Response to issues paper exempt selling regime madeleine kingston
affect or limit a civil right or remedy
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- OTHER CASE STUDIES APPENDICES Tenants Issues
- Bulk hot water charges”;
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- EXTRACTS PERTINENT PROVISIONS
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affect or limit a civil right or remedy apart from such an Act, whether at common law or otherwise’ exonerate from liability including under the common law such recourses, including through, compliance with any given legislative Act or ancillary provision including, Code or Guideline or reference thereto within statutory provisions; generic, state or territory; industry-specific or otherwise; and irrespective of discrepancies; misinterpretations (for example deemed sale and supply of gas or electricity as commodities attractive the full suite of protections under multiple provisions) or any other energy form; or any other commodity or service to a customer (incorporated or otherwise) hamper, restrict or remove civil or other rights or obligations under other statutory other provisions, notwithstanding any misguided transparent or hidden warranties or guarantees (for example any warranties or guarantees entered into during the disaggregation of infrastructure or other assets) over-ride recourse to seeking justice under enshrined rights within the written or unwritten laws, including under the common law imply or create limitations as to culpability and/or liability by the mere existence of perceived exoneration under one enactment or ancillary provision (or for that matter terms of any commercial agreement, whether or hot between government authorities); including but not limited to for example to commercial agreements formed between government organizations during the disaggregation and sale of infrastructure assets;420 specific legal provisions under state, local government or federal laws; or generic laws; in any way limit a court’s powers under the Penalties and Sentences Act (2)without limiting subsection (1), compliance with this Act does not necessarily show that a civil obligation that exists apart from this Act has been satisfied or has not been breached. I invite further direct enquiry and can be reached by email or telephone. At any rate despite lateness I respectfully request that this documentation be placed on the AER website as additional material that may also be useful as accessible data for future deliberations in policy and regulatory matters. 
Madeleine Kingston Private Stakeholder LIST OF APPENDICES Separate .pdf documents
1 Intended also for Australian Consumer and Competition Commission (ACCC), ASIC (in view of possible gaps in corporations law and illustration of continuing alleged market distortion); Australian Energy Market Commission [AEMC]; AEMO; National Measurement Institute; NSW Fair Trading; NSW Department of Industry and Investment; Consumer Affairs Victoria [CAV]; all other State Fair Trading Offices; jurisdictional Tenancy Unions including Tenants Union Victoria; State Parliamentary Offices; Department of Energy and Resources South Australia; Department of Energy Queensland; others including the Senate Select Fuel and Energy Committee 2 May I say upfront and transparently, if you are relying for guidance and support from the Victorian ESC, and/or policy maker Department of Primary Industries Victoria , as national if not world-class models, please think again. That is, please 3 A good indication of the rationale for caution re the policy positions of the Department of Primary Industries Victoria [DPI] and companion economic regulator Essential Services Commission Victoria [ESC] may be the findings of the former Victorian Auditor-General Des Pearson regarding the misguided and premature decision by the DPI regarding the ‘smart-meter’ roll-out’ http://www.audit.vic.gov.au/reports__publications/reports_by_year/2009-10/20091111_amid.aspx last viewed 21 January 2012
4 9 See for example the CRA commissioned Report to the AEMC’s Review of the effectiveness of competition in the gas and electricity retail markets in Victoria 2008. This report was analyzed in my 2007 2-part submission to the AEMCs Victorian review of retail energy competition 5 Please also refer to submissions to AEMC ERC0092 Draft Decision Metering Data Service Provision and Clarification of Metrology Procedures dated 1 and 3 July, and previous correspondence 16 and 27 April 2010 respectively in the same matter all published on the AEMC website – direct links footnote refers Please also refer to submissions to AEMC ERC0092 Draft Decision Metering Data Service Provision and Clarification of Metrology Procedures dated 1 and 3 July, and previous correspondence 16 and 27 April 2010 respectively in the same matter all published on the AEMC website – direct links footnote refers 6 Madeleine Kingston Main submission 1st July AEMC rule change ERC0092 Madeleine Kingston appendices 1-15 July AEMC - ERC0092 Madeleine Kingston addendum submission 3rd July AEMC-0092 7 See emailed communications from AEMC dated 23 April and 5 May 2010 respectively, the first advising that the AEMC wished to regard correspondence of 16 April as belated response to initial consultation phase; the second advising that the AEMC would regard the correspondence of both 16 and 27 April along with responses to Draft Report 8 Refer to detailed discussion in Appendices previously provided to Exempt Selling Regime Issues Paper on 2 August 2010 and many other arenas, including case studies 9 I note the scope to provide individual exemptions at the discretion of the AEMC and/or dictates by the policy-maker AEMC who takes the tab for any and all expenses incurred by the AER, despite at least on paper being an integral part of the ACCC. 10 It would seem that many are profiting and some wish to be exempt because [paraphrased] “our clients the big boys can look after themselves and we wish to be free to negotiate long-range contracts without bothering about licencing. Anyway the range of services we offer goes beyond energy provision” 11 How will the AER determine that significant and monitor this. Why should continuing carve-outs of protections become the norm? 12 Redress under other laws is obtained at high expense and often regulators simply don’t act to uphold the laws under their jurisdictions. Passing the back to other jurisdictions is not the answer as a justification for perpetuating an exempt selling regime except in rare circumstances 13 I strongly caution against presumptions about alleged benefits to exempt selling customers. Many as illustrated in the Major Case Study that I proffer (Legal Dispute between a Body Corporate entity and a Service Provider based on inappropriately imposed contractual obligations to owners and successive owners or occupiers. Similar to the Arrow Asset Management case. Many Owners’ Corporations do not see the benefits of such long-range contracts that appear to reflect cartel conduct including third-party line forcing. As to the benefits to many others caught in embedded or embedded-type situations (such as Bulk Hot Water); or long-term recipients of bundled products without informed consent will remain unhappy, inadequately catered for with limited and inadequate complaint and redress options. VCAT for example is expensive, intimidating for many and protracted. It can only deal with direct simple disputes between landlords and tenants, not where third party contractual disputes arise. In Victoria the Office of Fair Trading has refused to take seriously the third party embedded situation 14 I further discuss the lack of effective complaints redress in a new section not included in my submission to the Issues Paper on 2 August 2010 15 Refer to footnotes under this section referring to the views of Gavin Dufty Social Scientist of Policy and Research Unit, St Vincent de Paul in his VCOSS Congress Paper “The rising influence of economic regulators and the decline of elected governments” http://search.informit.com.au/documentSummary;dn=184354024841796;res=IELHSS The paper primarily addresses flaws in Victorian regulatory policy and represents rebuttal of the views of John Tamblyn expressed at the World Forum on Energy Regulation, Rome in September 2003 entitled “Are Universal Service Obligations Compatible with Effective Energy Retail Market Competition?” John Tamblyn left the ESC to become Chairperson of AEMC’s Review into Retail Competition Policy, and now provides Expert Opinion on a variety on industry-related policy matters. 16 I have discussed this further in a new chapter on pages XX Redress options are scant. I have extensively discussed the inadequacy of existing industry-run Ombudsman Schemes with a particular focus on the one that I have had direct experience of, EWOV, on a tight leash through the restrictions imposed by policy maker Department of Primary Industries (DPI) and the associated economic regulator Essential Services Commission [ESC] believing itself unaccountable merely on the basis of its separate legal identity. Peter Mair has commented in submissions to the Productivity Commission on gaps in administrative law when it comes to dealing with incorporated bodies such as the ESC, despite such bodies being set up under statutory enactments. I vigorously disagree that EWOV can possibly deliver proper protections within an Exempt Selling Framework. In their 2006 and 2007 responses to the DPI-ESC Small Scale Licencing Framework this complaints scheme implied conflicts of interest and divided loyalties in relation to its paying members. In the case example included as Appendix 1 (Body Corporate Entity) EWOV only revealed who the host retailer was after considerable pressure. EWOV refused to transparently publish the outcomes of a feasibility study taken of the small scale licencing market. This hardly shows an objective and cooperative stance given the expense involved in such an undertaking EWOV Further Comments Small Scale Licencing Framework 2006
17 “Additional services” “ancillary services”; “bulk hot water policy arrangements” “serviced hot water” – as provided by energy providers licensed to distribute, transmit or retail energy not water products 18 As instigated by the AEMO 19 Updated from version submitted to Senate Economics Committee’s Consumer Enquiry (TPA-ACL-Bill 2) (2010). Report completed. Bill passed. Trade Practices Act 1974 to be renamed Competition and Consumer Law; and earlier version submitted to the NECF2 Package and published on the MCE website 20 I confirm my serious and ongoing concerns regarding the Essential Services Commission’s perceptions and/or policy maker Department of Primary Industries regarding reliance on and interpretation of the Gas Industries Act 2001, in conjunction with the Gas 21 Please also refer to my multi-component submission to the Productivity Commission’s review of Australia’s Consumer Policy Framework www.pc.gov.au/data/assets/consumer/subdr242; http://www.pc.gov.au/__data/assets/pdf_file/0006/89196/subdr242part4.pdf 22 This instrument was intended as for short term transitory provision of electricity only embedded situations where actual flow of energy was effected to the party deemed to be receiving it, but where network ownership and/or operation changed hands and distribution was not effected by the original distributor. This raises liability issues and reinterpretation of the tripartite governance model. The AER will make piecemeal exemptions as requested. See Letter dated 21 March 2006 from the Victorian Energy Minister Theo Theophanous to ESC Small Scale Licencing Review 2006, no longer accessible o ESC site, so I cannot provide a direct online link However I did save the document as a .pdf and sent it by email on 23 April 2010 to the Senate Economics Committee in the context of their Trade Practices-Australian Consumer Law Enquiry, along with a .pdf copy of the original Orders in Council [OIC] pursuant to s17 of the Electricity Industry Act 2000 (the Act) effective date 1 May 2002 I will attach this and the .pdf copy of the relevant Order in Council as separate attachments to my Main submission. Please would the AER publish this in addition to the consolidated appendices 1-15 The letter in particular states at p1 that: “Whilst some recent exemption Orders have dealt with small scale arrangements, this should be regarded only as a temporary measure, pending the development of more appropriate regulatory instruments. The Government would prefer not to rely on exemption Orders as the primary regulatory instrument for these embedded customer situations” The Orders in any case refer to electricity and not to GAS, as admitted by the ESC in their Final Recommendations of March 2007Small Scale Licencing Framework Final Recommendatijons Marhc 2007 found at http://www.esc.vic.gov.au/getattachment/819e811f-e249-4a8a-85d3-28cdcefa232e/Small-scale-licensing-framework.pdf I really must ask the question without intending any offence: Will the AER be any better able to handle these complex matters in the context of the rushed and in my view poorly considered Exempt Selling Regime (accepting that policy decisions must surely come from the employing authority the AEMC, despite notional perceptions of integration with the ACCC? The EMC reimburses the AEMC for all expenses incurred by the AER and insists on selection of staff and joint advertising. So how does that result in separation between policy-maker and regulator and with what outcomes? 23 In the absence of ready access to the online link for the letter from the Minister for Energy (but nevertheless in possession of a hard copy as well as a pdf copy sent to the Senate Economics Committee on 23 April 2010, I note the comments made by the ESC in their Final Report cited verbatim.: The small scale distribution and/or resale of electricity are currently regulated under the provisions of a general Order-in-Council (OIC) which exempts certain persons from obtaining a licence under the Electricity Industry Act 2000 (EIA 2000). Small scale operators may also obtain a specific exemption from the Governor-in-Council. In contrast, there is no general OIC applying to the small scale distribution and/or reselling of gas. As such, entities wishing to undertake the distribution and/or resale of gas at any scale must first either obtain a licence under the Gas Industry Act 2001 (GIA 2001), or obtain a specific exemption from the Governor-in-Council. While exempt from the obligations pertaining to a licence, the general OIC sets out certain terms, conditions and limitations that those exempted by the OIC must comply with to retain their exemption. Currently, there is no agency responsible for oversighting whether small scale distributors and resellers of electricity are compliant with the requirements of the OIC. In effect, those undertaking the intermediary distribution, supply and/or resale of electricity self-assess themselves against the requirements of the OIC.” The Report refers to the letter from Letter from the Minister for Energy Industries to the Chairperson of the Essential Services Commission of Victoria, 21 March 2006 but I cannot access this as before 24 Essential Services Commission (2012) Harmonization of Energy Retail Code and Guidelines with the National Energy Customer Framework (NECF) – Consultation Paper December 2012 Ref C/12/37632 http://www.esc.vic.gov.au/getattachment/6e7f7cd5-64a1-46c3-a8f7-467124b3a0f9/Consultation-Paper-Harmonisation-of-Energy-Retail.pdf last viewed 21 January 2013 25 This is a crucial item of supporting evidence which I can no longer locate online on the ESC website or through regular and repeated Google searchers However I am pleased to say that when it was readily accessible the letter dated 231 March 2006 addressed to Mr. Greg Wilson, then Chairperson of the ESC re Small Scale Energy Distribution and Reselling was retrieved as a .pdf document and forwarded by me on 23 April 2007 to the Senate Inquiry Australian Consumer Law (ACL) Bill For logistic reasons is too complicated at this late hour to separate this and a related document as a .pdf Order in Council pursuant to s17 of the Electricity Industry Act to neatly fit in with other Appendices as previously sent to the AER and other arenas and published as a composite document
26 3 Eamonn Moran, QC (Law Draftsman, Department of Justice, Hong Kong, formerly Chief Parliamentary Counsel for the State of Victoria with 32 years of legislative drafting) 4 Major Energy Users (2009). “The effectiveness of current gas and electricity emergency arrangements.” Discussion Paper prepared by Energy Security Working Group 27 4Major Energy Users (2009). “The effectiveness of current gas and electricity emergency arrangements.” Discussion Paper prepared by Energy Security Working Group 28 5Andrea Sharam, PhD currently works at the Community Housing Federation of Victoria as its Partnerships, Policy & Projects Officer. Prior to this role she was a councillor at the City of Moreland where she held the role of Councillor Responsible for Affordable Housing. In 2008 Andrea completed pioneering research for Women's Information Support & Housing in the North; 'Going it Alone: Single, Older Women and Hidden Homelessness'. She examined the role of sub-prime markets in essential services for her PhD thesis. Andrea was the President of EAG and has an extensive background in advocating around essential services. She also holds a Graduate Diploma in Planning, Policy & Landscape In most of my public submissions I have extensively cited from Dr. Sharam disturbing reports including EAG Retailer Non-Compliance Report Power Markets and Exclusions 29 6 See Madeleine Kingston (2008) Response to NECF Consultation RIS Part 3 Detailed Discussion of operational parameters, oversight of Energy and Water Ombudsman under the terms of EWOV’s constitution and charter http://www.ret.gov.au/Documents/mce/_documents/Madeleine_Kingston20081030102020.pdf http://www.ret.gov.au/Documents/mce/_documents/Madeleine_Kingston_part320081208120718.pdf 30 Madeleine Kingston (2008) Component submission to the Productivity Commissions Inquiry into Australia’s Consumer Policy Framework http://www.pc.gov.au/__data/assets/pdf_file/0006/89196/subdr242part4.pdf and subdrpart8 and subdr242part5, the latter not published on PC website but substance of which was published on the now archived MCE SCO website as my Response to NECF Consultation RIS Part 3 Detailed Discussion of operational parameters, oversight of Energy and Water Ombudsman under the terms of EWOV’s constitution and charter, ibid See EAG’s disturbing Report after obtaining FOI access to docs. Discussed by EAG in Brief Comment to the Ministerial Council on Energy (MCE) Legislative Package 2006, and Consumer Advocacy Arrangements. That EAG submission of 2006 also discussed the EAG Report on the ESC Energy and Water Ombudsman Victoria Response to Retailer Non-Compliance with Capacity to Pay’ Requirements of the Retail Code (Sept 2004) commenting on the total lack of triangulation. http://www.ret.gov.au/Documents/mce/_documents/EnergyActionGroup20070123103540.pdf This is a doc that I have frequently cited from as one of multiple appendices with my Submission to the Treasury’s Unconscionable Conduct Issues Paper Dec 2009, as well as to numerous other arenas including the Productivity Commission’s Enquiry into Australia’s CPF http://www.pc.gov.au/data/assets/pdf_file/0006/89196/subdr242part4.pdf 31 See especially responses of TRUenergy and Origin Energy regarding BHW arrangements in relation to credit rating in their respective summarized responses to the ESC Final Decision Review of Regulatory Instruments, both suggesting that there were remaining ambiguities regarding whether the use of the term (unpaid) water bills was intended to capture BHW and whether it was appropriate to include reference to water bills at all given that the ERC relates to energy provision. ESC confirmed that historically water bills may be included within assessment of energy credit rating, but also that BHW was not intended to be captured. Nevertheless such further clarification has not been included in the suggested pending Amendments to the Victorian ERC. At the very least confusion in the minds of all stakeholders should be supported with direct reference within the amended Victorian ERC, to be effective from 1 October 2009. It is regrettable that the wrongful disconnection procedures have been removed and that better clarity was never obtained as to disconnection of heated water supplies s opposed to gas or electricity within these provisions and the BHW provisions. The GIA and GDSC refer to disconnection or decommissioning of gas quite specifically as being the discontinuance of gas supply or suspension of the flow of gas. Yüklə 3,13 Mb. Dostları ilə paylaş:
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