Response to issues paper exempt selling regime madeleine kingston

INTRODUCTION

Context of my involvement

Shah et al (2007)⁵⁰ have asked some challenging questions about the role of the state and corporate interests in the politics of consumption, and have boldly asked whether scholarly attention and activist agendas should be focused on the state corporation over the citizen-consumer, given the centrality and power of the former, and how citizen-consumers and social movements influence nation states and corporation.

In case you think I am about to launch into rhetoric rest assured. I know how much fact and substantiation mean. Yet my hands are tied when I cannot access Government documents that used to be more accessible.

Is it all worth it? Who knows? And nobody cares. But I am always willing to give it a shot if time and circumstances permit.

The AER is aware of my long-standing involvement in the energy utility consultative and consumer protection arena and of my failed attempted to gain access as a potential Intervener in the Merits Review matter No5 of 2010 in the recent Jemena Gas Networks (JGN) Gas Access Determination by the AER for the 2010-2015 regulatory period.

I wear my rejection as a badge of honour, whilst noting the limitations of the law and other factors that have historically resulted compromised consumer voice in a seriously compromised policy, regulatory and industry performance climate. Others far more worthy have failed in gaining Merits Review Standing before the Australian Competition Tribunal, but the experience was worth its weight in gold and more.

The Energy Action Group holds that⁵¹:

“a number of Australian regulators bias their determinations in favour of the regulated entity to minimise the risk of appeals. To reiterate: if Section 291 (1) remains in the draft legislation no consumer who assesses the risk involved in this section will wish to appeal a determination. So the current legal appeals paradigm where the industry applicant v’s the regulator appeals process will continue, this process provides a tilted playing field towards the applicant providing substantial rewards to ensure that asymmetric appeals against the regulator will continue into the future.. Unfortunately this process has already set a number of precedents that will need to be overturned in the future by another legislative package.

I don’t have the expertise required as a sole unfunded ignored stakeholder.

EAG says⁵²:

“One of the most disturbing parts of the MCE proposed reform package of the Advocacy Panel is that several jurisdictions have prevailed on the rest to fund small and medium sized consumers at the expense of large consumers to cover many of the jurisdictional consumer advocacy oversights and the systemic failure not to fund low income programs and environmental issues. The solution of legislating funding for small and medium sized businesses will not be solved by directing most of the Advocacy Panel funding in this area. Unfortunately it takes many years to develop the skills and knowledge sets to have an effective input to the consultation and decision making processes in the electricity and gas industries.

Many of the industry players will be aggrieved by the position I take, believing that the AER in its regulatory role has been altogether too harsh. I beg to differ, but it is a good thing that discrepant views are expressed and that something may possibly be learnt from polarity.

I have been party to the public policy debate for several years especially in relation to consumer protection as they relate to energy provisions, trade measurement, generic and tenancy laws.”

Though I am an unfunded private stakeholder without affiliation to consumer interest groups, I believe I have amply demonstrated my willingness to stay the distance and to raise many issues that others are unlikely to because of the budgetary, mandate or focus constraints.

I have had extensive direct contact with those facing detriment and disadvantage as well as victims of the BOOT system of operation (buy, own, operate, transfer) that frequently involves collusive arrangements with trust companies, real estate agents, developers, landlords and suppliers of energy, metering data services of one description or another, often under circumstances that appear to have elements of third party line forcing, exclusive dealing and failure to meet fiduciary obligations.

For some two years I was a nominated representative for a person with disability in vain endeavouring to uphold his enshrined whilst vigorously opposing policies and practices within the energy arena that show promise of become more entrenched and more inclined to deprive end-consumers of utilities of their rights and entitlements or from realistic opportunities to seek redress and justice.

I refer those interested in the context to study the deidentified case study⁵³ that is already in the public arena and now represents Appendix 2 with this submission.

I have had extensive contact with marginalized end-consumers in various settings and from different backgrounds as part of my voluntary community work; I receive many requests for assistance, even to the extent that I am sent energy bills and anecdotal stories of disadvantage or negative experiences from the perspective of end-consumers of utilities in the vain hope that I could somehow influence policy and rectify market power imbalances,; policies and practices that are unacceptable, exploitation of one kind or another, including the activities of parties purporting at the behest of Body Corporate entities to undertake metering data, billing and debt collecting practices that I believe would not be consistent with statutory or common law sanctions.

I have at first hand witnessed consumer detriments to both consumers and organizations, including not-for-profit businesses such as Body Corporate Associations, associated with energy policy and the particular policies that I wish to highlight that form part of the regulatory decisions being made in relation to access proposals, cost allocations, reference tariffs and retail market operations.

I have had direct and abortive dealings with poorly resourced complaints schemes with charters and jurisdictions too restrictive to address the range of concerns that I wish to raise; with one such scheme who has expressed conflicts of interest in dealing with the groups of end-consumers loosely referred to as “embedded” though those receiving heated water supplies that are centrally heated in multi-tenanted dwellings are not embedded consumers of energy at all – since they receive no direct flow of energy.

I also refer to my direct participation in the stakeholder forum for the Exempt Selling Regime on 15 December 2010, and my ongoing involvement as a concerned stakeholder and ongoing involvement other initiatives including consultations initiated by the AEMC, MCE SCO (now SCER) Productivity Commission.

Previously I had actively participated in making submissions and attending public fora to the AEMC’s Competition Review in Victoria (2007-2008) and closely following the inputs of others into similar reviews, including South Australia; submissions to the AEMC Consultation on Metering Data Service Providers (MDS) and Clarification of Metrology Procedures Rule Change, as extensively discussed previously also in submissions to the AER in the Jemena [JGN] Gas Access Determination 2010-2015 original (April 2010) and revised (4 June 2010), and referred to in my Application to the Australian Competition Tribunal to Intervene in the Merits Review process.

In addition I made a submission⁵⁴ to the MCE Gas Connections Framework on 5 April 2009, which was appended to my submission to the Treasury’s Unconscionable Conduct Issues Paper⁵⁵ along with many other appendices.

All in all I have given the whole issue a pretty thorough airing and would provide more information and insight if time permitted.

By the say the National Measurement Institute remains the sole authority on trade measurement matters, and has been progressively lifting utility examinations as referred to in previous material. I don’t have the time right now to provide links and discussion regarding new developments

Though I was unsuccessful in my attempt to intervene at Merits Review level in the Jemena (JGN) Gas Networks Gas Access Determination (No 5 of 2010), my level of interest in the functioning of the electricity and gas markets; the issues of conduct and alleged cartel behavior including probable third party line forcing under s47 of the Competition and Consumer Act 2010 remains unabated.

In many ways I consider myself to be a private consumer advocate with strong community links and motivation to discover what is happening in the marketplace that impacts on a range of end-users and consumers not only those considered to be disadvantaged by financial hardship or other disadvantages

EAG⁵⁶ claims as follows:

“the EAG is the only active small consumer group working with the Major Energy Users Limited and the Energy Users Association of Australia on issues of common interest. A very conservative analysis indicated that at least 85% of the issues across the market are common for large and small consumers. In EAG’s experience in working with both organizations this figure is more likely to be 90 to 95% of issues.

En passant I mention the views of EAG⁵⁷ as follows:

“Unfortunately what the MCE is proposing is itself subject to some fundamental flaws that will hinder and harm consumer advocacy into the future, and contribute to an unstable and dysfunctional advocacy arrangement, as well as to a more inefficient, ineffective and inequitable use of funds. The consequence of both the AEMC Panel appointments and the MCE’s policy work on consumer advocacy is to almost guarantee that the reform process will suffer and consumers will get second best outcomes”

I believe in broad protection without segmentation and agree that the MEU and EUAA, have done much to protect consumer interests generally. I continue to cite Roman Domanski from the MEU for his contributions

I am unfunded and not associated with any of the bodies who do receive funding for research and advocacy and can access funds via the Advocacy Panel.

Whilst I uphold the views of many of the organizations who do participate in consultations and belong to Consumer Consultative groups who receive advance notification of consultations and adequate resources to assist that participation, I note that many simply do not have direct clientele and are focused on an agenda that predominantly addresses the needs of the disadvantaged or disabled, and mostly with regard to financial hardship. According to EAG the population of those who are disabled and disadvantaged represent about 5% of the total population.

My view is that the needs of all Australians, whether or not disadvantaged, whether or not small or large businesses, whether or not end-consumers with or without ‘demand’ contracts for the alleged sale and supply of energy, being gas or electricity only facilitated through flow-of-energy.

Identification of the correct contractual parties, of fiduciary duties and the like is cr4ucial to a fair properly function. As is the opportunity for effective engagement in the consultative and appeals processes. Those opportunities should not simply rest with funded bodies hampered by limited funds or special-interest foci.

These organizations do consult amongst themselves and do undertake research support their advocacy activities, but in the main there are no mechanisms in place for adequately, if at all engaging and consulting with the general public regarding views and priorities. I often find myself disagreeing with a compromising viewpoint, such as expressed by CUAC regarding exemption to landlords who have up to ten rental properties under a single title.

EAG has suggested that “there are considerably more issues facing the NEM than representing just the interests of around 5% of the energy sales across the market.”⁵⁸

At the same time I uphold many of the recommendations made by CUAC and CALV in their consultative input into the Exempt Selling Regime, save for the acceptance that as long as exempt selling by landlords is limited to those fewer than ten tenanted dwellings. I vigorously oppose such a proposal by the AER as this creates inequities and strips many consumers of their rights. It is a myth that redress and complaints options are adequate. Tenancy tribunals can only deal with disputes between landlords and tenants not where third parties are involved in the billing process or breaches of contractual rights.

Elsewhere I discuss the inadequacies and limitations of the industry-based complaints schemes known as industry ombudsmen. They do not conciliate or mediate, but rather investigate and make determinations within narrow constraints. There are also many conflicts of interests, as conceded by EWOV in their dialogue within the ESC Small Scale Licencing Consultation in 2006-2007. The complete lack of triangulation between EWOV and the ESC is analyzed in the disturbing EAG Report following FOI access to documents⁵⁹

I attended the launch of the CUAC Research Project Growing Gaps: Consumer Protections and Energy Re-Sellers (December 2012) and another “Minimizing Consumer Detriment from Energy Door-to-Door Sales (December 2012). The reports raise many concerns regarding market conduct lack of choice and inadequate redress options.

I have limited resources and have never sought funds from the Advocacy Panel or anywhere else to assist with the costs of persisting with futile attempts to engage with policy-makers and regulators

I remain most concerned about the rapidly developing scope for Exempt Selling under Revised Guidelines.

My views about the inadequacy of complaints and other redress including through existing industry-based complaints schemes where policy and legislative restrictions; complex relationships with economic regulators established under statutory enactments but believing themselves to be unaccountable because of incorporation as separate legal identity.

What do consumers do for Competition?⁶⁰ Dammed if I know. Pardon the French. Do consumer advocates of all descriptions get a look in when it comes to presenting a consumer-type viewpoint –and beyond. Who knows? Is there room to reform the Merits Review parameters? The SCER LMR consultation is examining this. Is there a hidden agenda?

I am deeply concerned about the policy and regulatory proposals in the context of the proposed AER Exempt Selling (Retail Exemptions) Framework.

I confess that because of limited notice of this new consultation with a new Draft Guideline, I cannot respond in detail to such a crucial and unexpected policy change that appears to be the beginning of opening up the market for a huge influx of applications for exemption from accountability.

The best regulations in the world are fairly worthless without a) a robust commitment to monitoring and enforcement; b) the political will and freedom to make brave decisions to protect consumers and foster confidence, bearing in mind the Confident Consumers mean Confident Markets⁶¹/⁶²

This was brought home recently at a Senate Economics References Committee: Inquiry into the post-GFC Banking Sector focused on the perceived gaps in ASIC’s handling of matters brought before it. This is covered in Hansard⁶³ at the public hearing on 8 August 2012, at which Peter Kell, previously Deputy Chair at the ACCC, and before that CEO at CHOICE gave and Senior Manager, Deposit Takers and Issues, ASIC.

There appears to be climate of eroded confidence in the monitoring and regulatory enforcement role of economic regulators across the board. Whatever my differences may be with funded consumer I can certainly relate to oft-mentioned lack of confidence in the regulatory framework and the functioning of the market generally and at all levels.

As to the proper definition of a consumer advocate and whether its parameters may usefully be expanded, perhaps I may refer to the views of David Tennant, whose views I uphold and whose brave rebuttal of the position of Chris Field was expressed in a speech at the 3^rd National Consumer Congress, hosted by Consumer Affairs Victoria, Melbourne 16 March 2006⁶⁴

David Tenant, does not mince his words about what it means to be a consumer advocate. This paper and other work by this author pepper my several abortive attempts to engage in the public policy consultative arena.

David Tennant refers to Chris Field’s Discussion Paper⁶⁵ point out that the basic concepts underlying the plan put forward by that author for Victoria are not limited by State boundaries

“In his rebuttal of the Chris Field position, David Tennant tackles the four presumptions⁶⁶ made by the former:

1. 
   Consumer advocacy should provide a voice for competitive marks
   
2. 
   Consumer advocacy should provide a voice for consumer protection regulation
   
3. 
   Consumer advocacy should provide a voice for consumer redress and
   
4. 
   Consumer advocacy should provide a voice for distributive justice
   

Says David Tenant in that speech:

The Discussion Paper presents the above proposition as more than just a working definition of consumer advocacy. It is given almost the significance of a mission statement being referred to on several occasions presumably to emphasize what consumer advocacy should be all about.

Here’s some food for thought as the AER and others prepare for a national regime, challenge to the efficacy of the current Limited Merits Review parameters.

As a general statement of intended outcomes the quote above appears entirely reasonable. Trying to achieve the best results for as many people as possible, in ways that meet a general societal expectation of what is fair and just is a worthy goal. But does it fulfill the responsibility that follows being asked to speak for another? If the other is a person or people of average means, with average capacities and expectations, perhaps it does. In my view however consumer advocacy requires a working definition sufficient to meet the needs of those who are not average, pressing for responses that are not simply reflections of current societal norms. Indeed, it is often the case for the vulnerable or disadvantaged that normal societal activity has caused or contributed to the harm they need to have addressed.

There are alarming proposals may I say, first to set up a Not-for-Profit Regulator within the AER; then to moving both the AER and proposed NFP Regulator from the fold of the ACCC (at least the nominal fold since the AER substantially directs AER personnel; chooses staff jointly with the ACCC; and accepts liability for ALL expenses incurred by the AER in the fulfillment of its functions.

There are indeed some thorny issues regarding loyalty division and confusion and perhaps a reluctance to bring to the attention of the ACCC or ASIC or other appropriate bodies matters or direct evidence that may come before the AER in the course of its duties.

The question of whether or not regulators have sufficient power or political will to ensure at least adequate monitoring of the functioning of a predominantly monopolistic market despite all perceptions of effective competition within the gas and electricity markets throughout Australia at a speed dictated by pre-determined timetables rather than what may be actually happening.

It is in that frame of mind that I hasten to prepare to submit alas an incomplete submission, as harnessing new and supporting raw data would need more time and care.

So here it is, largely reflecting previous views and holding my ground that the entire policy except in the most limited circumstances is fraught with potential problems that will ultimately impact on users, businesses and end-consumers alike.

Whilst still on introductory, I discuss below the Arrow Asset Management case and some implications for policy makers and regulators throughout Australia.

I refer again to Peter Kell’s views of half-baked self-regulation⁶⁷ at the time when he was CEO of CHOICE. He is now Deputy Chair at the ACCC and the public rarely hears from him. He had some interesting views to express about holding corporations to account and the value of self-regulation policies, as expressed in three consecutive years at National Consumer Congress events I still have those transcripts with souvenir value at least.

Where to from here? Consumer protection and market conduct become increasingly compromised whilst we hurtle into an abyss of uncertainty and poor confidence.

My limited kaleidoscopic view as a lone stakeholder who has persisted with the same issues for six years has taught me how much more there is to learn and how hopelessly inadequate the current policies, regulations and consumer protections appear to be.

Do I have any room to hope for improved vigilance, monitoring and consumer protection within statutory policies?

Or will it take multiple class actions before the open courts to achieve results. Is not the Arrow case sufficient in itself? What can the public rely upon in terms of a commitment by regulators to uphold the statutory instruments that they administer, or to more proactively investigation possible breaches when brought to their attention?

What of policy-makers, rule makers, industry-run, funded and management complaints’ schemes purporting to adopt best practice in the case of the Energy and Water Ombudsman Victoria’

My efforts to date to highlight these concerns appear to have fallen on deaf ears, but I ask once more that they be heeded.

Failure to comment on any one aspect of the Issues Paper does not imply endorsement.

Please refer to other submissions and commentary including to the MCE AER Productivity Commission, Treasury

http://www.pc/gov.au/data/assets/consumer/subdr242 of several components

http://www.pc.gov.au/__data/assets/pdf_file/0006/89196/subdr242part4.pdf

http://www.pc.gov.au/__data/assets/pdf_file/0007/89197/subdr242part8.pdf

http://www.ret.gov.au/Documents/mce/_documents/Madeleine_Kingston_part320081208120718.pdf

http://www.ewov.com.au/__data/assets/pdf_file/0014/4334/060825-L-EWOV-comments-on-ESC-Small-Scale-Licensing-Framework-Issues-Paper.pdf

Sincerely

Madeleine Kingston

Private Stakeholder

BRIEF COMMENT ON THE IMPLICATIONS OF THE ARROW ASSET MANAGEMENT CASE

I refer to Arrow Asset Management Case Community Association DP No 270180 v Arrow Asset Management Pty Ltd Pty Ltd & Ors [2007] NSWSC 527 delivered by McDougal J on 30 May 2007

As observed at length in my previous similar submission to the AER’s Exempt Selling Regime Issues Paper. the landmark Arrow Asset Management case the potential to change the entire landscape in Australia with regard to practices either inadvertently or tacitly endorsed by policy-makers rule makers and regulators, notably within the property and energy, water and utility arenas and well beyond. A convincing tale has been provided by industry participants as to how a rapidly growing ancillary service industry that has naught to do with provision of energy or gas, and that is not covered by current instruments or diluted protections.

See analysis by Francesco Andreone⁶⁸ SC who published a paper in 2009 following the Asset Management Case decision, and presented this at the Strata and Community Title in Australia for the 21 Century III Conference.

I also refer to the summary by Gary Bugden of the Arrow Asset Management Case has implications for the whole of Australia.

See Arrow_Case_Management_Legal_Precedent_NSW_Gary_Bugden_Summary.pdf⁶⁹

It concerns me greatly how easily the AER and others have been taken in by and pandered to monopoly-like energy providers and asset management providers linked to them. There is a big wide world out there of documented exploitation.

The implications of this matter are far reaching some being well beyond the regulatory scope of the AER and related energy policy and regulatory bodies under various instruments.

Nevertheless the AER makes decisions impacting not only on the functioning of the wholesale and retail markets in one way or another that have snowballing effects not only within the energy arena, but on other jurisdictional parameters where there is conflict and overlap between schemes, and where the decisions of one policy make, Ryle Maker or Regulator has snowballing impacts on the enshrined rights of individuals corporations and other entities.

Those impacted include Residential tenants, including those living in community developments (strata title); and including those not labelled (without intending offence) as facing disability, disadvantage or compromised ability, for lack of a better term because of being ‘inarticulate);

This group includes those inappropriately deemed to be ‘embedded customers’ of gas, through use of inappropriate measurement tools, being hot water flow meters, that measure the flow of water, not the flow of gas, as a good described in generic, trade measurement and national energy provisions

In this regard please refer to my Case Study Appendix 2 in my submission dated 2 August 2010 to the AER Exempt Selling Regime, in which I explained my direct involvement as a nominated representative for a person who was labelled both “inarticulate, disadvantaged and disabled” and who because of his predicament was unable to represent his own position.

One of my case studies illustrates consumer detriment to a disadvantaged residential tenant because of being inappropriately deemed to be receiving energy, whereas in fact he was merely receiving heated water heated by a single gas meter. I have discussed this elsewhere at length including in Appendix 2 Major Deidentified Case Study also previously submitted to the AER Issues Paper and published along with 15 other appendices as a single document in my submission of 4 August 2010

I refer in particular to a recent ASIC decision to suspend a certain property spruiker Henry Kaye from managing corporations for five years; to the joint venture by Inkerman Developments and the Victorian City of Port Phillip, and similar property developments in other states seeking to lock in for well in excess of two decades (though sometimes less) to service agreements forced onto unsuspecting purchases of strata titled property for alleged provision of gas, electricity, water and heating services and other bundled services. The practices could be interpreted as breaches of s47 (exclusive dealing) of the Trade Practices Act 1974 and of numerous other provisions

Energy policy makers, rule makers and regulators are oblivious to or disinterested in outcomes and impacts on the general community including residential tenants, shop-owners, owners’ corporation entities and others.

The following links may provide some insight into recent concerns, but new developments compel me to further iterate the unmonitored impacts of multiple energy and urban water policies. My plea to the ESC and equivalents in other states and territories; AER, MCE, AEMC AEMO ACCC and ASIC is to more carefully monitor what is happening in the marketplace.

I will be elaborating further but meanwhile the following links may be helpful to those wishing to explore the matter further.

Draft decision AEMC rule change MDS and metrology

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

Kevin McMahon main submission 3rd July AEMC-ERC0092

Kevin McMahon Supplementary submission 11 July to AEMC MDS Rule Change ERC-0092

AEMO submission 1st July AEMC to ERC-0092 

Integral Energy submission 7th July to AEMC -ERC0092

Kevin McMahon Submission 8 March 2010 to MCE National Energy Customer Framework (NECF2)

AER Submission to National Customer Framework NECF2 see p3 Exempt Sellers

Madeleine Kingston Submission 2008 to ESC Review of Regulatory Instruments

I am aware of more than one legal matter on foot in the open courts challenging the precepts that have been adopted in the lucrative serviced hot water data metering provider monopoly and exploitive market.

In the other major Case Study presented as Appendix (Legal Dispute between Body Corporate entity and Service provider I discussed the situation wherein the middleman is not the Body Corporate, but a Service Provider appointed by the Original Owner and Developer as a Body Corporate Guardian before the Owners Corporation was formed. The similarities to the Arrow Asset Management case are obvious.

The Body Corporate entity did not wish to be locked into service or supply arrangements not selected by the Body Corporate. All agreements were signed by a Body Corporate “Guardian” appointed by the Developer whilst he was selling off the plan, and before any Owners’ Corporation Committee or Agreement was approved by that Committee. The validity and legality of the service contract are amongst the issues in dispute.

The Service Provider expected a massive “pay-out” for infrastructure claimed to be owned by them. This includes plant and services equipment normally an integral part of a Body Corporate entity common property including boiler tanks, pipes, embedded cabling and wiring.

The same meter also provides gas for cooking purposes.

The gas meter marked with Multinet’s name has been occluded so that the meter reading cannot be independently determined by the owners’ corporation. No bills are issued by a gas retailer.

A bundled bill issued by an unlicenced service provider apparently providing “billing and other services” (?an MDS category of provider with possible association with licenced energy providers and/or the Developer)

Not only are there fiduciary duty considerations under enshrined common law principles crucial to consider following the Arrow decision, but so are other possible breaches under previous and existing generic laws. These include⁷⁰ Cartel conduct. s45, Bid rigging s44ZZRD; exclusive dealing s47; full line forcing s47; loss leading s98; market division s4477RD; Primary Boycott 4D; predatory pricing; price fixing, resale price maintenance, s96; restricting outputs (output controls) s44ZZRD secondary boycott s45D; third line forcing s47.

I have many concerns about alleged cartel conduct and have tried repeatedly to bring certain facts and issues before the AER, ACCC, and other arenas. Following my attendance at the Public Forum for the AER Exempt Selling Issues Paper, I introduced to the AER a victim of alleged cartel conduct as President of an Owners’ Corporation entity for Oasis Inkerman Developments, of Henry Kaye notoriety, providing evidence of attempts to force a long-term contract on unsuspecting original and subsequent owners and tenants residing at those premises.

It is unclear what action the AER may have taken in following this matter through with either the ACCC or ASIC. I have already published many of my concerns in Appendix 1 to the AER Exempt Selling Regime.

I note from Francesco Andreone’s analysis of the Arrow Assets Management Case that the third defendant Australand Consolidated Investments Pty Ltd (known as the time as Walker Consolidated Investment Pty Ltd (Australand). I also note that one tenant in the property at 77 Grenfell Adelaide SA is known as AUSTEO (previously AUSTRALAND; the third defendant in the Arrow Asset Management case (the second defendant being Bondlake Pty Ltd (Bondlake). Is AUSEO fulfilling the role of a “Body Corporate Guardian” in this situation? What questions need to be asked before an exemption licence is granted. Will the implications of the Arrow Asset Management Case be taken into account?

The host retailer at the 77 Grenfell St Adelaide, the subject of a current application for exemption, with 20 floors, 18 occupied by a government department is AGL. At the Oasis Inkerman address the single gas meter that heats water for scores of residential tenants or owner/occupier is owned by Multinet, which is managed by Jemena (see selected analysis of Distributors and Asset Management Operators elsewhere)

I believe there may be scope for further scrutiny of the application seeking individual exemption by Energy Metering Services ABN 32 143 143 908 AER - I1/13 as a provider of various services to the Body Corporate to enquire whether there may be something to be gained from the Arrow Asset Management case referred to elsewhere.

I note also TrustPower Australia Holdings Pty Ltd ABN: 15 101 038 331 application for exemption under the AER Exempt Selling Regime on the basis that dealings to negotiate long-range contracts will be undertaken by the big boys who can look after themselves.

What may be the implications here in the light of the Arrow Asset Management decision of 30 May 2007?

Trust Power, with NZ and Victorian connections, based in Victoria, operating for the purposes of this retail licence in SA, transferred as authorised retailer from ECCOSA to AER now seeking exemption under exempt selling regime, associated with very high profile comp-any, mainly wind energy. Plans for massive expansion into other states, seeking to sell to major players, plausible explanation for seeking exemption “major parties can look after themselves)

Are there fiduciary duty considerations. Is there a BOOT Scheme involved? What are the similarities with the Arrow Asset Management Case in recent 2007 Decision McDougall, J Community Association DP No 270180 Arrow Asset Management Pty Ltd & Ors [2007] NSWSC:527 McDougall J on 30 May 2007.

Should exemptions be provided to continue to carve out whole segments of the Australian community whether as major users, medium sized, small business, end-consumers as individuals, whether or not disadvantaged? I believe not.

At any rate I am not convinced that despite the revised Exempt Selling Guideline that monitoring and enforcement will be easy to handle in a rapidly growing market seeking to dilute existing already weak protection laws.

How will diluted energy provisions, including the entire exempt selling regime possibly eliminate in these of other circumstances obligations under the Consumer and Competition Act 2010; cartel conduct various descriptions, including third party line forcing s47, full line forcing s47; bill rigging etc. etc. others, including s45.

How will diluted energy provisions, including the entire exempt selling regime possibly eliminate in these of other circumstances obligations under plain and simple common law obligations, including fiduciary duties, see implications of Arrow Asset Management case [2007] NSWSC 527 delivered by McDougall J on 30 May 2007 (see Gary Bugden’s analysis; recent 2009 paper by Francesco Andreone (2009), delivered 2011 at Strata and Title Community Title in Australia for the 21^st Century III Conference (15 pages printed)

What about State-owned facilities operating on a commercial basis. Should they be exempted too? I think not.

There is an endless list of unmonitored or else conveniently ignored issues contributing to market failure in the energy, utility, water asset management and other sectors

Include mention of see-through tax advantage, burgeoning asset management and small scale licencing industry