Competition and Consumer Act - Australia

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or that the appointment had ceased to have effect or the occasion for him or her to act under the appointment had passed.

      Part IIIAA The Australian Energy Regulator (AER)

      Division 1

      Preliminary

      44AB Definitions

      In this Part, unless the contrary intention appears:

      Australian Energy Market Agreement means the agreement, as amended from time to time:

      (a) that relates to energy; and

      (b) that is between the Commonwealth, all of the States, the Australian Capital Territory and the Northern Territory; and

      (c) that is first made in 2004; and

      (d) that agrees to the establishment of the AER and the AEMC.

      Commonwealth AER member means the member referred to in section 44AM.

      full-time AER member means an AER member appointed on a full-time basis.

      part-time AER member means an AER member appointed on a part-time basis.

      44AC This Part binds the Crown

      This Part binds the Crown in each of its capacities.

      44AD Extra-territorial operation

      It is the intention of the Parliament that the operation of this Part should, as far as possible, include operation in relation to the following:

      (a) things situated in or outside Australia;

      (b) acts, transactions and matters done, entered into or occurring in or outside Australia;

      (c) things, acts, transactions and matters (wherever situated, done, entered into or occurring) that would, apart from this Act, be governed or otherwise affected by the law of a State, a Territory or a foreign country.

      Division 2

      Establishment of the AER

      44AE Establishment of the AER

      (1) The Australian Energy Regulator (the AER) is established by this section.

      (2) The AER:

      (a) is a body corporate with perpetual succession; and

      (b) must have a common seal; and

      (c) may acquire, hold and dispose of real and personal property; and

      (d) may sue and be sued in its corporate name.

      44AF AER to hold money and property on behalf of the Commonwealth

      The AER holds any money or property for and on behalf of the Commonwealth.

      44AG Constitution of the AER

      The AER consists of:

      (a) a Commonwealth AER member, appointed in accordance with section 44AM; and

      (b) 2 State/Territory AER members, appointed in accordance with section 44AP.

      Division 3

      Functions and powers of the AER

      44AH Commonwealth functions

      The AER has any functions:

      (a) conferred under a law of the Commonwealth; or

      (b) prescribed by regulations made under this Act.

      Note: The AER may have functions under the Australian Energy Market Act 2004.

      44AI Commonwealth consent to conferral of functions etc. on AER

      (1) A State/Territory energy law may confer functions or powers, or impose duties, on the AER for the purposes of that law.

      Note: Section 44AK sets out when such a law imposes a duty on the AER.

      (2) Subsection (1) does not authorise the conferral of a function or power, or the imposition of a duty, by a State/Territory energy law to the extent to which:

      (a) the conferral or imposition, or the authorisation, would contravene any constitutional doctrines restricting the duties that may be imposed on the AER; or

      (b) the authorisation would otherwise exceed the legislative power of the Commonwealth.

      (3) The AER cannot perform a duty or function, or exercise a power, under a State/Territory energy law unless the conferral of the function or power, or the imposition of the duty, is in accordance with the Australian Energy Market Agreement, or any other relevant agreement between the Commonwealth and the State or Territory concerned.

      44AJ How duty is imposed

      Application

      (1) This section applies if a State/Territory energy law purports to impose a duty on the AER.

      Note: Section 44AK sets out when such a law imposes a duty on the AER.

      State or Territory legislative power sufficient to support duty

      (2) The duty is taken not to be imposed by this Part (or any other law of the Commonwealth) to the extent to which:

      (a) imposing the duty is within the legislative powers of the State or Territory concerned; and

      (b) imposing the duty by the law of the State or Territory is consistent with the constitutional doctrines restricting the duties that may be imposed on the AER.

      Note: If this subsection applies, the duty will be taken to be imposed by force of the law of the State or Territory (the Commonwealth having consented under section 44AI to the imposition of the duty by that law).

      Commonwealth legislative power sufficient to support duty but State or Territory legislative powers are not

      (3) If, to ensure the validity of the purported imposition of the duty, it is necessary that the duty be imposed by a law of the Commonwealth (rather than by the law of the State or Territory), the duty is taken to be imposed by this Part to the extent necessary to ensure that validity.

      (4) If, because of subsection (3), this Part is taken to impose the duty, it is the intention of the Parliament to rely on all powers available to it under the Constitution to support the imposition of the duty by this Part.

      (5) The duty is taken to be imposed by this Part in accordance with subsection (3) only to the extent to which imposing the duty:

      (a) is within the legislative powers of the Commonwealth; and

      (b) is consistent with the constitutional doctrines restricting the duties that may be imposed on the AER.

      (6) Subsections (1) to (5) do not limit section 44AI.

      44AK When a State/Territory energy law imposes a duty

      For the purposes of sections 44AI and 44AJ, a State/Territory energy law imposes a duty on the AER if:

      (a) the law confers a function or power on the AER; and

      (b) the circumstances in which the function or power is conferred give rise to an obligation on the AER to perform the function or to exercise the power.

      44AL Powers of the AER

      The AER has power to do all things necessary or convenient to be done for or in connection with the performance of its functions.

      Note: State and Territory laws may also confer powers on the AER in respect

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