in subclause (1)(c) are not entitled to
receive any benefit in respect of the termination
of their appointments under this clause.
4. Declarations under GPO Act
(1) On and after the commencement day, a
declaration of a service made under section 5 of
the GPO Act that has effect immediately before
that day is taken, for the purposes of this Act, to
be a declaration of a service made under
section 5 of this Act.
(2) On and after the commencement day, a
declaration of a monopoly service made under
section 6 of the GPO Act that has effect
immediately before that day is taken, for the
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purposes of this Act, to be a declaration of a
monopoly service made under section 6 of this
Act.
5. Guidelines under GPO Act
If guidelines published under section 12 of the
GPO Act are in effect immediately before the
commencement day, those guidelines -
(a) continue in effect for the purposes of the
GPO Act until the repeal day; and
(b) also are taken for the purposes of this Act
to have been published under section 12
of this Act.
6. Requirement under section 24 of GPO Act
If under section 24 of the GPO Act a
requirement to conduct an investigation has been
made but no notice of the investigation has been
given under section 26 of that Act before the
commencement day -
(a) that requirement is taken to have been
made, and provided to the Regulator,
under section 24 of this Act; and
(b) no action is to be taken under the GPO
Act in respect of that requirement.
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7. Order under section 36 of GPO Act
On and after the commencement day, an order
made under section 36 of the GPO Act that has
effect immediately before that day is taken, for
the purposes of this Act, to be an order made
under section 36 of this Act.
8. Determination under section 38 of GPO Act
On and after the commencement day, a
determination made under section 38 of the GPO
Act that has effect immediately before that day is
taken, for the purposes of this Act, to be a
determination made under section 38 of this Act.
9. Complaint
(1) On or after the commencement day, the
Commission may refer to the Regulator a
complaint made to it under section 39G of the
GPO Act before that day if -
(a) the Commission has not commenced a
preliminary assessment of the complaint
under section 39H; or
(b) the Commission has determined,
following such a preliminary assessment,
that an investigation of the complaint is
necessary or appropriate but has not
commenced that investigation under
section 39J of the GPO Act.
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(2) If a complaint is referred to the Regulator under
subclause (1)(b), the determination and
preliminary assessment referred to in that
subclause are taken to have been made and
undertaken by the Regulator under section 50 of
this Act.
(3) If the Regulator finds a complaint referred to it
under this clause justified, the Regulator is to
refund to the complainant any prescribed fee
paid to the Commission under section 39G of the
GPO Act as if the fee had been paid to the
Regulator.
10. Funds and liabilities
(1) On the repeal day any funds standing to the
credit of the Commission, whether or not in an
authorised deposit-taking institution account,
become the funds of the Regulator.
(2) On and after the repeal day, an authorised
deposit-taking institution account that,
immediately before that day, was in the name of
the Commission is taken to be in the name of the
Regulator and may be operated by the Regulator
as determined at a meeting of the Regulator.
(3) As soon as practicable after the repeal day, the
Regulator is to pay into its account in the Special
Deposits and Trust Fund any funds transferred to
it by the operation of subclause (1).
(4) On the repeal day, all liabilities and financial
obligations belonging to the Commission
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become the liabilities and financial obligations
of the Regulator.
11. Annual report
(1) In this clause -
"complaint" means a complaint made to the
Commission under section 39G of the
GPO Act;
"complaint investigation" has the same
meaning as in the GPO Act;
"inquiry" has the same meaning as in the
GPO Act;
"prescribed body" has the same meaning as
in the GPO Act;
"pricing policy investigation" has the same
meaning as in the GPO Act;
"relevant financial year" means a financial
year in respect of which the Regulator is
to make an annual report.
(2) If during a relevant financial year the
Commission has performed and exercised any
functions and powers, the annual report of the
Regulator in respect of that year is to include -
(a) a report on the performance and exercise
of the Commission's functions and
powers; and
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(b) the particulars of any contravention of
the national competition policy
competitive neutrality principles -
(i) that a prescribed body admits to
having committed in response to
a complaint; or
(ii) that the Commission, during a
complaint investigation, an
inquiry or a pricing policy
investigation, determines has
been committed by a prescribed
body; and
(c) whether any action was taken by a
prescribed body referred to in
paragraph (b) in relation to its
contravention of the national competition
policy competitive neutrality principles
and, if so, what that action was.
(3) For the purposes of an annual report in respect of
a relevant financial year, the financial statements
of the Commission are to be combined with the
financial statements of the Regulator.
12. Records and information
(1) On the repeal day, any records held by the
Commission become the records of the
Regulator.
(2) If immediately before the repeal day a direction
of the Commission given under section 30(2),
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39C(1) or 39N(2) of the GPO Act that prohibits
or restricts publication of any answer, document
or other information provided to it, or part of any
such answer, document or other information, has
effect, on and after the repeal day -
(a) that direction continues to apply; and
(b) for that purpose is taken to have been
made by the Regulator under
section 30(2), section 41(1) or
section 56(2) of this Act, as appropriate.
(3) If immediately before the repeal day the
Freedom of Information Act 1991 or the Right to
Information Act 2009 did not apply to -
(a) any answer, document, other information
or part of any answer, document or other
information provided to the Commission;
or
(b) any record held by the Commission -
neither of those Acts apply to that answer,
document, part, other information or record on
and after the repeal day.
Government Printer, Tasmania 107