The ACCC has granted new interim authorisation for an expanded range of measures allowing participants in the gas and electricity markets to work together to help safeguard Australia’s energy supply during the COVID-19 pandemic.

On April 3, the ACCC granted interim authorisation to the Australian Energy Market Operator (AEMO), allowing energy market participants to co-operate on certain measures intended to maintain secure and reliable energy supplies while the pandemic continues.

AEMO had applied for approval for a broader range of conduct, which the ACCC required more time to consider.

The ACCC has now granted interim authorisation for an expanded set of measures, including allowing market participants to share information about the operation of critical facilities and any risks to their continued operation. AEMO is also able to notify the ACCC of further types of conduct it needs to undertake in order to respond to the COVID-19 pandemic.

The ACCC has expressly excluded any conduct relating to gas availability from this new interim authorisation because at this stage it is not persuaded about the need for coordinated conduct regarding gas.

Importantly, the new interim authorisation imposes the same strict conditions as the original interim authorisation, including that AEMO report regularly on any measures taken, a ban on any contracts that would outlast the ACCC’s authorisation period, and a requirement that parties to the authorisation continue to comply with other conditions of authorisation that apply to conduct occurring under this authorisation.

“It is essential that Australian businesses and households have access to reliable and efficient energy supplies during this difficult time. There is a clear need for co-operation between industry participants to prevent any disruption to these supplies,” ACCC Chair Rod Sims said.

“However, it is important to note that this co-operation cannot extend to making agreements about energy prices or to sharing confidential information about pricing or profits. It will also only take place during the COVID-19 pandemic.”

“We are going to closely monitor the effect of these arrangements and assess when it is appropriate for this authorisation to be revoked,” Mr Sims said.

The need for co-operation in the energy sector during the pandemic was raised at last month’s COAG Energy Council. COAG’s newly formed Energy Coordination Mechanism, made up of government and industry leaders, will be kept informed about measures taken to secure energy supplies. The ACCC will also be informed of such measures through this authorisation.

More information is available on the ACCC public register at Australian Energy Market Operator.

Background

AEMO manages electricity and gas markets and systems across Australia to ensure a reliable, secure, affordable and sustainable energy system. Its members include government and industry participants.

Electricity industry participants that might qualify for the interim authorisation include electricity generators, retailers, network service providers, metering service providers, and many other industry specific service providers. Gas industry participants that might qualify include producers, traders, retailers, storage providers and many other industry specific service providers.

Notes to editors

ACCC authorisation provides statutory protection from court action for conduct that might otherwise raise concerns under the competition provisions of the Competition and Consumer Act 2010.

Section 91 of the Act allows the ACCC to grant interim authorisation when it considers it is appropriate. This allows the parties to engage in the proposed conduct while the ACCC is considering the merits of the substantive application.

The ACCC may review a decision on interim authorisation at any time, including in response to feedback raised following interim authorisation.

Broadly, the ACCC may grant an authorisation when it is satisfied that the likely public benefit from the conduct outweighs any likely public detriment.

Petrol retailers should not use the current pandemic to further increase profits, which the latest ACCC petrol industry report shows have risen in recent years, and should pass on the full benefit of falling oil prices to motorists, the ACCC has said.

Weekly average international crude oil prices have decreased by around US$ 50 per barrel since the beginning of the year and this has largely flowed through to Australian wholesale petrol prices, which have decreased by around 50 cents per litre (cpl) in the same period.

Over the same period, seven-day rolling average petrol prices across the five largest cities (i.e. Sydney, Melbourne, Brisbane, Adelaide and Perth) have decreased by around 45 cpl. These cities have regular petrol price cycles, which makes it difficult to assess the exact flow through of falls in international crude oil and refined petrol prices in the short term.

“The drop in the crude oil price is good news for the Australian motorists. At this time the Australian economy needs all the assistance it can get, and lower world crude oil prices are one of the few positives from current world events,” ACCC Chair Rod Sims said.

“In the larger Australian capital cities, petrol retailers took too long to pass on the savings from the rapid drop in international oil prices, and this did not reflect well on them.”

In Hobart, Canberra and Darwin as well as many regional locations, retail prices have been much slower to come down and the extent of the falls has varied widely.

Fuel prices are generally higher in regional Australia due to a number of factors, including lower population and demand, meaning there are fewer petrol stations, which often leads to less competition. There are also higher costs for transport and storage of fuel, and less convenience sales which can support the operation costs of petrol retailers when fuel prices are low.

Price changes in regional centres can lag up to six weeks behind changes in the larger capital cities, because the turnover of stock is generally lower in the country. The reduction in demand for petrol due to current travel restrictions may have further exacerbated the lag.

“We have previously found that the lack of vigorous and effective competition in some regional locations was a major reason for higher prices in those locations,” Mr Sims said.

“Where there is competition, you tend to see lower prices. Giving your business to outlets that are pricing competitively sends a strong message to those that have high prices that they will lose your business. We recommend motorists compare prices on fuel price apps and websites, such as MotorMouth and the government schemes in NSW, WA and the NT, which also provide information on retail prices in regional locations.”

“Especially at this difficult time, retailers must not take advantage of the situation to increase their profits, but should pass on savings to motorists,” Mr Sims said.

“The ACCC’s role is to monitor the market closely, and we will continue to do this, particularly to keep the pressure on the petrol retailers at this time.”

New ACCC report shows retail profits increased over time

The latest ACCC petrol industry report reports on the revenues, costs and profits in the Australian petroleum industry up to June 2018. It includes financial results for the retail and wholesale sectors as well as for refining and across the total downstream industry.

Retail sector net profits across all fuel products, convenience store and non-fuel services were $616 million in 2017-18, the last year covered by this report.

The sector generated a record high $333 million in net profits on petrol products – regular unleaded petrol (RULP), premium unleaded petrol (PULP) and ethanol blended petrol (EBP). This equates to a record net profit of 3.0 cpl on petrol products, which was almost double the average in the period 2008-09 to 2013-14 of 1.6 cpl.

About 60 per cent of petrol net profits ($199 million) were made on premium fuels, which only accounted for about a third of petrol sales by volume.

“Much of the increase in net profits on petrol products was driven by sales of PULP, which has a significantly higher profit margin for retailers,” Mr Sims said.

Net profits on PULP 95 and PULP 98 were 5.8 cpl and 5.9 cpl respectively, while net profits on regular unleaded were 1.5 cpl in 2017-18.

PULP 95 and PULP 98 have become more expensive relative to the retail price of RULP. The annual average price differential between RULP and PULP 98, for instance, increased to 20.4 cpl in 2017-18, an increase of 3.9 cpl since 2009-10. Profits were also influenced by higher sales volumes of PULP (particularly PULP 98).

Retailers also earn substantial profits from convenience store sales. Convenience and other non-fuel sales contributed around 37 per cent of total retail sector net profits (or $226 million) in 2017-18, illustrating their importance to petrol retailers’ businesses as the profit margins on these products are significant.

“Petrol stations make most of their profits from convenience sales and premium fuel. The average net profits on regular unleaded, at about 1.5 cpl are only a small part of the price motorists pay,” Mr Sims said.

The annual average retail price of RULP in the five largest cities in 2017-18 was 134.5 cpl.

“Drivers who have the option, can save money by resisting the temptation of convenience foods at petrol stations and using regular unleaded petrol, although motorists should follow their car manufacturers’ advice,” Mr Sims said.

Net profits in 2017-18 were stronger for refining and across the total downstream industry

The number of refineries halved from eight in 2002-03 to four in 2017-18, significantly rationalising operations. The financial performance of the refining sector fluctuated over the same period.

Refining net profits however recovered following several years of net losses after the Global Financial Crisis. Net profits reached $845 million in 2017-18, the highest since 2007-08. Overall profits for the total supply sector (which comprises refining, importing and transactions between refiners) were $1.19 billion in 2017-18.

Wholesale sector net profits were about $976 million in 2017-18 across all products and services. They have fluctuated over time but have been relatively consistent since 2008-09.

Net profits for the total downstream industry across all products and services were $2.78 billion (or 2.9 cpl), the highest recorded since 2007-08 and more than double the figure recorded for 2013-14 ($1.24 billion, or 1.4 cpl).

For petrol products, total industry net profits were $1.44 billion in 2017-18, or 4.2 cpl, the highest recorded by the ACCC. They were around double the profits on petrol products across the industry in 2013-14 ($723 million, or 2.0 cpl).

Notes to editors

On 16 December 2019, the Treasurer issued a new direction to the ACCC to monitor the prices, costs and profits relating to the supply of petroleum products in the petroleum industry in Australia. As part of this direction, the ACCC produces industry reports that focus on particular aspects of consumer interest in the fuel market in relation to prices, costs and profits.

This is the first industry report under the new direction. It reports on the revenues, costs and profits for the total downstream petroleum industry as well as for the following industry sectors: retail, wholesale, and total supply (which comprises refining, importing and transactions between refiners).

The focus of this report is to provide transparency around the financial performance and the profitability of the downstream petroleum industry. It presents results from analysis of this data.

The ACCC analysed the financial data of 11 companies:

• refiner–wholesalers – BP, Caltex, Mobil and Viva Energy
• independent wholesalers – Liberty, Puma Energy and United
• supermarket chains – Coles Express and Woolworths
• large independent retailers – 7-Eleven and On The Run.

The ACCC previously reported on financial results to the end of 2013-14.

This report includes data from 2002-03 to 2017-18 (the latest data analysed), but excludes results for 2014-15 and 2015-16, which was a period when the ACCC conducted other financial analysis of the industry as part of its regional market study reports.

All results in this report are in real terms in 2017-18 dollars.

The ACCC today announced that Scott Gregson would assume the role of acting Chief Operating Officer effective from Monday 27 April 2020 following the retirement of Chief Operating Officer Rayne de Gruchy.

Ms de Gruchy joined the ACCC in 2010 and commenced in her current role in 2014, driving and shaping the ACCC’s culture to enhance its capabilities, performance and impact. She had announced her departure earlier this year and assisted Mr Gregson in the transition.

Ms de Gruchy was awarded the Public Service Medal in 2003 and was appointed a Member of the Order of Australia in 2008 for her contribution to public administration.

Before joining the ACCC, she led the Australian Government Solicitor as its inaugural Chief Executive Officer from 1999 to 2010, creating a successful government business enterprise in Australian Government ownership.

A lawyer by profession, Ms de Gruchy also held other senior executive positions in the public sector, been a non-executive director of a public company and practised law as a banking and finance partner of the law firm now known as Herbert Smith Freehills.

“We will miss Rayne’s calm and measured guidance and advice, and wish her and her family well in her much deserved retirement,” Mr Sims said.

“We thank Rayne for her outstanding career of public service and the pivotal role she has played in her time at the ACCC. Indeed, the ACCC owes much of its governance, culture, flexible working practices and success to her,” ACCC Chair Rod Sims said.

Mr Gregson spent most of his career in enforcement roles at the ACCC. His most recent role was as executive general manager of its Merger and Authorisation Review Division.

Recruitment for the permanent appointment for the COO position is expected to go ahead later in the year.

Members of the Minerals Council of Australia (MCA) and other mining associations will be able to work together to manage critical services and supplies during the COVID 19 pandemic, after the ACCC granted interim authorisation for the arrangements today.

The COVID-19 pandemic has led to shortages and supply chain disruptions for some critical services and supplies used by the mining sector.

The interim authorisation will help ensure Australia’s mining industry continues to operate safely and efficiently, by allowing members that have been notified to the ACCC to co-ordinate on the sourcing, purchase and distribution of crucial supplies and services such as health and safety equipment, logistics, equipment maintenance and consumables like fuel and explosives.

“The COVID-19 pandemic has had a dramatic impact on global manufacturing and supply chains, which has created challenges for those sectors, such as mining, that are still operating and still in need of crucial equipment and services,” ACCC Chair Rod Sims said.

“To help address these challenges, we have authorised mining companies to co-ordinate on a limited range of activities to help ensure they can continue to operate safely and efficiently.”

The authorisation only applies to activities relating to these critical services and supplies. It will, for example, allow companies to share inventories and manage demand for these critical services and supplies, coordinate deliveries, and share details of potential suppliers of personal protective equipment (PPE), such as N95 masks needed to work in underground mines.

“Importantly, the approval does not allow mining companies to coordinate on the terms, conditions or prices in supply contracts,” Mr Sims said.

“We are going to closely monitor the effect of these arrangements and when it is appropriate for this authorisation to be revoked.”

The authorisation applies to members of the MCA and seven other mining associations. The ACCC must be notified in advance of any arrangements made under the authorisation.

The ACCC will now seek feedback on interim authorisation, as well as the application for final authorisation, which is sought for a period of 12 months from the date of authorisation. More information, including the ACCC’s statement of reasons, a list of associations included, and the supplies and services covered by the authorisation, is available at Minerals Council of Australia.

Background

The Minerals Council of Australia’s membership includes many of Australia’s biggest mining companies. It has 51 full member companies and 29 associate member companies including mining service providers, state chambers, energy and transport companies and consultancy firms.

Notes to editors

ACCC authorisation provides statutory protection from court action for conduct that might otherwise raise concerns under the competition provisions of the Competition and Consumer Act 2010.

Section 91 of the Act allows the ACCC to grant interim authorisation when it considers it is appropriate. This allows the parties to engage in the proposed conduct while the ACCC is considering the merits of the substantive application.

The ACCC may review a decision on interim authorisation at any time, including in response to feedback raised following interim authorisation.

Broadly, the ACCC may grant a final authorisation when it is satisfied that the likely public benefit from the conduct outweighs any likely public detriment.

The ACCC has granted conditional interim authorisation to allow the Australian Energy Council and wholesale and retail energy businesses to co-operate to provide financial relief to residential and business customers who may be financially impacted by the COVID-19 pandemic.

This interim authorisation allows business in the electricity and gas markets to hold discussions, share information, and enter into arrangements for the purpose of providing financial relief and other measures to small, medium and large businesses, and to expand support under existing hardship programs for residential customers.

“We know the COVID-19 pandemic is having a significant economic impact on consumers and businesses in Australia, which is why we have granted this interim authorisation,” ACCC Chair Rod Sims said.  

“Energy is an essential service and this is an important opportunity to allow energy market participants to support consumers and businesses through the pandemic.”

Importantly, authorisation is only granted on the condition that any agreements between energy retailers are not materially inconsistent with the relevant applicable principles in the Australian Energy Regulator (AER) Statement of Expectations of energy businesses: Protecting consumers and the market during COVID-19.

The Statement of Expectations sets out ten principles the AER expects businesses to adhere to during the COVID-19 pandemic to ensure the continued safe and reliable supply of energy to homes and businesses. This includes expectations about payment plans and hardship arrangements, no disconnections and deferring referrals to debt collection agencies for recovery actions.

“The AER’s Statement of Expectations provides important principles that should be adopted by energy retailers in their dealings with customers during the COVID19 pandemic, and we expect  any conduct under this authorisation to meet or exceed the expectations set out in these principles” Mr Sims said.

The AEC must also regularly update the ACCC and the AER about the information shared and the decisions made by retailers as part of the authorisation.

The ACCC and AER will also be invited to attend any meeting where the energy retailers discuss or agree on financial relief arrangements. This will provide important transparency and oversight of these discussions.

“We believe that allowing the AEC and energy businesses to work together will enable customer relief to be provided more quickly and efficiently than it would if the parties were to work on these measures independently,” Mr Sims said. 

“We will closely monitor the effect of these arrangements and when it is appropriate for this authorisation to be revoked.”

Having granted interim authorisation for the arrangements, the ACCC will now seek feedback on the application for final authorisation which is sought for a period of 12 months from the date of authorisation.

More information, including the ACCC’s interim authorisation decision, is available on the ACCC public register.

Background

The Australian Energy Council is an industry organisation representing 23 major electricity and downstream natural gas businesses operating in the wholesale and retail energy markets.

Notes to editors

ACCC authorisation provides statutory protection from court action for conduct that might otherwise raise concerns under the competition provisions of the Competition and Consumer Act 2010.

Section 91 of the Act allows the ACCC to grant interim authorisation when it considers it is appropriate. This allows the parties to engage in the proposed conduct while the ACCC is considering the merits of the substantive application.

The ACCC may review a decision on interim authorisation at any time, including in response to feedback following interim authorisation.

Broadly, the ACCC may grant a final authorisation when it is satisfied that the likely public benefit from the conduct outweighs any likely public detriment.

The ACCC and the Office of the Australian Information Commissioner (OAIC) today jointly released the Compliance and Enforcement Policy for the Consumer Data Right.

The Policy outlines the approach that the ACCC and the OAIC have adopted to encourage compliance with, and address breaches of, the Consumer Data Right regulatory framework. The Policy has been developed following consultation with current and future data holders and recipients.

‘‘The Consumer Data Right is an important reform that will give consumers greater access to and control over their data,” ACCC Commissioner Sarah Court said.

“With this important reform come significant and serious safeguards.”

“It is the responsibility of each Consumer Data Right participant to be fully aware of their regulatory obligations or face scrutiny by the ACCC and the OAIC,” Ms Court said.

“Today’s release of the Compliance and Enforcement Policy helps clarify these obligations as people prepare to participate in the Consumer Data Right from July 2020.”

The ACCC and OAIC have adopted a strategic risk-based approach to compliance and enforcement, which focuses on building consumer confidence in the security and integrity of the Consumer Data Right system.

“My office and the ACCC will work in partnership to monitor and actively enforce participants’ compliance with their regulatory obligations, including the privacy safeguards,” Australian Information Commissioner and Privacy Commissioner Angelene Falk said.

“A strong regulatory framework is in place to protect privacy and build public confidence in the Consumer Data Right, and the Compliance and Enforcement Policy released today provides increased certainty about how we will uphold these consumer protections.”

“Economic reforms like the Consumer Data Right which build consumer confidence in the use of their personal information and encourage innovation will be critical to our recovery after the COVID-19 outbreak,” Commissioner Falk said.

The ACCC and OAIC will regularly review the Compliance and Enforcement Policy so that it continues to reflect best practice regulation and evolves with the Consumer Data Right regime.

A copy of the Compliance and Enforcement Policy is available online.

This media release was jointly issued with the Office of the Australian Information Commissioner.

Background

Principles

The ACCC and OAIC will adopt a strategic risk-based approach to compliance and enforcement which recognises the joint regulatory model and a requirement to deal with breaches of the legislation efficiently and effectively. Both agencies will act with integrity, professionalism and in the public interest, guided by the principles of accountability, efficiency, fairness, proportionality and transparency.

Compliance monitoring tools

The ACCC and OAIC will use a wide range of information sources and monitoring tools to assess compliance and identify potential breaches of the Consumer Data Right legislation (including Privacy Safeguards), Consumer Data Right Rules and Data Standards. These sources and tools will include:

• stakeholder intelligence and complaints
• business reporting, which will include summaries of Consumer Data Right complaint data
• audits and assessments
• information requests and compulsory notices.

Enforcement options

There are a range of enforcement options available to respond to and resolve breaches of the Consumer Data Right legislation (including the Privacy Safeguards), Consumer Data Right Rules and Data Standards. These include:

• administrative resolutions, whereby a business provides a voluntary written commitment to address a non-compliance issue
• infringement notices and court-enforceable undertakings
• suspension or revocation of accreditation by the ACCC (as the accreditor)
• determination and declarations, using the OAIC’s power to make a determination following an investigation, to either dismiss or substantiate a breach of a Privacy Safeguard or Rule relating to the privacy or confidentiality of Consumer Data Right data
• court proceedings (which may result in penalties, injunctions and other orders).