Purpose

The Media Code of Conduct was developed to balance fairness to individuals, companies and businesses involved in AER compliance and enforcement action with informing the public about the AER’s compliance and enforcement work.

The AER’s compliance and enforcement work includes actions the AER takes to enforce national energy laws – the National Electricity Law and Rules, National Gas Law and Rules and National Energy Retail Law and Rules, and their associated Regulations and Guidelines.

Principles

The AER’s Compliance and Enforcement team enforces compliance with national energy laws (electricity, gas, and retail) to protect consumers and ensure market integrity.

Community confidence in the AER is of vital importance to the proper performance of its role. Such confidence includes consumers, businesses and government.

The AER has developed this Code of Conduct to balance fairness to individuals, companies and businesses involved in AER investigation and enforcement action with informing the public about the AER’s enforcement work and being transparent about what action the AER is taking and why.

Informing the public about our compliance and enforcement work is an important part of our role. It:

  • promotes confidence in our energy system because consumers and business can see the regulatory framework working for them through the action we take against those who we believe, on reasonable grounds, are breaking the national energy laws 
  • deters companies, businesses and individuals from engaging in conduct that would
    contravene the national energy laws 
  • promotes compliance with national energy laws by informing the public about the standards required by those laws and the consequences of failing to meet those standards.

The AER engages in a wide range of communication activities to promote understanding of the law and to inform the public of its activities.

This includes engaging with the public through a wide range of media channels, publishing information on the AER’s websites, giving speeches, presentations and seminars, and publishing reports and guidance materials.

Engagement with the media is a particularly important element of the AER’s wider communications strategy. It enables us to communicate with and provide information to a broad public audience who may otherwise be unaware of the national energy laws or the AER’s work. Public comment plays an important role in achieving compliance with the national energy laws, and media communication is one of the most effective ways of educating consumers and businesses about their rights and obligations under the energy rules and laws.

Broad communication about the AER’s activities provides transparency about our actions for which we are accountable to the public and to the government. In so doing, the AER will take a balanced and objective approach to ensure fairness and overall confidence in the AER.

Limits on informing the public of our activities

The use of the media by the AER should at all times promote confidence in the AER’s compliance and enforcement activities. There are a range of factors which limit our ability to comment on referrals and investigations. These include:

  • fairness to individuals, companies and businesses being investigated for alleged contraventions of the national energy laws
  • in the case of proceedings, respecting the court or tribunal’s processes to ensure a fair hearing of the issues in contention 
  • legislative restrictions (certain material cannot be disclosed)
  • the need to safeguard confidential or sensitive information (such as commercial-inconfidence or market sensitive information or the existence or details of witnesses)
  • the potential to jeopardise investigations through the untimely release of information
  • privacy legislation and guidelines.

Code of Conduct

Subject to the protocols and exceptions set out in this document, in relation to the AER’s compliance and enforcement activities, the AER will:

  1. refrain from commenting on referrals it has received and its investigations
  2. publicise the commencement of court or tribunal proceedings
  3. limit public comment during proceedings to matters of fact
  4. report and comment on the outcome of proceedings, or other formal resolution of investigations, in a factually accurate and balanced manner which is consistent with the objectives of ensuring public understanding of the outcome and promoting compliance with the national energy laws.

Investigations

The AER does not comment on its compliance and enforcement referrals or investigations unless it is in the public interest. This is because of the potential detrimental effect that public commentary can have on the reputation of the parties that have been referred to the AER and/or are under investigation.

However, in some circumstances it may be in the public interest to provide comment on a referral or investigation. The AER will take a range of factors into account when considering whether making a statement about a referral or investigation is in the public interest and outweighs the possible detrimental effect of public commentary. These include whether:

  • information about a referral or investigation is already in the public domain
  • the AER has been publicly called upon to respond to an issue or undertake an investigation
  • comment is necessary in order to maintain public confidence that the AER is fulfilling its responsibility by investigating issues of public concern
  • comment is necessary for investigation purposes
  • making a statement could prevent widespread misconduct or allay public concern.

In considering these factors, the AER will take a balanced and objective approach and will limit public comment to confirming the existence of a referral or investigation and, where necessary, seeking information relevant to that referral or investigation.

In limited circumstances where the AER confirms the existence of a referral or investigation, we will usually limit further comment until there is an enforcement outcome. However, we may provide updates on the progress of the investigation if it is in the public interest to do so, particularly where the conduct being investigated continues to be of considerable public comment and debate. Where an investigation is made public, the AER will usually make a
statement at the conclusion of the investigation if there is further enforcement action (for example, the institution of legal proceedings) or an enforcement outcome.

The AER is not only accountable to the public but also to the Commonwealth Parliament through parliamentary committees. Where it is appropriate to answer questions or provide information in relation to our activities to parliamentary committees, including in relation to investigations, these too will form part of the public record.

Institution of legal proceedings

The AER will publicise the institution of proceedings by issuing a media release. The media release will be appropriately worded and factually accurate, and provide details of the matters alleged by the AER, the redress sought and the reasons the AER has taken the action.

We will generally issue a media release only after originating documents have been filed and served on or otherwise drawn to the attention of the other parties. 

Media releases are published on our website. We also include media release content such as headlines and links in our social media activities. 

Following the institution of proceedings, the AER may, on a reactive basis, explain its enforcement action to the public in media interviews, and will confine its comments to the matters alleged in filed court or tribunal documents and its reasons for pursuing the proceedings. The AER will seek to confine public comment to a period of 48 hours from the issue of its media release. This does not preclude the AER, at any time, from referring to the existence of the proceedings or clarifying issues of fact with the media.

Finalisation of legal proceedings and other enforcement outcomes

Where we have publicised the institution of proceedings, we will publicise the outcome of those proceedings by media release and, where requested, media interviews. We may refer to the outcomes also in speeches, presentations, reports and seminars. 

This includes where the AER is successful, where the respondents are successful, or where the proceedings are withdrawn. 

If the AER appeals a matter, we will publicise the fact of the appeal and its outcome through a media release. We may publish a media release or public statement in a matter where the respondent has appealed that matter.

The AER will also issue a media release for other formal enforcement outcomes, including where a party has paid a penalty following the issue of an infringement notice or provided the AER with a court enforceable undertaking.

In some circumstances, the AER may publicise an administrative resolution of an enforcement investigation after providing notice to the parties. 

The AER may, at its discretion, give advance notice of a public statement about an enforcement outcome to the parties concerned. 

Reporting and review 

The AER will report on its compliance and enforcement activities and outcomes in its whole-of-agency annual report and Annual compliance and enforcement report.

Spokespeople

The AER’s authorised spokespeople are the AER Chair, Deputy Chair, AER Members and the media unit. In matters involving a specialised focus, a Senior Leadership Team member may also be authorised to speak for the AER.

Contact the AER media team

Journalists and media employees may contact the media team at:

Telephone: 0466 409 921

Email: mediaataer [dot] gov [dot] au (media[at]aer[dot]gov[dot]au)

For other enquiries: Contact the AER