Clifford Chance
Divestment Powers for the Australian Electricity Market - Is Its Bark Worse Than Its Bite?
30 October 2019
The Treasury Laws Amendment (Prohibiting Energy Market Misconduct) Bill 2019 ("2019 Bill") was (re)introduced into Parliament on 18 September 2019. If passed, the 2019 Bill will amend the Competition and Consumer Act 2010 ("CCA") and (amongst other things) introduce a divestiture power to force electricity wholesalers to sell a business or asset if they engage in certain pricing breaches. Divestiture powers in this context are unprecedented in Australia but they exist in other competition law jurisdictions including the UK.
This Alert notes that the new divestiture powers are relatively limited and in practice may be unavailable other than for repeat offenders where the Australian Competition and Consumer Commission ("ACCC") has already engaged in the lesser forms of punishment available. This Alert recommends that participants in the electricity market undertake regular compliance training if the Bill is passed to ensure their conduct does not fall within the scope of the new prohibitions.
