Australian Energy Regulator v Australian Competition Tribunal (No 2) [2017] FCAFC 79

Australian Energy Regulator v Australian Competition Tribunal (No 3) [2017] FCAFC 80


In accordance with the practice of the Court in some cases that have attracted publicity, particularly in the case of lengthy reasons for judgment, the Court has prepared a summary of the judgments. The only authoritative statement of the Court’s reasons is that contained in the published reasons for judgment. The summary has no legal status as part of, or an explanation of, the reasons for judgment themselves. What follows is such a summary.

Before the Court were five applications by the Australian Energy Regulator (AER) for judicial review of determinations of the Australian Competition Tribunal (Tribunal).

The Tribunal had set aside the AER’s Final Decisions and remitted the matter to the AER to make the decisions again in accordance with certain directions.

The AER’s judicial review challenge to the Tribunal’s determinations was directed principally to the following core concerns:

(a)    The Tribunal had failed to undertake its review function lawfully by failing to properly construe and apply the grounds of review under s 71C of the National Electricity Law and s 246 of the National Gas Law. The AER contended that errors of this kind led the Tribunal to carry out reviews of a kind that were not authorised by the legislation.

(b)    In one instance, the AER contended, the Tribunal purported to review a decision of a type that did not and could not fall within its jurisdiction. This related only to the fifth matter involving Jemena Gas Networks and the National Gas Law and the National Gas Rules and is the subject of the second the judgment published today.

(c)    The Tribunal allowed the distribution network service providers and the covered pipeline service provider to raise, in relation to whether a ground of review existed, matters that were not raised and maintained by the service providers in submissions to the AER before the reviewable regulatory decisions were made, thus contravening the constraints imposed by s 71O(2) of the National Electricity Law and s 258(3) of the National Gas Law.

(d)    The Tribunal erred in its construction of new provisions in the National Electricity Rules and the National Gas Rules relating to the determination of the rate of return on capital, the value of imputation credits (gamma) and the operating expenditure criteria.

(e)    The Tribunal made other reviewable errors in making its decision, including adopting reasoning that was irrational, unreasonable and/or uncertain.

The Court has upheld the applications for judicial review in respect of the Tribunal’s construction of the Rules in relation to the value of imputation credits (gamma). The Court has otherwise dismissed the AER’s applications.

The Court has directed the parties to consult and, within 21 days, file orders in an agreed form to give effect to the reasons of the Court. Failing agreement, the parties are to file, within the same period, the orders for which they contend. The proposed orders are to include orders as to costs.

The published reasons for judgment and the summary will be available on the Internet at www.fedcourt.gov.au

Justice Besanko

Justice Yates

Justice Robertson

24 May 2017