Energy Arbitration and Review Act 1998

The Western Australian Electricity Review Board is established.

The Board has the functions conferred on it under the Electricity Industry Act 2004, the Gas Services Information Act 2012 or any other written law.

The Board is to be taken to be a tribunal that comes within item 4 of Schedule 1 to the Public Sector Management Act 1994.

The Board is to be constituted, in relation to particular proceedings before the Board, of —

a presiding member, being a legal practitioner chosen by the Attorney General from a panel of legal practitioners established under this Division; and

2 experts chosen by the presiding member from a panel of experts established under this Division.

The Board may, at any one time, be separately constituted in accordance with this section for the hearing and determination of any number of separate matters.

If an expert hearing proceedings dies or is for any reason unable to continue with the proceedings, the Board constituted of the presiding member and the other expert may, if the presiding member so determines, continue and complete the proceedings.

For the purposes of this Division there are to be —

a panel of legal practitioners each of whom is of not less than 7 years’ standing; and

a panel of experts each of whom has relevant expertise in industry, commerce or accounting.

A person cannot be appointed as a member of a panel if he or she is —

an employee as defined in section 3(1) of the Public Sector Management Act 1994; or

an officer or employee of an entity described in Schedule 1 to that Act.

The Governor may from time to time make appointments to a panel.

An appointment is to be notified in the Gazette.

A person is to be appointed for a term of not more than 5 years and is, on the expiration of a term, eligible for reappointment.

Despite a person ceasing to be a member of a panel through expiry of the term for which the person was appointed the person may continue as a member of the Board for the purpose of completing part‑heard proceedings.

A person chosen to act as a member of the Board who has a conflict of interest in relation to a matter before, or about to come before, the Board must disclose the nature of the conflict to each party concerned in the matter.

A person chosen to act as a member of the Board who has a conflict of interest in relation to a matter before the Board must not take part in proceedings or exercise any powers in relation to the matter unless each party to the proceedings consents.

For the purposes of this section, a person has a conflict of interest in relation to a matter if the person has any direct or indirect interest, pecuniary or otherwise, that conflicts or could conflict with the proper performance of the person’s functions in relation to that matter.

A member of a panel may at any time resign by notice in writing delivered to the Minister.

The Governor may remove a person from membership of a panel —

if the Governor considers that the person —

is mentally or physically incapable; or

is incompetent; or

has neglected his or her duties; or

has failed to comply with section 53; or

has been guilty of misconduct that impairs the performance of his or her duties;

if the person becomes an officer or employee described in section 52(2); or

if the person is an insolvent under administration, as that term is defined in the Corporations Act 2001 of the Commonwealth; or

in the case of a panel referred to in section 52(1)(a), if the person ceases to be a legal practitioner.

The arbitrator appointed under section 62 is to provide the Board with —

the services of such officers and other persons; and

such facilities and support,

Without limiting subsection (1), the arbitrator may under that subsection provide the Board with the services of any person suitably qualified in any field of expertise to advise the Board on matters within that field of expertise.

Subject to any determination of the Board, proceedings before the Board are to be conducted by way of a fresh hearing and for that purpose the Board may receive evidence given orally or, if the Board determines, by affidavit.

The Board —

is not bound by the rules of evidence and may inform itself as it thinks fit; and

must act according to equity, good conscience and the substantial merits of the case and without regard to technicalities and forms.

Questions of law or procedure arising before the Board are to be determined by the presiding member and other questions by unanimous or majority decision of the members.

The Board may, for the purposes of proceedings before the Board —

by summons signed on behalf of the Board by a member of the Board require the attendance of a person before the Board; or

by summons signed on behalf of the Board by a member of the Board require the production before the Board of any relevant books, papers or documents; or

inspect any books, papers or documents produced before it and retain them for such reasonable period as it thinks fit and make copies of any of them or any of their contents; or

require any person to make an oath or affirmation to answer truly all questions put by a member of the Board, or by a person appearing before the Board, relating to a matter before the Board; or

require any person appearing before the Board to answer any relevant questions put by a member of the Board or by a person appearing before the Board.

A person commits an offence if he or she —

has been served with a summons to appear before the Board and fails, without reasonable excuse, to attend in obedience to the summons; or

has been served with a summons to produce books, papers or documents and fails, without reasonable excuse, to comply with the summons; or

misbehaves before the Board, wilfully insults the Board or any member of the Board, or interrupts the proceedings of the Board; or

refuses to be sworn or to affirm, or to answer any relevant question when required to do so by the Board.