Response to issues paper exempt selling regime madeleine kingston

Comment MK

The National Measurement Institute’s scope may provide unique opportunities to lead the way for consideration of such half-forgotten principles. The Treasury within the context in this paper has yet another chance to examine how the system as failed to work so far – with half-baked self-regulation, inadequately phrased legislative provision and discrepant interpretations thereof, leading to distortion and compromise to consumer protections

Some Specifics

First I turn to the confusing terminology used under Div 1 Part 1, 103 above. The wording is not plain enough for those wishing to grasp which laws to rely upon. This is more so since for whatever transitional or other reasons, these laws are in direct conflict with certain other subordinate energy provisions including under Codes.

Not only is there conflict and contradiction, making it entirely impossible to rely upon such fundamental concepts as the direct “flow of energy” to the premises of those deemed to be receiving energy and contractually obligation for the sale and supply of energy, but if certain jurisdictional provisions are to be relied upon they are also in direct conflict with other laws and provisions, including

Selected considerations include the following:

Direct conflict with enshrined protections under the common law, including contract law provisions and the provisions of natural and social justice

In Victoria s15 of the Essential Services Act 2001 specifically prohibits conflict and overlap with other schemes and adoption of best practice. As discussed at great length within my published submissions to the consultative arenas, and referred to in my Deidentified Case Study including in most of these including that to the Treasury's Unconscionable Conduct Issues Paper (2009).

The provisions of s15 seem to have been treated with derision by the ESC (Vic) and Consumer Affairs Victoria were unable to persuade this body, believing itself to be unaccountable simply on account of his legal structure as an incorporated body with limited guarantee but without share portfolio, though set up under statutory enactments and administering statutory provisions.

Existing provisions and proposed changes to generic laws, including under substantive unfair terms provisions (whether or not sanctioned by policy makers and regulators), and including the model terms and conditions proposed for deemed and standard contracts as included in the NECF2 package; statutory and implied warranty provisions.

The emphasis here is on predications for the sale and supply of energy (see for example proposed revisions to statutory and implied warranty)

Note sale of gas and electricity are commodities both within generic and jurisdictional Sale of Goods; ongoing supply through direct flow of energy constitutes a service; certain other services such as metering, billing and the like are supplied to OCs not end-users unless a direct flow of energy can be established through legally traceable means, regardless of any change of ownership or operation. Note also that embedded consumers can only be of electricity, since there are no networks for gas.

In relation to generic laws addition, no passing acknowledgement has been made regarding contemplated further changes by the Federal Treasury with respect to unconscionable conduct provisions through inclusion of a non-exhaustive lists of unconscionable conduct behaviour or circumstances. The advice of an expert panel has been sought on this issue, who are also considering whether generic laws should cover the needs of small businesses.

Any changes that result from Treasury recommendations will impact on final inclusions in the proposed NECF2 Package, to be rubber-stamped through Parliament in September. I raised this issue at the Workshops in February, but am disappointed that the organizers chose not to volunteer the information that may be pertinent to both industry and consumers.

The Federal Treasury is considering further amendments to generic laws, especially with regard to unconscionable conduct provisions

Trade measurement provision upholding the legal traceability of goods, notwithstanding that the lifting of some utility exemptions has not yet been effected, bearing in mind recent changes to national measurement provisions

Sale of Goods Acts and changes to generic laws.

Note that by the end of 2010 all states will need to bring their generic laws into line with generic provisions. There have been specific changes in relation to sale of goods act, ownership of the goods deemed to be sold and a host of other issues to be taken into account.

Electricity and gas are goods (commodities). They therefore attract the full suite of protections available.

The services that are provided to Owners Corporations should in terms of any supply charges, metering data charges and the like are undertaken as a result of a direct non-transferable contract with the energy provider through whichever servant contractor or agent is employed. The proposed new category for the provision of such services in terms of electricity will be called Metering Data Provider. Nonetheless if these parties are engaged as outsourced contractors to either the developer or retailer or other third party, the contract for sale and supply of gas is with the energy provider not the MDS.

Therefore in the event of dispute, the en-user customer (if body corporate) or end-user only if directly supplied with energy through its direct flow into the premises deemed to be receiving energy (rather than heated water) will be able to take an action against either retailer or developer. The subsequent apportionment of liability between those parties is a matter between them.

It has been my direct experience and on the basis of anecdotal information provided to me that various parties endeavour to escape responsibility for directly resolving issues arising out of actions taken by servants contractors and or agents in relation to metering data services that are in fact contractual matters between Developers or Owners’ Corporations, not end-users who are victimized by unnecessary and unjust imposition of contractual status for alleged sale and supply of energy that is not delivered at all through flow of energy.

For settlement purposes only a single gas or electricity meter exists and that is installed and maintained at the request of Developer or Owners’ Corporation. These principles need to be properly understood, especially with the formation of a new category for metering data service provider (electricity) which may also be incorporated into further gas Rule Changes.

COST-SMEARING IMPLICATIONS FOR THOSE FACING HARDSHIP

The focus of the vast majority of recognized consumer advocacy input from various funded entities on hardship, as are jurisdictional consumer protection provisions (such as Victoria’s Wrongful Disconnection provisions and EWOV’s limited role under highly restricted charter and constitutional limitations.

I have absolute empathy with groups of end-consumers of utilities and other goods or services facing hardship and have contributed my own small share of input into those client groups.

However, I am also empathic to the needs of the general population not facing hardship, small businesses and even larger businesses, since philosophically I believe that all consumers of goods and services deserve to be catered for equitably with regard to their specific and general rights, including those under the common law, and with particular regard to contractual rights.

For those reasons I am absolutely philosophically committed to provisions within the generic laws and other provisions that recognize not only the specific needs of those facing hardship either ongoing or temporary, but to the needs of the entire Australian population as consumers of goods or services of any description.

In addition I am committed to the fundamental principles of corporate social responsibility and corporate ethical conduct, as well as to the forgotten original principles of national competition policy as upheld by Panel Members of the Senate Select Committee on Competition Policy (2000) (including Graham Samuel, AO, Chair ACCC and Dr. S. Dovers) as cited in some of my public submissions to consultative arenas including to the Productivity Commission’s Review of Australia Consumer Policy Framework 2008 (subdr242parts1-5, 8).

My suggestion for exemption from any cost-smearing exercises undertaken were intended to extent to all those facing hardship, not just as a consequence of , not just as a consequence of RoLR events.

In discussing the Fuel and Energy’s Terms of Reference No. 10 – the impact of the Government’s emissions trading scheme and a rising carbon price in all years that the scheme is in place, the commissioned report from Concept Economics made these observations³⁵¹:

10.2. COST OF LIVING PRESSURES FOR HOUSEHOLDS, PENSIONERS AND INDIVIDUALS MORE GENERALLY;

As the Treasury notes (Treasury 2008a, p. 199) the ‘initial impact on households will be through increases in electricity and gas prices’. The Treasury further notes (p. 199) that ‘While the price impact of the scheme is estimated to be relatively larger for low-income households, these impacts will be offset by the Government’s commitment to help households adjust’. The burden of the scheme on households depends crucially on the actual permit prices that result under the scheme and the way other policies (such as the commitment to a fuel tax offset) interact with the scheme. As mentioned above there is considerable uncertainty about the level of the projected permit prices as there is about future government policy.

The Treasury (2008a, p.192) notes that the G-Cubed model was used to make estimates of the impact of the scheme on inflation and the possible monetary policy response. The Treasury (2008a, p.192 notes that ‘In Australia, the CPI rises by 0.7 per cent in 2010 in the CPRS -5 scenario and by around 1.1 per cent in the CPRS -15 scenario’ and that ‘After the initial spike, inflation continues to be slightly higher than the reference scenario’. This result appears to arise from the way in which future permit prices have been constructed.

What needs to be considered is the way in which permit prices will unfold in the real world –in a real permit market prices will not follow a smooth path with no variability at the Treasury’s assumed real rate of interest. The ongoing increases in permit prices (and therefore the price of energy) will have implications for the conduct of monetary policy. Ongoing relative price changes (which require no monetary policy response) may be mistaken for ongoing changes in the general price level (inflation), and vice versa. This complicates the task of monetary policy.

These considerations should be taken into account when non-prudent unnecessary costs are sanctioned, say for example through metering data costs that are unrelated to sale and supply of energy, or to its distribution and transmission.

Business building by extending product ranges is one thing, but provisions that have the effect of distorting the scope of legislation governing energy, and are in conflict with other laws, pushing up even further the price of energy is another matter.

That will affect not only those facing hardship but the entire population.

COST-RECOVERY PRINCIPLES GENERALLY

Finally I express grave concerns about the direction that cost recovery principles are taking as illustrated by Rule change after Rule Change. I site one below from the AEMO/AEMC standpoint.³⁵²:

8.1 Rule Change proponent’s view

The Rule Change Request addresses the recovery of costs from market participants by introducing regionalization of cost recovery for “other” directions. In AEMO’s view, this establishes a more appropriate degree of consistency between the three categories of direction, and “promotes a more appropriate allocation of compensation costs between regions and ensures costs are passed through to Market Participants who benefit directly from consequences of the direction”.³⁵³/²³

In response to the NGF’s alternative approach to the issue, AEMO questioned the NGF’s statements regarding customers exclusively carrying the recovery of compensation costs for ancillary services, and that pricing and compensation in the event of a market intervention are based on the concept of leaving generators unaffected by the intervention.

8.2 Stakeholder views

In its 24 August submission, the NGF argued that that the outcome of the application of the existing framework for cost recovery – namely the vast majority of directions being considered as “other” services – “has not been in accordance with the intention of the Rules”.³⁵⁴/²⁴ The NGF proposed the introduction into the Rules of a clarification of the circumstances in which AEMO may classify a direction as an “other” service. This guidance, which would result in the bulk of directions classified as directions for energy, would shift responsibility for funding compensation from generator and customers to solely customers. The NGF contends that this shift to recovery solely from customers is appropriate, on the basis that:

The Rules provide for recovery of costs arising out of energy or MAS directions to be carried exclusively by customers, reflecting the fact that directions are generally for the benefit of customers only (i.e. by avoiding the need for load shedding).

My concerns are extensive and embrace current regulatory determination access proposals that expect to make full cost recovery for the expensive replacement and maintenance of metering infrastructure that is not required in any context for the proper assessment of gas or electricity consumption (see extensive discussion re jurisdictional “bulk hot water policies” wherein water meters are being used with policy and regulator sanction to calculate deemed gas or electricity usage by end users of heated water of varying quality without any supply of energy through “flow of energy” to their residential premises. To my way of thinking this represents exploitation.

See submission of UnitingCare to AER

Electricity distribution networks UnitingCare submission

I cite from J. E. Cameron’s views on sustainability and triple bottom line parameters

Auditor General Victoria. (2004) Beyond the triple bottom line. Reporting on sustainability Occasional Paper (J. W. Cameron)

Meanwhile I refer to the words of a previous Victorian Auditor-General, J. W. Cameron Foreword in his Occasional Paper concerning triple bottom lines³⁵⁵ and quote this directly to reinforce the principles that Australia should be embracing in every move to improve consumer protection and improved market functioning. He refers to the three pillars of sustainability as being environmental, social and economic.

In referring to wholistic approaches on p31 Cameron speaks of says that industrialized countries like Australia

“….are increasingly recognizing that economic wealth alone is not an adequate measure of a society’s development.³⁵⁶/⁷³ In response to this shortcoming, several measuring and reporting projects augmented the concept of economic development with environmental and social considerations.”

In his forward on page 3 Cameron discusses triple bottom line reporting as follows

FOREWORD (p3)

Sceptics might say that triple bottom line reporting is just the latest management fad. I see it rather as the tip of an iceberg. Beneath the calls for triple bottom line reporting is a groundswell of support for the larger idea of sustainability. What is this idea? What is driving it? What are its implications for the Victorian public sector? And how should we respond?

This paper sets out my Office’s views on these questions and connects readers to the research we conducted to develop our views.

We all find it easiest to work with concepts that are clearly defined, stable and easy to measure. Sustainability has few such attributes. It has no universal definition, and has changed shape over time in tune with community demands.

It is multifaceted, and the relationships between its components are as important as the components themselves.

Clearly, sustainability is difficult territory, both for public sector managers and for auditors. However, it could also be a powerful stimulant for public sector performance. This paper exhorts public sector agencies to re-examine and improve their current performance measurement and reporting practices. It also provides an insight into how my Office will approach auditing sustainability initiatives in the Victorian public sector.

The paper pays particular attention to measuring and reporting, for two reasons. First, they feature heavily in the sustainability arena where they are used to drive performance improvements and pursue accountability. Second, it is my Office’s role to audit the effectiveness of Victorian public sector programs and assure the accuracy of their public reports. We therefore have a special interest in measuring and reporting.

Multilateral organizations such as the World Bank,³⁵⁷/²³ the United Nations,²⁴ the Organization for Economic Cooperation and Development²⁵ and the International Labour Organisation²⁶ recognize institutional and governance pillars.

The institutional pillar covers the ‘formal and informal civic, political and legal arrangements that make up market activity and civic life.’²⁷ The governance pillar covers efforts to achieve an ‘informed, pluralistic and involved society but with shared basic norms, standards and aspirations.’28 Some agencies treat these two dimensions as processes for pursuing the three main pillars. (p14)

“The terms ‘sustainable development’ and ‘sustainability’ are used in various ways, sometimes interchangeably. In this paper, sustainable development refers to economic development that is environmentally and socially sustainable (as defined in the 1987 Brundtland report²). Sustainability refers to the broader concept of balancing the environmental, social and economic concerns relating to any issue.

This wider scope means that the concept has a broader applicability in the public sector, particularly in the strategic planning area.”

At the global level, efforts have been made for more than 30 years to integrate economic development with social and environmental concerns (Figure 1). Today’s concept of sustainable development can be traced back to the 1987 World Commission on Environment and Development, and its influential Brundtland Report.

See rebuttal of the philosophical position of the Essential Services Commission in Dr. John Tamblyn’s PowerPoint presentation at the World Forum on Energy Regulation, Rome Sept 2003 The Right to Service – are Universal Service Obligations compatible with effective energy retail market competition? Tamblyn World Form of Economic Regulators Rome 2003) (Dr. Tamblyn is now Chairperson of the AEMC. From 1 July 2010 he will be replaced as Chairperson by John Pierce, currently Secretary of the Department of Energy and Resources).

Finally, I refer to the statements made by Mr. Knuth during the debate over the Second Reading Speech of the (then) Treasurer, now Premier of Queensland, The Hon Anna Bligh, MP, in relation to the Energy Assets (Restructure and Disposal Bill 2006³⁵⁸ and his concerns over costs implications for the ordinary Australian.

“Mr. KNUTH (Charters Towers—NPA) (12.35 pm): The Energy Assets (Restructuring and Disposal) Bill 2006, introduced by the Treasurer, deals with emerging issues within the Energy portfolio.

It gives me great pleasure to address this bill as I rise for the first time as shadow minister for the Energy portfolio.

The energy industry restructuring process has been a complex and staged process that has previously involved the separation of the electricity generation transmission and distribution components of the industry from the government owned monopolies that previously ran the whole system.

The point of this process is for the government to prepare the energy distribution components of the industry for privatization and ultimate sale. The bill will allow for the preparation of the packaging process to occur within a time frame that is intended or supposed to achieve the maximum financial return for the state.

172 Energy Assets (Restructuring and Disposal) Bill 12 Oct 2006

In expressing concern on a number of issues associated with the privatization of Queensland’s electricity retail supply industry, I am very keen to seek the Treasurer’s assurances on a number of matters, especially those involving ordinary electricity consumers in rural and regional electorates such as mine. For the most part, they will be among the 600,000 or so consumers not serviced by the new privatized energy entities that will operate in the full retail competition market after 1 July 2007. The government has recognized that some parts of the retail energy market are simply never going to be profitable enough to be attractive or viable for private sector operators.

From the briefing on the bill provided by Treasury, my understanding is that there will remain approximately 600,000 retail energy consumers who are mostly current Ergon customers whose retail energy needs will continue to be met by an energy entity that is a government owned corporation.

By necessity, this GOC will need to be funded as part of the government’s community service obligation. It will not be in the position to deliver a profit to the government for reinvestment in its infrastructure base.

I respectfully ask the Treasurer, in her summing-up on the debate of the bill, to outline for the House how she will ensure that those 600,000 electricity consumers who will need to depend on the government’s own electricity entity will be adequately provided for. This is a major issue for constituents in my electorate of Charters Towers and, I am sure, for many others in remote parts of the state.

In raising this issue I convey to the Treasurer in the strongest and most sincere terms that I am not over-dramatizing or exaggerating the importance of this matter to people in rural, regional and remote parts of the state.

There is a world of difference between the profitable electricity market of the southeast corner of the state which, through this bill, is being groomed for privatization and the market provided by my constituents.

For the benefit of this House, I would like to inform members firsthand of some of the harsh and expensive realities involved in being connected to an electricity supply in rural and regional Queensland.

I shall share the experience of one of my constituents who resides on a property in Hidden Valley. This constituent received a letter from Ergon Energy dated 29 September 2006 thanking him for his request for Ergon Energy’s network connection service to provide an electricity supply to his premises. The letter includes a quotation for this connection service, which requires a customer contribution of $225,000.

That is not an amount one would expect to pay when moving house somewhere in south-east Queensland. However, the quotation does include an Ergon Energy contribution of a lousy $11,000.

Certainly, those who have an acute interest in infrastructure and privatization have been deprived of the opportunity to participate in this debate.”