Victoria Australia
(03) 9017-3127
21 January 2013
Sarah Proudfoot
General Retail Markets Division
Australian Energy Regulator
GPO Box 520
Melbourne VIC 3001
By email: AerInquiry@aer.gov.au
Dear Ms Proudfoot
AER Approach to Exempt Selling –Re-Drafted Exempt Selling Guideline November 20122/3
I respond to the final consultation in a limited way and for extending the deadline for response. I note that the response from CUAC is the only other consumer response to date. I apologize for the delay:
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because of late notification prior to the holiday period in an email that had no subject line providing details of a Revised Exempt Selling Guideline with far-reaching implications;
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other commitments;
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because consumers generally are not taken too seriously by policy-makers, regulators and/or so-called independent bodies fulfilling public roles
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because individual stakeholders such as myself may as well not exist as they have the least chance of being heard no matter how much effort they make to present either informed or uninformed opinion and whatever they may do to substantiate inputs
I hope that negotiated extension of deadline means that the submission will be accepted, published openly and considered.
I propose to continue to canvass my views one way or another since I firmly believe that the entire Exempt Selling Regime, even in revised form represents a move to open up the floodgates, so to speak for a dysfunctional market that cannot be good for a well-functioning confident market that includes meeting consumer needs and enshrined rights.
I am submitting a 624 page Main submission structured in a similar way to my previous submission to the Exempt Selling Regime Issues Paper, adding a few new sections and updating others.
I am also resubmitting as attachments the same batch of Appendices (1-14 including several case studies and ask that these be published separately in one batch to make access more manageable given the length of the Main Submission.
As I was I was unable to locate online important documents relating to the ESC’s Small Scale Liencing Review in 2006, and in particular the response by the then Minister regarding the Order in Council 2002 used for purposes never intended by Government
Therefore as I had secured copies of both the Order and the letter from the Minister dated 21 March 2006, I am separately send these as discrete additional documents numbered Appendix 9A and 9B respectively so as not to disrupt the numbering of previous appendices resubmitted
The supporting data is meaningful and I will be disappointed if it is not published in addition to the Main Much of this material is already familiar to the AER, MCE, Productivity Commission, Treasury, Senate Select Committees and other numerous State and Federal Bodies, Ministers and Not-For-Profit entities (NFPs; NGOs).
The good news is that I am re-submitting much of what has already been submitted to the earlier Exempt Selling (Retail Exemptions) Consultation (Issues Paper),
Please publish my entire submission and appendices transparently including such contact details as are provided.
Thank you for inviting me to participate and again apologies for lateness.
Sincerely
Madeleine Kingston
DISCLAIMERS
Subject to appropriate acknowledgement and citation, I place no restrictions on dissemination of this material with the disclaimers herewith. This material, including all appendices have been prepared as a public document to inform policy-makers, regulators and the general public and hopefully to stimulate debate and discussion about reforms in a climate where regulatory burden and consumer protection issues are being re-examined. Its central aim is to provide a selection of collated views of stakeholders.
The material has been prepared in honesty and in good faith, expressing frank opinion and perceptions without malice about perceived systemic regulatory deficiencies and shortfalls, market conduct and poor stakeholder consultative processes, with disclaimers about any inadvertent factual or other inaccuracies. Perhaps I should go a step further and take a leaf from the wording of disclaimers adopted by CRA in their various reports4 and add that
“I shall have and accept no liability for any statements opinions information or matters (expressed or implied) arising out of contained in or derived from this document and its companion submissions and appendices) or any omissions from this document or any other written or oral communication transmitted or made available to any other party in relation to the subject matter of this document.”
The major case study material presented as one of the attachments has been deidentified but represents actual case examples of consumer detriments, some seen to be driven by existing policies on the brink being carried into the National Energy Law and Rules at Second Exposure Draft stage with significant implications for generic laws and for general and industry-specific consumer protections. Implementation is expected by September 2010 when the Bill is introduced into Parliament. In that particular matter I acted as a nominated third party representative and am able to testify through direct experience my endeavours to have the matter fairly and appropriately handled by numerous bodies fulfilling a public role
Other case studies referred to have also been deidentified and reproduced or discussed with the prior consent in principle by organizations original reporting and publishing. Every endeavour has been made to acknowledge as accurately as I can the numerous citations included from material accessible from the public domain.
As to perceptions and opinions expressed by a private citizen, and those referred to from public domain documents, these too are expressed in honesty, good faith and without malice or vexatious intent, but reflect genuine concerns about policy and regulatory provision and complaints and redress mechanisms.
Madeleine Kingston
CONTENTS
Covering letter5/6/7
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1-2
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Disclaimers
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3
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Contents
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4-9
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Annotated List of Appendices (revised section)
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10-12
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Annotated Glossary (new section)
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13-29
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Structure of Submission (new section)
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30-32
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Introduction (revised)
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33-42
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DISCUSSION OF THE IMPLICATIONS OF THE ARROW ASSET MANAGEMENT CASE (new section)
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43-48
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BRIEF COMMENT ON ENERGIZATION CONCEPTS8 (new section)
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49-52
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LACK OF CHOICE (new section)
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53
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BRIEF DISCSUSSION OF COMPROMISED COMPLAINTS AND REDRESS ISSUES (new section)
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54-57
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FURTHER COMMENT ON THE EXEMPTIONS PHILOSOPHY (new section)
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58-67
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SOME JURISDICTIONAL CONSIDERATIONS
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68-71
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3 OVERVIEW OF EXEMPTIONS
(AER Philosophical Position) (cover page)
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72
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3.1.3 EXEMPT SELLER AND CUSTOMER RELATED FACTORS
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‘whether selling energy is or will be a core part of the exempt seller’s business or incidental to that business’9
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‘whether the exempt seller’s circumstances demonstrate specific characteristics that may warrant exemption’
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‘whether the exempt seller is intending to profit from the arrangement’10
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‘whether the amount of energy likely to be sold by the exempt seller is significant in relation to national energy markets’11
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73-81
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‘the extent to which the imposition of conditions on an exemption, or to which the requirements of other laws, would allow appropriate obligations to govern the applicant’s behaviour rather than requiring the applicant to obtain a retailer authorization’12
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‘the likely cost of obtaining a retailer authorization and of complying with this law and the rules as a retailer compared to the likely benefits to the exempt customers of the exempt seller’
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‘the likely cost of obtaining a retailer authorization and of complying with this law and the rules as a retailer compared to the likely benefits to the exempt customers of the exempt seller13’
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whether the characteristics of the exempt customers or the circumstances in which energy is to be sold to them by the applicant are such as to warrant exemption’
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‘the extent to which the imposition of conditions on an exemption, or to which the requirements of other laws, would allow the exempt customers access to appropriate rights and protections rather than requiring the applicant to obtain a retailer authorization’14
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‘any other customer related matter the AER considers relevant.’ each of these principles and factors is discussed further in section 4.15
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FURTHER COMMENT ON PARAMETERS OF THE PROPOSED AER EXEMPT SELLING REGIME
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82-102
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Sale of Energy
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MCE/AER POLICY PRINCIPLES
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103-148
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Consistency in Framework
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‘REGULATORY ARRANGEMENTS FOR EXEMPT SELLERS SHOULD NOT UNNECESSARILY DIVERGE FROM THOSE APPLYING TO RETAILERS’
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56
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Choice
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57-64
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‘EXEMPT CUSTOMERS SHOULD, AS FAR AS PRACTICABLE, BE AFFORDED THE RIGHT TO A CHOICE OF RETAILER IN THE SAME WAY AS COMPARABLE RETAIL CUSTOMERS IN THE SAME JURISDICTION HAVE THAT RIGHT’
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Redress
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65-121
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‘EXEMPT CUSTOMERS SHOULD, AS FAR AS PRACTICABLE, NOT BE DENIED CUSTOMER PROTECTIONS AFFORDED TO RETAIL CUSTOMERS UNDER THIS LAW AND THE RULES’.16
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SELECTED TENANCY ISSUES
Tenancy Laws in Relation to Cost Recovery
Many additions especially to South Australia section see footnotes marked in purple
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149-178
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Some Owners’ Corporation Perspectives
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179-181
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Some Possible Solutions
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182
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SOME HEALTH ISSUES CONSUMER FOCUSED (no changes)
Discusses implications of encouraging the use of stationary water tanks
Some industry players appear to be in the water infrastructure field whilst relying on energy licences and rule of thumb legally untraceable methodologies in calculating alleged consumption of energy
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183-194
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SELECTED CONDUCT ISSUES
including Conduct (see separate deidentified case study and other case studies as appendices). See also case studies, especially conduct relating to misleading conduct regarding measuring and consumption monitoring, content of bills purporting to be supplying energy
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195-211
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SOME SPECIFIC COMPETITON ISSUES IMPACTING ON CONSUMER CHOICE AND PROTECTION
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212-238
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DISTRIBUTORS AND ASSET MANGEMENT OPERATORS
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239-259
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LIMITED DISCUSSION OF EMBEDDED GENERATION ISSUES AND RELATED CONSIDERATIONS FOR THOSE LIVING IN MULTI-TENANTED DWELLINGS RECEIVING NO ENERGY AT ALL17
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260-265
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METERING DATA SERVICE AND METROLOGY PARAMETERS
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266-272
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Context and Implications of the Proposed Rule Change
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Metering Data Service and Metrology Procedures
Discussion of some policy implications AEMC Rule Change Proposal ERC009218
As applicable to both electricity and gas in certain circumstances
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SOME OPERATING AND CAPITAL EXPENDITURE CONSIDERATIONS
Discussion of cost and selected competition implications
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273-289
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SELECTED DISCUSSION OF SOME METERING DATA PROVIDERS
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290-373
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SOME MONITORING ISSUES
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SELECTED CONTRACTUAL ISSUES
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374-403
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DEDICATED DISCUSSION OF IMPACT OF LEGAL METROLOGY ON CONTRACTUAL ISSUES
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404-422
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CONTRACTUAL MATTERS IN NECF CONTEXT
DISTRIBUTOR-RETAILER-CUSTOMER RELATIONSHIPS
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423-439
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SOME COMPARATIVE LAW CONSIDERATIONS
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440-459
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SOME SPECIFIC COMPETITON ISSUES
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FURTHER POLICY MATTERS IMPACTED
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OBSERVATIONS AND CITATIONS RE LEGISLATIVE DRAFTING
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460-470
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DISCUSSION OF NATIONAL ENERGY RETAIL LAW AND RULES OBJECTIVE
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471-485
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PERCEIVED FAILURE OF THE FRAMEWORK TO UPHOLD THE NATIONAL ENERGY RETAIL OBJECTIVE – SOME GENERAL COMMENTS
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Inconsistency
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Lack of Clarity
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Terminology in Objective and other clauses within the NECF2 package and implicitly endorsed provisions [NERL and NERC]
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486-489
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Application of the law national regulations and rules and selected comparative law considerations
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490-491
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Exclusion within the framework of whole segments of the Australian population from protection, including complaints and redress
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492-494
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Compromised wellbeing of community
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494-507
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SOME LIABILITY ISSUES
STATUTORY WARRANTIES AND GUARANTEES
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508-511
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LEGISLATIVE DRAFTING SOME OBSERVATIONS AND CITATIONS
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512-517
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COST-SMEARING IMPLICATIONS FOR THOSE FACING HARDSHIP
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518-519
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SOME COST RECOVERY PARAMETERS
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520-524
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SOME BROADER COMPETITION ISSUES, SPECIFIC AND GENERAL
There is some new and some duplicated material here from other sections to keep the issues together. Discusses some systemic issues
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525-608
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CONCLUDING REMARKS
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609-619
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LIST OF APPENDICES (further copy)
Appendices provided 1-15 as a composite document as previously submitted to the AER’s Exempt Selling Regime plus two further Appendices labeled 9A and 9B separately submitted
Request that the Main Submission of 623 pages be published as a single document, with the two groups of appendices separately posted to make acess and citation easier
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620
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LIST OF APPENDICES
Separate .pdf documents
Body Corporate Issues
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Major Case Study 1 Body Corporate Entity
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Appendix 1
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Tenant Issue
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Major Deidentified Case Study 219
Illustrating conflict over interpretation of contractual status, flawed policies seen to be driving unacceptable conduct, including alleged unconscionable conduct, misleading and deceptive conduct, harassment and coercion and the like. Poor redress options. Inadequate complaints handling
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Appendix 1
Appendix 2
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Analysis of the Gas Industry Act 2001 (Victoria) in relation to flawed interpretation of existence of any contract, deemed or otherwise20
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Appendix 3
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OTHER CASE STUDIES APPENDICES
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Tenants Issues
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Case Study per CUAC Winters v Buttigieg VCAT 2004
“Bulk hot water charges”; inadequate redress21
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Appendix 3
Appendix 4
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Case Studies courtesy Tenants Union Victoria – open submission to ESC Small Scale Licencing Review 2006
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Appendix 5
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Further comment Tenants Union Victoria open submission to ESC Small Scale Licencing Review 2006
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Appendix 6
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Reproduced comments Tenants Union Victoria open submission to ESC Small Scale Licencing Review Draft Decision 2007
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Appendix 7
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Reproduced extract NSW Government Tenants matter parks landlord prosecution Fair Trading Act
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Appendix 8
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