Part XIC of the Trade Practices Act 1974 enables the ACCC to ‘declare’ telecommunications services. Upon declaration, standard access obligations apply.
If a service is declared, the carrier and carriage service provider that provides the declared service must meet the 'standard access obligations' prescribed under the Act. The ACCC has the ability to vary or revoke declarations, but with the exception of minor changes, must hold a public inquiry ahead of such changes.
The Trade Practices Act enables carriers to apply for exemptions from the standard access obligations that apply to a declared service. The ACCC can only grant exemptions where they promote the long term interests of end-users.
Australian Competition Tribunal issues PSTN OA exemption orders
On 9 September 2009 the Australian Competition Tribunal issued orders exempting Telstra from its obligations to supply the public switch telephone network originating access (PSTN OA). The orders vary those granted by the ACCC in October 2008.
Under the tribunal’s orders, whether an exemption will apply in a particular area will depend on a number of factors, including the number of Telstra's competitors already using the unconnected local loop service (ULLS) in that area as well as their market share. Twice yearly the ACCC will publish on its website a list of geographic areas where the exemptions will apply. No exemptions will come into effect before the end of next year.
The ACCC is able to arbitrate telecommunications access disputes and make a final binding determination to resolve a dispute. Arbitration hearings are private and the ACCC generally does not make any public comment on disputes except to announce when a dispute has been notified.
New access disputes
No new access disputes were notified to the ACCC during September 2009.
On 15 September 2009 the Minister for Broadband, Communications and Digital Economy announced reforms to existing telecommunications regulation in the interest of Australian consumers and businesses. The proposed reforms are intended to:
address Telstra’s high level of integration to promote greater competition and consumer benefits
streamline and simplify the competition regime to provide more certain and quicker outcomes for telecommunications companies
strengthen consumer safeguards to ensure services standards are maintained at a high level
remove redundant and inefficient regulatory red-tape.
The government announced it will strengthen consumer safeguards, including the universal service obligation, customer service guarantee and the priority assistance arrangements, to ensure consumers are protected and service standards are maintained at a high level.
On 1 September 2009 ACCC Commissioner Ed Willett delivered a briefing speech, Communications regulation in a changing environment, at a conference held in Sydney for Telstra Public Policy and Communications Group.
Publication of proposed amendments to AER’s service target performance incentive scheme for electricity distribution businesses
On 21 September 2009 the AER released for consultation proposed amendments to its service target performance incentive scheme to apply to electricity distribution networks.
The proposed amendments are designed to improve the clarity, effectiveness and operation of the scheme, and to increase its flexibility, most notably with respect to determining the major event day boundary. The amended scheme and an explanatory statement detailing the amendments are available on the AER website. Interested parties are invited to lodge submissions in response to the proposed amendments by 30 October 2009.
Regulatory proposals from Qld and SA electricity DNSPs
The AER is required under chapter 6 of the National Electricity Rules (NER) to make a distribution determination for the Queensland (Energex and Ergon Energy) and the South Australian (ETSA Utilities) electricity distribution network service providers. The distribution determination will establish a revenue requirement for each DNSP for the 2010–15 regulatory control period.
The AER invited interested parties to make written submissions on each DNSP's regulatory proposal and the AER's proposed negotiated distribution services criteria. Submissions closed on 28 August 2009.
The AER is currently developing draft decisions that are expected to be published at the end of November 2009 followed by final decisions in April 2010.
Access arrangement revision review process for Jemena’s NSW gas distribution network
The AER is required under r. 59 of the National Gas Rules (NGR) to make an access arrangement draft decision for Jemena’s New South Wales gas distribution network. An access arrangement draft decision indicates whether the AER is prepared to approve the access arrangement proposal as submitted and, if not, the nature of the amendments required to make the proposal acceptable to the AER.
Jemena submitted its access arrangement proposal for its New South Wales gas distribution network on 25 August 2009.
The AER published Jemena’s proposal and access arrangement information on 15 September 2009 and hosted a public forum on 23 September 2009 in Sydney at which Jemena outlined the key aspects of its access arrangement proposal.
Interested parties are invited to make written submissions on the proposal by 10 November 2009. The access arrangement proposal is available on the AER website.
Publication of final rebidding and technical parameters guideline
The AER published the final Rebidding and technical parameters guideline on 25 September 2009.
The guideline outlines the detail that must be contained in a rebid reason submitted to the Australian Energy Market Operator (AEMO). In addition, it covers several related areas associated with the bidding and rebidding of technical parameters.
The AER recognises that compliance with the new guideline will require a change to the business practices of many participants. Following consultation with the National Generators Forum, the AER has determined that the new guideline will be effective from 1 December 2009.
On 1 December 2009 the guideline will replace Rebidding: Guidelines on the disclosure of information, published by the National Electricity Code Administrator in July 2001.
Infringement notices issued—Babcock and Brown Power
On 14 September 2009 the AER issued two infringement notices on Babcock and Brown Power (BBP) generators for putting the safety and security of the power system at risk.
The AER has alleged that BBP breached the NER twice and has issued an infringement notice for each breach, totalling $40 000. Both breaches related to alleged failures to follow generation output instructions from AEMO.
On 11 February 2009 AEMO issued several instructions to Playford (a South Australian BBP power station) to reduce its output. However, despite these repeated instructions, Playford continued to generate electricity above the dispatch targets for approximately one hour.
In addition, on 17 March 2009, despite having no instruction to start, Braemar power station unit 1 (in Queensland) began generation at 12.47 pm.
Each alleged breach carries an infringement penalty of $20 000. If BBP pays the $40 000, the matter will be closed and the AER will release an investigation report.
On 29 September 2009 the ACCC made decisions under Part IIIA of the Trade Practices Act to accept three access undertakings submitted by AusBulk Limited, Co-operative Bulk Handling Limited (CBH) and GrainCorp Operations Limited. The undertakings oblige the bulk handlers to provide access to bulk wheat exporters at grain export terminals operated by the bulk handlers at various locations around Australia.
The undertakings were submitted by the bulk handlers to satisfy requirements in the federal Wheat Export Marketing Act 2008, which replaced the 'single desk' marketing arrangements for bulk wheat exports with a new regime designed to introduce competition. Essentially the WEMA requires that parties seeking to hold accreditation to export bulk wheat who also provide 'port terminal services' for the export of wheat must pass an 'access test' to ensure access to those services. After 1 October 2009, the test could be satisfied if a Part IIIA access undertaking relating to the provision of port terminal services were in place.
The bulk handlers initially submitted proposed undertakings in April 2009; the ACCC issued a draft decision on 6 August 2009 and a further draft decision on 23 September 2009. On 24 September 2009 the bulk handlers formally withdrew their undertakings and resubmitted substantially revised versions addressing issues the ACCC had identified with the earlier version. Under Part IIIA, the ACCC considered it was appropriate to accept the revised undertakings.
On 10 September the ACCC released its position paper on the development of its water trading rules advice to the Murray–Darling Basin Authority (MDBA).
The MDBA is responsible for preparing the new strategic plan for the integrated and sustainable management of water resources in the Murray–Darling Basin (the 'Basin Plan'), which will contain water trading rules. In preparing these rules, the MDBA is required to obtain and have regard to advice from the ACCC.
The position paper sets out the ACCC’s preliminary positions on a range of matters relating to water trading. These matters include restrictions on trade, administrative processes and information requirements for a functional water market.
The position paper is the second step in developing the ACCC’s advice to the MDBA on the water trading rules. The ACCC invites interested parties to make submissions on the matters raised in the paper. Submissions are due by Friday, 23 October 2009.
Water charge (infrastructure) rules—request for further advice and rules
On 14 September 2009 the ACCC received a letter from the Minister for Climate Change and Water requesting advice and draft rules on the accreditation of state regulators by the ACCC to approve or determine charges under the water charge (infrastructure) rules. The ACCC's advice will be provided to the minister by 28 February 2010.
The ACCC will release its draft advice and draft rules for public consultation in November 2009.
ACCC proposed monitoring regime—submissions released
On 7 August 2009 the ACCC released a paper seeking submissions on a proposed monitoring regime of the water charge rules and water market rules. This paper sets out details of the proposed monitoring regime, in particular the information to be provided by reporting operators. The ACCC requested that submissions be provided no later than 14 September 2009.
On 16 September the ACCC released on its website submissions received from interested parties. To date the ACCC has received 11 submissions.
