Sunday, November 18, 2007

Brumby solid in first quarter but some risky signs

Building on the Bracks policy base, he has tidied up some loose ends.

He is consolidating Labor's position as the natural government in a business-friendly state.

In doing so, Mr Brumby is gradually sucking up the oxygen that the Liberals need to differentiate their product in an electorally competitive fashion.

He has signalled a go-ahead on channel dredging in Port Phillip Bay, ensuring Melbourne retains its standing as a world-class port.

He has indicated he will lift the embargo on genetically-modified crops.  This has been denying new technology to farmers and gradually reducing Australian agricultural competitiveness.

Brumby has hinted at an acceleration of road building.  This should re-weight existing priorities whereby 80 per cent of spending is on public transport which is responsible for only 8 per cent of trips.

He is challenging the state school teachers to lift their game.  This requires comparative assessments of schools, a procedure the school teachers have vigorously resisted.

He has even set up a water inquiry, creating an option to cancel the Desalination White Elephant if he has the stomach to confront the green fanatics.

Once he became premier, Mr Brumby immediately implemented important administrative changes.  He took away the planning portfolio from Rob Hulls and gave it expanded responsibilities under a dedicated minister, Justin Madden.

As planning minister from 2005, Mr Hulls had presided over a decline in new housing starts.

By the first half of 2007 sluggish approval activity led to the average cost of a housing block rising to $130,000, up from around $65,000 in 1999.  Victoria's relatively cheap housing was gradually disappearing.

Mr Brumby has also put pro-development and business-friendly ministers into the key portfolios of energy, roads, and water.

Conservatives remain in control of the key expenditure-restraining treasury and finance portfolios, and he proved willing to take on key public sector employees like nurses who were threatening to blow the wages budget.

Risks remain, however.  The ALP too often places its favoured sons and daughters in key roles where they can do little immediate damage.  But often these roles have major long-term impacts.

Nowhere is this more apparent than in the police force.

Danger signs are also clear in judicial appointments.  Attorney-General Hulls has scant respect for traditionally administered justice and has been stacking the courts with fellow sceptics, most recently human rights advocate Lex Lasry and former ACTU official Iain Ross.

Most people just want courts that protect them and their property, not judges on a mission who endlessly search for underlying causes to excuse criminals' actions.

The administration of justice and policing are essential functions for state governments.  Getting things wrong by being soft on crime can undermine society's law-abiding nature.  That's bad for business and a dreadful prospect for the community as a whole.


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Saturday, November 17, 2007

Wild ride on the wages tiger

At his campaign launch, Kevin Rudd said that Australians "don't ask for a whole lot".  Really?  What explains $96 billion worth of election promises?  Maybe it's just that we've stopped asking for things because we now expect them.

Or it might be that although we haven't actually asked for any of this spending, our politicians thought it would be a good thing to do anyway.

The Labor leader's highly debatable analysis of the national psyche was only one of the numerous dubious assessments he made during his campaign launch.

Rudd proclaimed himself "an economic conservative".  What precisely this means no one knows.  Given the behaviour of the parties at this election, it might merely indicate a desire to spend slightly less taxpayers' money than the other side wants to spend.  We do know that he utters the phrase "economic conservative" almost as often as he says "working families".

A few years ago Rudd called himself "an old-fashioned Christian socialist".  Yesterday, while refusing to disclose whether he believed the Labor Party was still a party of the left, he described himself as "progressive".  So far the ALP leader hasn't explained how it is possible to be an economic conservative, a Christian socialist and a progressive all at the same time.  Perhaps the best explanation of these various terminologies is that Rudd is engaging in some highly creative "product segmentation".

At Labor's launch, great attention was devoted to interest rates and the importance of controlling inflation.  Rudd delighted in proclaiming that the "reckless spending" of the coalition must stop.  Labor should be credited for its audacity in trying to seize the mantle of fiscal rectitude, but it is stretching the bounds of credibility.

Since the election was called, the coalition has made $50.5 billion of campaign promises.  The ALP's promises amount to $45.6 billion.  With one week to go of the campaign this could be the first $100 billion campaign in Australian political history.

It's unclear how Labor can argue that $50 billion of coalition promises are reckless and inflationary, but its own $45 billion of promises are not, particularly when the vast bulk of each side's commitments are nearly identical packages of tax cuts.

In the two days since his campaign launch the Labor leader has gone almost unchallenged on his boast that because the promises at his launch speech were a quarter of those in the Prime Minister's launch that therefore the ALP is better qualified to manage the economy.  The fact that most of the media have swallowed Rudd's line demonstrates how often the media believes what it's told.

The test of financial responsibility is not what leaders say in one speech out of the dozens they deliver on the campaign trail.  The test is what all of their promises add up to.  And in the grand scheme of total government spending there isn't much difference between $50 billion and $45 billion.

Rudd used the nice line that "Work Choices has become the industrial relations law that now dare not speak its name".  But neither party has dared to speak about what they believe the real economic consequences of Work Choices to be.  This is the policy paradox of the 2007 election.

The coalition takes the credit that with a booming economy there hasn't been a wages breakout, and it says that this is because of Work Choices.  On this logic, therefore, Work Choices must have produced wage outcomes less than would have been the case if Work Choices had not existed.  But, says the coalition, Work Choices does not reduce wages.

According to Labor, Work Choices has lowered workers' wages.  But Labor has also strenuously argued that if it abolishes Work Choices wages will not go up and inflation will not rise.

The coalition and Labor can't both be right.  Labor hasn't answered the question of what will limit wages growth if Work Choices goes.

According to Paul Keating, what restrained wages in the 1980s was that the union movement decided to act in the national interest and stopped making unreasonable pay demands.  For this, he says, all Australians should be thankful.  But being grateful for what the unions did 20 years ago is like thanking your neighbour for not robbing your house while you're away on holiday.

If Rudd becomes prime minister, dealing with the consequences of the end of Work Choices is going to be one of his first major economic challenges.  Then Australia will get to find out whether he really is an economic conservative.


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Friday, November 16, 2007

Policy without Parliament:  the growth of regulation in Australia

Backgrounder

INTRODUCTION

Regulation is a political activity.  It sets the framework for the market economy by defining the boundaries between private action and government action.  It is, since the failure of overtly socialist models of political economy, the primary method by which the government relates to individuals and communities.

Regulations, and the regulatory agencies which administer them, cast an increasingly large shadow over the freedom to interact, both economically and socially, in Australia.

The first part of this Backgrounder looks at the rapid growth in regulation-making, and the recent institutional changes in Australia's regulatory agencies.  It charts the consolidation and expansion of the three major economic regulators -- the Australian Competition and Consumer Commission (ACCC), the Australian Prudential Regulatory Authority (APRA) and the Australian Securities and Investment Commission (ASIC) -- and examines the theoretical justifications for constructing such "mega-regulators".

The second part attempts to explain how these mega-regulators are themselves able to encourage their own growth.  It looks at the internal pressures towards regulatory and institutional expansion, as well as the political pressures which the agencies themselves are able to exert upon directly elected politicians.

Table 1:  Pages of Commonwealth Acts of Parliament passed per year, by decade

Total
Pages
Average
per Act
1900s1,0726
1910s1,1953
1920s1,5153
1930s2,5303
1940s2,7954
1950s5,2746
1960s7,5446
1970s14,6749
1980s29,29917
1990s54,57331
2000-200640,26635

REGULATION AND REGULATORY AGENCIES:
GROWTH AND CONSOLIDATION

REGULATION IS INCREASING

The most striking feature of the overall level of regulation and of the regulatory burden in Australia is its growth over time.

Legislation is wider in scope and content than regulation, but it can serve as a useful proxy.  Chart 1 depicts the growth in Commonwealth legislation since Federation, by looking at the number of pages of Acts of Parliament passed per year.

Chart 1:  Pages of Commonwealth Acts of Parliament passed per year, 1901-2006

While the growth in legislative activity has been sustained over time, it is interesting to note the dramatic increase over the past few decades.  For instance, if we mark the year 1980 as the beginning of the reform period in Australia, through 2006, more than five times the number of pages of legislation than it had in the eight decades preceding it.

Furthermore, as Chart 1 reveals, it is striking how little legislative activity was required at the time of Federation to unify the country -- 358 pages, spread over two years -- compared with how much it takes to manage the Commonwealth in 2006 -- a massive 6,786 pages.

Certainly, the changing nature of Australia's federal structure has significantly expanded the jurisdiction of the Commonwealth legislature, but there have been similar increases in State legislative activity -- not decreases, as would be expected if there had simply been a shift in responsibility from the States to the Federal government.

State legislation has also been marked by significant growth.  Charts 3–8 illustrate legislative activity over the past 40 years in Victoria, New South Wales, Queensland, Tasmania, Western Australia and South Australia respectively.

Chart 3:  Pages of legislation passed per year, Victoria, 1958-2006

Chart 4:  Pages of legislation passed per year, New South Wales, 1959-2006

Chart 5:  Pages of legislation passed per year, Queensland, 1962-2006

Chart 6:  Pages of legislation passed per year, Tasmania, 1968-2006

Chart 7:  Pages of legislation passed per year, Western Australia, 1959-2006

Chart 8:  Pages of legislation passed per year, South Australia, 1959-2006

What data is available indicates that subordinate legislation -- regulation -- is growing at a similar pace as legislation.  Charts 9 and 10 show how the increase in subordinate legislation in the Commonwealth and the States parallels the increase in total legislation over the last 40 years.

Chart 9:  Pages of new Commonwealth subordinate legislation, 1962-2006

Chart 10:  Pages of new state subordinate legislation, 1962-2006

Chart 2 reveals an interesting aspect of this increase.  Legislative activity is government independent -- changes in government have little effect on the legislative activity.  For this reason, Chart 2 illustrates how the Coalition Government under Prime Minister John Howard has been the highest legislating government in Australia's history.  A similar analysis is possible with data on regulation cited in Chart 9 -- the Howard Government has overseen the largest regulatory expansion since Federation.

Chart 2:  Average pages of Commonwealth Acts of Parliament passed per year, by government

For the firms and individuals effected by regulatory and legislative increases, the impact is cumulative.  Individuals not only have to act in accordance with the legislation and subordinate legislation passed in any given year -- they also have to contend with the entire body of law as amended.  Some of this legislation and regulation replaces existent law;  but it is clear that it is growing -- if not at the same heady pace that legislation and regulation in general is being passed.

One potential cause of the increase in activity is the move during the 1980s to the use of plain-English drafting -- as opposed to the traditional legislative language inherited from England in the nineteenth century -- as well as the use of double-spacing. (1)  Formatting changes can alter the words-to-page ratio.  Tasmanian legislation in its consolidated form has been published from 1996 on a larger paper format, but with an increase in white space.  Similar changes have occurred in South Australia and Queensland.

Nevertheless, there is little to suggest that the plain-English drafting reform or formatting changes are the sole, or even primary, cause of increasing legislative activity -- the increased activity both preceded the reform and continued after it had filtered through the various tiers of government.  Technical changes in the manner in which legislation is drafted cannot explain modern legislative and regulatory excess.

Anecdotal evidence also suggests that regulatory activity is spiralling ever-upwards.  The Federal Government's 2006 Taskforce on Reducing the Regulatory Burden on Business noted that a particularly striking example of the level of regulation was the 24,000 different types of licences administered by the three levels of government. (2)

Much of the increased regulatory burden is not sector-specific, but is related to workplace law.  The Australian Construction Industry Forum nominates recent changes to industrial relations and occupational health and safety law as a significant addition to the regulation facing its industry, as well as taxation changes. (3)  Indeed, the Income Tax Assessment Act is often used as a barometer of legislative and regulatory growth.  It has grown from 120 pages in 1936 to more than 7,000 pages today.

The Insurance Council of Australia attempts to describe the level of regulation affecting its industry by noting its effects on business structure and practice.  Regulatory compliance now comprises between ten and 25 per cent of board and senior management workload.  One large insurer estimated a much higher workload, at least 40 per cent of senior executive time, and up to 60 per cent of board time. (4)  One small insurer estimated that the compliance burden had grown five-fold since five years ago, and ten-fold since ten years ago.  Another insurer estimated that compliance expenses as a percentage of operating income had more than doubled in the last five years.  Another estimated that the staff numbers in regulatory compliance committees had grown by 20–30 per cent in the last two years up to 2005. (5)  A PricewaterhouseCoopers analyst has noted that, for the insurance industry over the last five years, the cost of complying with the prudential regulatory framework has increased significantly. (6)

The Credit Union Industry Association notes that the burden on both its credit union membership and other banks and building societies has increased since the Wallis Inquiry, due to the mandatory implementation of Basel II, recent Financial Services reforms, changes to prudential standards, and the adoption of international accounting standards. (7)  An example of this increase is provided by the Business Council of Australia:  a total of 227 pages of documentation need to be given to a customer in order to open a simple cheque account with an overdraft limit and home loan, roughly five times the number of pages in 1985. (8)  The Australian Bankers Association reports that one bank has doubled its annual compliance expenditure levels every five years since 1994–95, with a similar growth in staff dedicated to regulatory compliance. (9)

Telstra notes that the number of regulatory instruments applicable to its business has grown since 1997 from 20 to 348, (10) and that the number of reports required by the ACCC have been increasing by two to three each year. (11)

There has been little quantification of the extent of local government regulatory activity, but there are indications that it, too, is increasing.  The Australian Chamber of Commerce and Industry writes that there has been a marked upswing of local government regulation as a constraint to investment between 2003 and 2005. (12)

Some of these anecdotal impressions of the regulatory burden may even understate the economic impact of regulation, by focusing inordinately on the paper-burden cost, rather than the total regulatory cost.  Paper-burden costs typically constitute one-third of the total cost of regulation. (13)  These costs include the cost of employees dedicated to regulatory compliance, and external legal, economic, and financial consultants.

Rapid legislative and regulatory activity imposes its own costs.  The enormous amount of regulatory change since the 1996 Wallis Inquiry has added substantially to the administrative burden of the insurance industry, for example. (14)  Furthermore, a by-product of rapid activity is widespread uncertainty, which has the effect of depressing investment and economic activity.

But the contemporary political focus on "red tape" presents the problem of over-regulation in a narrow light.  The structure of regulation is so central to some firms' business models and profitability that regulatory governance and compliance is an "all-of-firm" question.  For these firms, it is not easy to separate regulatory compliance costs from business costs. (15)  The anecdotal estimates above, which focus predominantly on the easy-to-measure paper-burden costs, are likely underestimations of the total costs for many industries.

The full cost of regulation is much greater than the visible cost of compliance.  Certainly, the distribution of costs brought about by regulation varies by industry.  In the food sector, the primary cost of regulation is a paper-burden cost.  But for much of the economy, the paper-burden cost is dwarfed by the restrictions on economic activity imposed by the regulations.  For instance, the "chilling effect" of access regulation far outweighs the paper-burden cost of those regulations by holding back infrastructure investment.  The cost of investment forgone is much harder to quantify, but a much more significant burden than the paper-burden.

As Gary Banks argues, "regulations not only create paperwork, they can distort decisions about inputs, stifle entrepreneurship and innovation, divert managers from their core business, prolong decision-making and reduce flexibility". (16)  These effects are, on average, far more significant than the red tape which is required by regulators to assess compliance.  Focusing only on paper-burden costs is like focusing on the time spent filling out a tax return rather than the amount of tax paid.  Political platitudes to lower the red tape burden offer little, at least if they are not part of a general push to decrease overall regulatory intervention in the economy.

It would be a mistake to limit the analysis of regulation to the regulatory paper-burden.  Nevertheless, the increases in the compliance cost of regulations can provide a rough proxy for the increases in the regulatory burden across the economy.


REGULATORY AGENCIES ARE GROWING

Another method by which we can attempt to measure regulatory growth is by looking at the structure and size of the regulatory agencies themselves.

There are approximately 60 Commonwealth regulators and national standard-setting bodies. (17)  There are a further 40 Federal ministerial councils which set and administer regulations.  Although hard to estimate, Federal regulatory agencies employ over 34,000 people, with a combined yearly budget of well over $4.5 billion.

The Victorian Competition and Efficiency Commission identified 69 regulatory bodies in that State, with a combined budget (excluding the Metropolitan Fire Brigade, Country Fire Authority and Parks Victoria) of over one billion dollars per annum, and a staff of 6,895. (18)  The Productivity Commission extrapolates these figures to come up with an estimate of 600 regulatory agencies across the country.  Extrapolating that figure, and taking into account government departments with regulatory functions, ministerial councils, inter-governmental bodies, and the range of quasi-official agencies and boards, it is likely that nationwide at least $10 billion is spent on regulating the Australian economy annually.

Using the number of staff as a proxy of agency size, many of the agencies have experienced significant recent growth.  For instance, the Australian Fisheries Management Authority has nearly doubled in size in the last decade, from a staff of 100 to 186.  Staff numbers at Food Standards Australia New Zealand have increased by 50 per cent, from 100 in June 2000 to 146 in 2006.  Staff at the The Australian Pesticides and Veterinary Medicines Authority has increased in that same period from 113 to 133.

In Victoria, the Office of the Chief Electrical Inspector had grown from a staff of 35 in 1999 to 59 in 2005, when it was merged with the Office of Gas Safety to become Energy Safe Victoria with a staff of 89.  The Victorian Building Commission has increased its staff to 111 from 81 in 2002.  The Essential Services Commission has increased from 34 to 62 since 2001.  In New South Wales, the Independent Pricing and Regulatory Tribunal has more than doubled in size in the past decade, from 32 in 1997 to 73 in 2006. (19)


AGENCY CONSOLIDATION AND THE "MEGA-REGULATORS"

There is a large variety of regulatory agencies dedicated to regulating specific industries, such as the federal Civil Aviation and Safety Authority or the Australian Fisheries Management Authority.

Table 2:  Resources of selected Australian Government regulatory agencies in 2004-05

Agency$'000Staff
Australian Customs Service1,026,3515,572
Australian Maritime Authority71,925247
Food Standards Australia New Zealand18,967146
Australian Prudential Regulation Authority95,052570
Australian Securities and Investments Commission217,9671,471
Civil Aviation Safety Authority120,547672
Australian Pesticides & Veterinary Medicines Authority21,263133
Australian Taxation Office2,525,93521,511
Australian Competition and Consumer Commission84,168596
Australian Communications and Media Authority73,799500
Australian Fisheries Management Authority43,162186
Australian Quarantine and Inspection Service*290,0002,800
Total4,589,13634,410

*Data from 2003-04

Source:  Annual reports.
Adopted from Productivity Commission, Regulation and its Review, 2004-05

But occupying a central role in Australia's regulatory system are a few key economic regulators with economy-wide scope.  Rather than being confined to narrow jurisdictions, typically these agencies not only regulate a wide variety of industries, but are also multi-dimensional in scope.  That is, Australia's major economic regulators regulate for both economic and social outcomes, as well as undertaking technical regulation such as standards setting.  These regulators are not built around the institutions that they administer, but rather are built around "functional" lines. (20)  For example,

  • the Australian Securities and Investment Commission (ASIC) is responsible for consumer and investor protection;
  • the Australian Prudential Regulatory Authority (APRA) is responsible for prudential regulation;  that is, market failure associated with information asymmetries in financial contracts;  and
  • the Australian Competition and Consumer Commission (ACCC) is responsible for policing anti-competitive behaviour economy-wide.

Functional regulation is said to be more suitable for economic systems that are highly complex, and when the boundaries between industries are blurred.  With jurisdiction across the economy, functional regulators are able to identify similar characteristics in firms from different sectors and regulate appropriately. (21)  In an "institutional" or industry-centric regulatory system, firms may avoid regulation by engaging in activities in which the regulator may not have specialist expertise to regulate, or the regulator may develop standards which contradict those of other regulators.

Some academics have argued that institutional regulation, by "siloing" off industries into distinct and separate categories, is more resistant to possible "runs" of risk across industry sectors, (22) although there has been some evidence to suggest that adopting a functional approach to financial regulation in Australia has not been harmful in this way. (23)

This Backgrounder looks specifically at the three major functional economic regulators, the ACCC, ASIC and APRA.  However, it is worth noting that the Australian Communications and Media Authority and the Reserve Bank of Australia are also major economic regulators.  Furthermore, both the Australian Taxation Office and the Australian Customs Service also have substantial regulatory powers.


THE WALLIS INQUIRY, 1997

The 1997 Financial System Inquiry ("Wallis Inquiry") was only the third major inquiry into the Australian financial system since Federation, after the 1936 Royal Commission and the Campbell Inquiry in 1981.  After the "four revolutions" which followed the Campbell Inquiry, the financial market and its structure went through a dramatic overhaul, with the introduction of new institutions such as foreign exchange firms, recognised bond dealers and new types of trusts and management funds, as well as entrance into foreign exchange markets and new secondary mortgage markets. (24)  In the decade between 1985 and 1995, the number of commercial banks in Australia increased from 13 to 49. (25)

Chart 11:  Agency consolidation

The purpose of the Wallis Inquiry was to assess the appropriateness of the regulatory framework which had been constructed during the period of financial deregulation in light of these changes.  The "modest trend" towards agency consolidation internationally was noted in the Inquiry's discussion paper -- the Inquiry predated the now proto-typical example of an "all-in-one" regulator, or "mega-regulator", the United Kingdom's Financial Services Authority (FSA).

Governance and the concentration of power were factors for the participants of the inquiry when recommending the ideal regulatory structure.  The Inquiry rejected a proposal to amalgamate existing financial regulators into a "mega-regulator" on the grounds of efficiency and specialisation.  The Inquiry was concerned with regulatory governance, writing that a single regulator may become "excessively powerful". (26)

But, nevertheless, the Wallis Inquiry's final recommendations, as adopted by the government, consisted of major agency consolidation into two main organisations:  the Australian Prudential Regulatory Authority (APRA) and the Australian Securities and Investment Commission (ASIC).  This model was popularly known as the "twin peaks" model, from a 1995 article which recommended delineating financial regulation according to function -- prudential (APRA) and disclosure (ASIC). (27)  Advocating this consolidation of agencies, Treasurer Peter Costello wrote ahead of the Wallis Inquiry:

The regulatory framework is hopelessly out of date.  You have superannuation funds that are now in home lending and are essentially running banks and you have banks coming into superannuation -- you have got different institutions offering the same product, different regulators regulating the same product because they are offered by different institutions.  Why do not we cut all that away and say whatever the nature of the financial institution we will have a regulator covering prudential and a regulator covering consumer protection and we can sweep a whole lot of that away? (28)

Although the "twin peaks" model amalgamated regulatory functions in a less centralising manner than the United Kingdom's FSA, it was, nevertheless, a significant consolidation of regulatory power.  By drawing the vast bulk of regulatory functions away from the Reserve Bank of Australia (the bank did gain some of the roles then played by the Australian Payments System Council), the new model eclipsed the international consolidations described in the Inquiry's discussion paper.  It is not inaccurate to refer to the new tri-regulator model as a system of "mega-regulators", even if the FSA provides a more "pure" example of such an institution.  The result of the Wallis Inquiry was the creation of two functionally-structured mega-regulators with economy-wide jurisdiction.


AUSTRALIAN PRUDENTIAL REGULATORY AUTHORITY

Before the Wallis Inquiry, prudential regulation was structured institutionally -- a framework which emphasised the differences between the regulated institutions rather than the similarities.  The Insurance and Superannuation Commission (ISC) regulated insurers and superannuation funds.  The RBA regulated the banking sector.  The constitutional division between the Commonwealth and the States had resulted in regulatory authority for building societies, friendly societies and credit unions residing in the eight State-based "State Supervisory Authorities" (29) and the federal Australian Financial Institutions Commission (AFIC).

Under the post-Wallis Inquiry reforms, APRA, as a functional regulatory agency, has assumed prudential regulation of finance-based industries.  It required eleven pieces of legislation, which constituted over 4,000 pages, including four new Acts and two omnibus Acts.  In total, APRA's foundation amended and repealed more than seventy existing Acts. (30)

APRA absorbed the ISC entirely, as well as roughly seventy staff from the RBA with bank regulation roles.

Chart 12:  APRA, Staff and Annual Appropriations, 2000-01 to 2007-08

Source:  Staff:  APRA Annual Reports.  Appropriations:  Commonwealth Budget Papers

The agency has since experienced rapid growth, from a staff of roughly 400 at the time of transition to 570 in 2006.  The annual federal appropriation for APRA has grown 50 per cent, to a budgeted $92 million in 2006–07.

In addition to the legislation which founded APRA, the prudential regulator has overseen more than 66 major regulatory changes since 2000. (31)  In 2007, APRA regulates more than 1,900 entities (excluding small APRA funds). (32)

For the insurance industry, the creation of APRA represented a significant increase in the regulatory activity covering the sector.  Under the ISC, the insurance industry had been regulated relatively lightly.  In the view of the new consolidated regulator, this was unsatisfactory.  APRA's Executive General Manager, Policy, Chris Littrell argued that:

Until 2001 the Australian general insurance industry was characterised by an unsatisfactory culture of reluctant regulatory compliance by some entities, even among our largest companies. (33)

Indeed, following the HIH Insurance collapse, Littrell argued that eliminating this cultural clash was one of the key tasks the regulator faced:

As an integrated supervisor, APRA is in a position to observe the managerial differences between our regulated sectors.  Banks in general are run by people who are or have been risk managers, and by people who understand that regulation has its good points.  In Australia at any rate, many insurance companies have been dominated by salesmen, who often viewed regulation as something to be avoided.  Having come up the career ladder by dealing with actuarial restrictions, they tended to treat regulatory requirements as another annoyance to overcome, rather than a guide to good practice. (34)

While HIH's collapse and the subsequent Royal Commission heralded the beginning of a major wave of increased regulatory activity in the insurance industry, its genesis was the foundation of APRA itself, which coupled the insurance industry with the much more highly regulated banking industry.  Indeed, plans to increase regulation of the general insurance industry preceded the 2001 collapse of HIH.  The Financial Services Reform Act 2001 classified most insurance as a "financial service" -- with the notable exceptions of reinsurance, health insurance and government insurance -- and required an Australian financial services licence.  Financial product advice, dispensed by intermediaries not directly providing insurance, also required licences under the 2001 Act.  The Act also imposed significantly increased product disclosure requirements, as well as capital and corporate governance requirements. (35)

The industry is implementing a second wave of HIH-inspired reforms, APRA Stage II, which, among other things, requires new business plans to meet future capital liabilities, annual financial condition reports, and regular external reviews.

In its submission to the Taskforce on Reducing the Regulatory Burden on Business, the Association of Superannuation Funds of Australia, claimed that since the establishment of ASIC and APRA, supervisory levies paid by superannuation funds had increased dramatically.  Those of APRA's expenses related to superannuation have grown, even though the number of superannuation funds themselves has decreased significantly. (36)

For the banking sector, a good deal of the regulatory change after the foundation of APRA was concerned with the transfer of regulatory authority from the still-existent RBA towards the new prudential regulator. (37)  But the most significant regulatory change has been the adoption of the Basel II Capital accords.  Australia's authorised deposit taking institutions (ADIs) will begin to adopt the Basel II Framework in January 2008.

The implementation of Basel II under the auspices of a mega prudential regulator has, for many organisations, had the effect of imposing a dramatic increase in regulatory burdens.  Basel II constructs an internationally consistent framework for banking capital requirements and accounting standards.  For large, internationally active banks, implementing Basel II has much important significance.  However, for smaller domestically based ADIs, Basel II provides little benefit.  For credit unions, whose involvement in international markets is low, the cost of implementing the framework is precipitously high.  Similarly questionable benefits have accompanied APRA's uniform adoption of the International Financial Reporting Standards, which affects major, internationally active Australian banks and small domestic cooperatives such as the St Mary's Swan Hill Co-operative Credit Society alike. (38)  APRA's activities illustrate clearly the perils of uniformly applying regulations that are designed for a specific type of institution.


AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION

Under Australia's "twin peaks" regulatory model, the Australian Securities and Investment Commission regulates company and financial services law for consumer, investor and creditor protection.  Where APRA regulates for the viability of financial institutions, ASIC's many briefs include regulating conduct and disclosure, administering the Corporations Law and consumer protection.  To do so, it administers eight separate Acts, including the Corporations Act 2001, Australian Securities and Investments Commission Act 2001, and the Insurance Contracts Act 1984.

ASIC was drawn from the Australian Securities Commission, and upon its establishment in 1998, absorbed the consumer protection responsibilities in insurance and superannuation of the ISC.  It also drew consumer protection responsibilities in finance from the Australian Competition and Consumer Commission, replicating Section 52 of the Trade Practices Act in the ASIC Act.  Further, ASIC absorbed the consumer protection responsibilities of the Australian Payments Systems Council and financial sector industry codes of conduct. (39)  In 2005–06, ASIC had regulatory responsibility for 1.5 million corporations and 4,415 financial services businesses. (40)

ASIC's growth has been the most marked of the economic regulators.  Since 1999, the regulator's annual real appropriations have increased by 93 per cent.  In that time, more than 200 extra staff were hired, growing from 1,221 to 1,471.

Regulatory agencies are reluctant to divulge the resources dedicated to different aspects of their operations, but the 2005–06 Annual Report provides a breakdown of ASIC's staff operations.  (See Table 3.)

Table 3:  ASIC staff by team, 2005-06

TeamRoleNumber
Enforcing the lawInvestigate and act against misconduct373
Protecting consumersProtect consumers100
Promoting complianceEnsure companies and licencees comply with the law187
Regulatory workSet ASIC policy on regulating markets and business137
OperationsCompany data, insolvency, IT and HR480
FinanceFinance, risk, knowledge management, corporate services117

Source:  ASIC Annual Report, 2005-06

According to publicly available data, regulation and enforcement consume between 50 and 60 per cent of ASIC's staff numbers and finances, a proportion which has increased since its founding. (41)  The categories that ASIC uses to classify its activities could be misleading -- nevertheless, it is notable that the development of regulatory policy, that is, changes in regulatory policy, employs more than 100 full-time staff.

ASIC has overseen a rapid and comprehensive overhaul of corporate governance law under the Corporate Law Economic Reform Program (CLERP).  Changes to Australian's corporate law under CLERP have spanned nearly a decade, so far comprising:

CLERP 1-5:  Corporate Law Economic Reform Act 1999, covering fundraising, director's duties, takeovers and accounting standards.

CLERP 6:  Financial Services Reform Act 2001, covering Wallis Commission reforms.

CLERP 7:  Corporations Legislation Amendment Act 2003, covering lodgement and compliance procedures.

CLERP 9:  Corporate Law Economic Reform Program (Audit Reform & Corporate Disclosure) Act 2004, covering the regulation of corporate governance.

The continuous reform of the CLERP decade is set to continue:  The Federal Government released three discussion papers on corporate law and compliance in March 2007. (42)

Chart 13:  ASIC, Staff and Annual Appropriations, 1999-00 to 2007-08

Source:  Staff:  ASIC Annual Reports.  Appropriations:  Commonwealth Budget Papers

The rapid, comprehensive change in corporate law under the continuous process of CLERP, as well as the Wallis Inquiry-era reforms which inaugurated ASIC, have been matched by the regulator's use of legal instruments to modify the Corporations Act 2001.  Since 2002, ASIC has issued more than 380 class orders, which materially alter the make-up of corporate law. (43)  Indeed, the Association of Superannuation Funds of Australia argues that ASIC's reliance on instruments such as class orders has been a major cause of the increased complexity of corporate regulation in the last decade. (44)

The gains from the expanding reach of regulatory intervention in the structure of the firm are uncertain.  Prominent corporate collapses have been a regular feature of Australian economic history since before Federation. (45)  There is, however, little evidence to suggest that the dramatic increase in corporate, securities, financial and banking regulation that followed the wave of corporate collapses in the late 1980s has had any significant impact on subsequent collapses.

There is a very real likelihood that the excessive restraints placed upon corporate form and function, particularly at the executive and upper management level, can have a detrimental effect on entrepreneurial activity.  Regulatory micro-management places a significant burden upon innovative practices and structures.  It also imposes substantial costs upon firms.  For instance, regulatory measures which attempt to foster "compliance culture" by imposing personal legal liability for business decisions upon executives reduce the incentive to take up those senior management positions, and raise the salaries of those who do. (46)

As with all tax and regulatory burdens, firms try as hard as possible to pass these costs on to the consumer.  It is indicative that an August 2006 CPA Australia survey found that, in the view of those surveyed, the overwhelming beneficiaries of CLERP 9 auditing reform processes were regulators and auditors. (47)

Chart 14:  ACCC, Staff and Annual Appropriations, 1998-99 to 2007-08

Source:  Staff:  ACCC Annual Reports.  Appropriations:  Commonwealth Budget Papers


AUSTRALIAN COMPETITION AND CONSUMER COMMISSION

The Australian Competition and Consumer Commission (ACCC) was also conceived as a national functional regulator for Australian competition and consumer regulation.  The 1993 Hilmer Committee wrote that it:

...started from the proposition that competition policy across all Australian industries should be desirably administered by a single body... As well as the administrative savings involved, there are undoubtedly advantages in ensuring regulators take an economy-wide perspective and have sufficient distance from particular industries to form objective views on often difficult issues. (48)

Before the creation of the ACCC, the Australian Trade Practices Commission (TPC) monitored and enforced competition regulation under the 1974 Trade Practices Act.  The Prices Surveillance Authority administered the Prices Surveillance Act 1983, focusing on the abuse of market power. (49)  In 1995, the Trade Practices Commission and Prices Surveillance Authority were folded into the newly-created ACCC to administer the Trade Practices Act.  In 1997, the telecommunications regulator, AUSTEL, was abolished and responsibility for telecommunications-specific competition regulation transferred to the ACCC.  (The responsibility for technical and standards regulation for the telecommunications industry was moved to the Australian Communications Authority, now the Australian Communications and Media Authority.)

In 2005, the Australian Energy Regulator was established, as an independent but constituent part of the ACCC.  In practice, the AER will operate largely as a section within the ACCC. (50)

After its assumption of telecommunications regulation, the ACCC has grown from a staff of 359 in 1999 to 596 in 2006 -- a 66 per cent increase.  The agency's budget has more than doubled.

In 2005–06, the ACCC was involved in 53 litigation proceedings, and accepted 54 enforceable undertakings from firms. (51)

Compared with APRA and ASIC, the ACCC has overseen a relatively stable regulatory environment, at least since 1997.  Some changes are, however, worth noting.  In 1998, the regulator lost some jurisdiction as responsibility for misleading and deceptive conduct in financial services was transferred to ASIC.  However, ASIC has since referred the responsibility for health insurance back to the competition regulator.  The ACCC was given responsibility for price monitoring and price "exploitation" during the transition to the New Tax System, which may account for the sharp increase in the growth of staff in the 1998–2000 period.  This increase in agency size has, tellingly, been sustained since those powers expired.

Warren Pengilley has described the omnibus role of the ACCC as "educator, policymaker, prosecutor, advocate, adjudicator, executioner and arbitrator". (52)  Elsewhere, he noted that

[Regulatory activity] ...resembles the attitude of the Soviet Navy to the North Sea.  When the Soviet Navy does not know what to do with its submarines' spent nuclear fuel, it simply throws it into the North Sea without much consideration for the long-term effects of its action.  We have done much the same in this country in relation to regulation.  When we have some sort of an economic or pricing problem, we simply throw it to a regulator to fix without much consideration of the long term effects of what we are doing. (53)

THE REGULATORY AGENCY AS A
SOURCE OF REGULATORY GROWTH

BUREAUCRACIES GROW

The growth of regulatory agencies can be explained in a number of ways.  For example:

  • As the volume and complexity of regulation grows, the cost and expertise required to administer it grows similarly.
  • There may be a political desire to provide extra resources for increased regulatory activity.  The voter reaction to a corporate collapse or scandal may lead politicians to "beef up" the resources of the financial regulator, regardless of the efficacy of doing so.

These explanations locate the cause of agency expansion outside the agencies themselves, and depict the regulator as a passive recipient of budget and resource decisions made by directly elected politicians.

However, further explanations of bureaucratic behaviour derived from the public choice school help flesh out some other sources of agency growth.  Regulatory agencies differ in many important respects from traditional bureaucracies, but they are influenced by many of the same incentives and share many of the same structures.  The model of bureaucratic growth provided by public choice theory can be usefully applied to independent regulatory agencies.  After all, regulators are, like bureaucracies, non-profit organisations financed by appropriations, rather than the sales of output.  Similarly, bureaucracies and regulators are motivated not by the profit-maximisation that characterises private industry, but by discretionary budget maximisation. (54)

As a consequence, regardless of any increase in regulation, we should expect regulators, acting as bureaucracies, to expand their discretionary budgets accordingly.  Agency growth can, at least in some part, be caused by the agency itself.

Jurisdictional growth can also encourage agency expansion.  Empirical evidence suggests that bureaucratic budget maximisation is partly dependent on the size of the jurisdiction administered.  In small jurisdictions, it is difficult to conduct public policy that favours a minority, as voters -- or regulated firms with political capital -- are able to inform themselves about that policy at a lower cost.  In larger jurisdictions, however, voters and firms are constrained both by the costs of acquiring information and by the lower possibility that doing so could materially effect the policy. (55)  Larger jurisdictions also increase the cost of moving away from the jurisdiction -- the bureaucracy effectively asserts a monopoly power over those it administers.

Two major driving forces have led to a jurisdictional expansion of regulatory agencies.  The first is the centralisation of regulatory agencies.  Agency consolidation has been made possible by moving regulatory jurisdictions from the States to the Commonwealth -- for example, the Wallis-era reforms eradicated the State-based State Supervisory Authorities in favour of federal regulators.

The second is the transition from institutional regulation to functional regulation.  Functional regulation can be usefully seen as a jurisdictional expansion, as regulators focus not on single industries, but on broad categories of marketplace activity.  This expansion in regulatory scope is just as much a jurisdictional expansion as a geographic one.


REGULATION EXPANDS

Former British Prime Minister Tony Blair has nominated a tendency towards greater risk-aversion by regulators, legislators, and the general public, as a source of increased regulation.

In my view, we are in danger of having a wholly disproportionate attitude to the risks we should expect to see as a normal part of life.  This is putting pressure on policymaking [and] regulatory bodies ... to act to eliminate risk in a way that is out of all proportion to the potential damage.  The result is a plethora of rules, guidelines, responses to "scandals" of one nature or another that ends up having utterly perverse consequences. (56)

The notion of "risk society" that Blair draws upon describes a society "increasingly preoccupied with the future (and also with safety), which generates the notion of risk". (57)  A "risk society" is not a society that is more hazardous -- rather, it reflects a preoccupation with potential hazards and a desire to manage them.  This focus on risk transmits, at least in a democratic system, a similar preoccupation with managing it in the political class.  As Blair has argued, the risk society is a society increasingly dependent on regulation as the panacea to its ills.  The risk society is also one in which the sheer volume of regulation creates a correspondingly large volume of unintended public policy consequences.

But Blair's description of the regulatory expansion attributable to external democratic factors also ignores existing and potential internal sources of regulatory growth.  Inherent in regulatory activity is its tendency to expand into new areas.  Increased regulation is a consequence of a systemic bias towards increased regulatory activity.  Regulators are biased towards expansive interpretations of their jurisdiction, levels of excessive risk, the "immorality" of certain forms of corporate conduct, and so on.

Regulation expands both vertically and horizontally. (58)


Vertical regulatory expansion

Regulation expands vertically, that is, deeper into the affairs of the regulated firms, as the regulator attempts to gauge how compliant firms are, or ascertain whether there are new opportunities for regulation.

As firms and individuals deal with the introduction of new regulation, they gather knowledge about its specifics.  And, as profit-maximising entities, they endeavour to avoid the costs of the new regulation by technological, process, or structural innovation.  In response, the regulator, interpreting these actions as a failure of the regulatory framework, endeavours to expand its jurisdiction to cope.

Edward Kane views the relationship between regulator and firm as a continuous game of cat and mouse:

Market institutions and politically imposed restraints reshape themselves in a Hegelian manner, simultaneously resolving and renewing an endless series of conflicts between economic and political power.  The approach envisions repeating stages of regulatory avoidance (or "loophole mining") and re-regulation, with stationary equilibrium virtually impossible. (59)

The result of this game is a spiralling volume of regulation and a diversion of effort away from economically beneficial innovation to regulation-avoiding innovation.  In a complicated regulatory framework, there is just as much scope for entrepreneurial activity focused on regulatory gamesmanship as entrepreneurial activity focused on satisfying consumer preferences.  Firms cannot passively accept the increased costs caused by regulation, and so engage in strategies to avoid those costs.  Regulators are reluctant to let the avoidance slide because avoidance threatens their bureaucratic turf.  Kane describes regulators as defenders of their jurisdictions by noting that regulatory agencies are keenly aware that "an unchallenged regulatory circumvention rapidly earns squatters' rights.  As a consequence, and frustrated by their seeming ineffectiveness, regulators are tempted to "shore up" the existing suite of regulation with as much added regulation as they have the legal power to enact.

Furthermore, regulators have an incentive to act quickly, rather than effectively.  This political imperative can lead them towards over-regulation or over-enforcement.


Horizontal regulatory expansion

Regulation also expands horizontally, to encompass a broader array of firms whose activities might parallel the activities of those in the original jurisdiction.  Such expansion is partly the consequence of similar expansion in the economy.

For example, competition law is now applied to digital services, a market not envisioned by the policy-makers who drafted the original Trade Practices Act.  As Clyde Wayne Crews argues:

Agencies face overwhelming incentives to expand their turf by regulating even in the absence of demonstrated need, since the only measure of agency productivity -- other than growth in its budget and number of employees -- is the number of regulations. (60)

So in many cases, it is likely that the regulatory agencies themselves are, at least in part, responsible for the expansion of regulation across the economy -- a conclusion perhaps borne out by the regular appeals by regulators for expanded power and jurisdiction. (61)  Regulators act as stakeholders within their own jurisdictions just as much as any firm, consumer group or NGO does.  A range of other (more personal) factors can influence the regulator towards lobbying for increased regulation, including ideological preference, or a hostile relationship to regulated firms.

Furthermore, their nominal independence from the political process and from the economic interests of those they regulate gives them substantial public authority to comment and recommend legislative change.  A warning may perhaps be sounded here about the possibilities of a reverse regulatory capture;  that is, capture of the legislator by a regulator determined to expand its jurisdiction or scope.  The expertise claimed by regulators within their jurisdictions provides them with a strong platform to recommend regulatory changes which increase their own powers.

"Arm-twisting" tactics can also be used to expand the powers of the regulator, by manipulating firms to exceed the legal requirements for compliance.

Regulatory spread is often the result of a concerted effort by the regulator itself to expand its powers in order to fulfil its original purpose, or at least what it considers to be its original purpose.  The legislative imposition of greater regulation can be easily tracked through published indices of consolidated legislation and subordinate legislation, but the creeping expansion of a regulator's jurisdiction and power is more obscure.

Both the legislator and the regulator, for different but often overlapping reasons, add to the burden of regulation upon the economy.


CONCLUSION

Regulation is not only a drain on economic efficiency and activity.  The increase in regulatory activity and the consolidation of regulatory responsibility into "mega-regulators" raise a number of political governance questions -- as regulators hold increasing power over the economy, their activity takes on a political dimension.

Ronald Reagan's 1976 criticism of the undemocratic power of regulatory and bureaucratic agencies in the United States applies just as well to Australia in 2007 when he argued that:

We are governed more and more by people we never elected, and who can't be turned out of office by our votes and who want more power than they ever have. (62)

Regulatory agencies have presided over the most intense period of regulatory and legislative activity in Australian history.  This position gives them enormous influence -- for which they are largely separate from the traditional chains of democratic accountability.  Furthermore, as we have seen, this independence has the capacity to encourage regulatory growth and expansion, increasing the burden on the economy.

To mitigate the growth of excessive economic intervention in the short term, legislation needs to be more carefully drafted to be clear about its objectives, the type of behaviour that the regulation is intended to target, and, importantly, the objective principles guiding the need for, and conduct of, the regulation.  These may be obvious requirements, but they are not always met.  The Productivity Commission found that the National Access Regime, as innovative and imposing a regulatory mechanism as could be imagined, failed on all of these counts. (63)

To stem the increase in regulation-making -- and to ensure what regulation is made is as effective and efficient as possible -- Alan Moran has recommended a number of requirements for new regulations:

  1. Require a review to ensure the new regulation is fully consistent with the letter and spirit of the freedom of inter-state commerce provisions of the Constitution.
  2. Introduce the regulation under a two stage process approach:  the first simply setting out the issues in a dispassionate and non-committal manner and the second seeking comment on the agency's preferred approach.
  3. Require an independent analysis to verify that the regulation is merited.  This might be a scientific review in the case of measures mooted that guard against health or environmental externalities.  And it may use formalised and independent economic analysis to review alleged economic benefits from an externality.
  4. Establish disciplines that ensure the regulatory burden does not increase.  In this respect a useful approach would be that of the UK Prime Minister's direction to the Better Regulation Task Force to look at:
    • First measuring the administrative burden, then setting a target to reduce them (the Dutch approach);  and
    • A "one in, one out" approach to new regulation, which forces a prioritisation of regulation and its simplification and removal. (64)

But while regulation dominates economic life, it is nonetheless a specific problem with a larger cause -- the extended reach of government into the economy.  Concerns about the manipulation of firms by regulators or the growth of regulatory power are more generally symptoms of interventionist government.

Unfortunately, on this ultimate point, there can be no "silver bullet" solution.  The "one in, one out" approach may slow the growth in regulation, but achieve no overall reduction of the burden and the costs.  Independent analysis, greater and more structured consultation processes and increased rigour to ensure that new regulations are constitutional will similarly do little to increase economic freedom.

As regulation is first and foremost a political act, the problem of regulatory expansion ultimately requires a political solution.  A reduction of regulation and regulatory activity is a challenge which requires a concerted effort from regulators and legislators alike.

Elected representatives need to be cognizant not only of the economic and social impact of the vastly expanding body of regulation, but also of the impact it has on political governance and the dispersion of power in Australia's democracy.



REFERENCES

1.  Ian Turnbull, "Plain Language and Drafting in General Principles", April 1993.

2.  Rethinking Regulation:  Report of the Taskforce on Reducing the Regulatory Burden on Business, January 2006.

3.  Australian Construction Industry Forum, Submission to the Australian Government Regulation Taskforce, November 2005.

4.  pers. comm.

5.  Insurance Council of Australia, Submission to the Australian Government Regulation Taskforce, November 2005.

6.  Glenda Korporaal, "Coping With the Collapse", Charter, November 2006.

7.  Credit Union Industry Association, Submission to the Taskforce on Reducing the Regulatory Burden on Business, December 2005.

8.  Business Council of Australia, Submission to the Taskforce on Reducing the Regulatory Burden on Business, December 2005.

9.  Australian Bankers Association, Submission to the Taskforce on Reducing the Regulatory Burden on Business, November 2005.

10.  Many of these are due to the complex regulatory framework under which the telecommunications sector is governed, but it is worth noting that more than 100 are from quasi-regulatory agencies such as the Australian Communications Industry Forum.  Telstra also notes that it provides the government with an estimated 486 reports annually -- a total of 162,000 pages.  The company has, to contextualise that figure, noted that this would be the equivalent of 163 editions of Tolstoy's War and Peace.  See "The regulatory paperwork mountain", Now We Are Talking, Facts & Figures.

11.  Telstra Corporation Limited, Submission to the Australian Government Regulation Taskforce, November 2006

12.  Australian Chamber of Commerce and Industry, Holding Back the Red Tape Avalanche:  A Regulatory Reform Agenda for Australia, Position Paper, November 2005.

13.  Richard J. Wood (ed.), Impact and Outcome of Regulation on the Economy, May 2005.

14.  Insurance Council of Australia, Submission to the Australian Government Regulation Taskforce, November 2005.

15.  Richard J. Wood, Paperburden costs of economic regulation of the gas and electricity supply industry, Submission to the Productivity Commission, Energy Issues Paper 29, November 2003.

16.  Gary Banks, "The good, the bad and the ugly:  economic perspectives on regulation in Australia".  Address to the Conference of Economists, Business Symposium, Hyatt Hotel, Canberra, 2 October 2003.

17.  Productivity Commission, Regulation and its Review, 2004-05, Annual Report Series, 2005.

18.  Victorian Competition and Efficiency Commission, The Victorian Regulatory System 2006:  Quantitative Final Data, 2006.

19.  Victorian Competition and Efficiency Commission, The Victorian Regulatory System 2006, Annual Reports, various.

20.  Australian Prudential Regulatory Agency, "APRA and the Financial System Inquiry", Working Paper, January 2000.

21.  Di Thomson and Malcolm Abbott, "Australian Financial Prudential Supervision:  An historical view", Australian Journal of Public Administration, vol. 59, no. 2, June 2000.

22.  RC Merton and Z Bodie, "A conceptual framework for analyzing the financial environment" in The Global Financial System:  a Functional Perspective, Harvard Business School, Boston, 1995.

23.  Colin Beardsley and John O'Brien, "The Financial Services Reform Act 2001:  Impact on systemic risk in Australia", ICMA Centre Discussion Papers in Finance, DP2005-12.

24.  Mervyn K Lewis, "The Wallis Inquiry:  its place in the evolution of the Australian financial system", Accounting Forum, vol. 21, no. 2, 1997.

25.  Bijit Bora and Marvyn K Lewis, "The Australian Financial System:  Evolution, regulation and Globalization", Law and Policy, vol. 28, 1997.

26Financial System Inquiry Final Report, March 1997.

27.  Caner Bakir, "Who needs a review of the financial system in Australia?  The case of the Wallis Inquiry", Australian Journal of Political Science, vol. 38, no. 3, 2003.

28Australian Financial Review, 14 March 1996

29.  The New South Wales Financial Institutions Commission (FINCOM), the Victorian Financial Institutions Commission (VicFIC), the Registrar of Financial Institutions (N.T.), the Western Australian Financial Institutions Authority (WAFIA), the Queensland Office of Financial Supervision (QOFS), the South Australian Office of Financial Supervision (SAOFS), Registrar of Financial Institutions (A.C.T.) and the Tasmanian Office of Financial Supervision (TOFS).

30.  Australian Prudential Regulatory Agency, "APRA and the Financial System Inquiry", Working Paper, January 2000.

31.  APRA, Commonwealth Regulatory Plans, 2001–2006.

32.  APRA/ASIC Working Group Status Report, 5 February 2007.

33.  Charles Littrell, "General insurance regulation:  The Australian experience" 2 December 2002.

34Loc. Cit.

35.  Allens Arthur Robinson, Annual Review of Insurance Law, 2002.

36.  Association of Superannuation Funds of Australia, Submission to Taskforce on Reducing the Regulatory Burden on Business, December 2005.

37.  See, for instance, the Financial Sector (Collection of Data) Act 2001, which came into effect in July 2002.

38.  Credit Union Industry Association, Submission to the Taskforce on Reducing the Regulatory Burden on Business, December 2005.

39.  Jillian Segal, "ASIC -- The new regulatory regime".  Keynote address to the Australian Association of Permanent Building Societies, 30 April 1999.

40.  ASIC, Annual Report, 2005–06.

41.  Helen Bird, Davin Chow, Jarrod Lenne and Ian Ramsey, "ASIC Enforcement Patterns", Research Report, Centre for Corporate Law and Securities Regulation, 2003;  ASIC Annual Reports.

42"Insider Trading -- Position and Consultation Paper"Review of the Operation of the Infringement Notice Provisions of the Corporations Act 2001Review of Sanctions in Corporate Law.

43.  ASIC website.

44.  Association of Superannuation Funds of Australia, Submission to the Taskforce on Reducing the Regulatory Burden on Business, December 2005.

45.  Trevor Sykes, Two Centuries of Panic:  A History of Corporate Collapses in Australia, Sydney, Allen and Unwin, 1988.

46.  Australian Bankers Association, Submission to the Taskforce on Reducing the Regulatory Burden on Business, November 2005.

47.  CPA Australia, Perceptions of Audit Reform -- Impact on auditing and public confidence:  Survey Findings, August 2006.

48.  Independent Committee of Inquiry into Competition Policy in Australia, 1993.

49.  Prices Surveillance Authority, Submission to National Competition Policy Review, February 1993.

50.  Ed Willet, "The AER and its 'fit' with the ACCC model", Trade Practices Workshop, 23 July 2006.

51.  ACCC, Annual Report, 2005-06.

52.  Hansard, House of Representatives Standing Committee on Economics, Finance and Public Administration, Thursday 23 August 2001.

53.  Warren Pengilley, "Competition regulation in Australia:  A discussion of a spider web and its weaving", Competition & Consumer Law Journal, vol. 8, no. 3, 2001.

54.  See, generally, William A Niskanen Jr, Bureaucracy and Public Economics, Edward Elgar Publishing, England, 1994.

55.  David CL Nellor, "Public bureau budgets and jurisdiction size:  An empirical note", Public Choice, no. 42, 1984.

56.  Tony Blair, "Common sense culture not compensation culture".  Speech to the Institute of Public Policy Research, 26 May 2005.

57.  Anthony Giddens, "Risk and Responsibility", The Modern Law Review, vol. 62, no. 1, 1999.

58.  This description of regulatory expansion as "vertical" and "horizontal" is drawn from Warren Pengilley, "Competition regulation in Australia:  A discussion of a spider web and its weaving", Competition & Consumer Law Journal, vol. 8, no. 3, 2001.

59.  Edward J Kane, "Accelerating Inflation, Technological Innovation, and the Decreasing Effectiveness of Banking Regulation", The Journal of Finance, vol. 36, no. 2, 1981.

60.  Clyde Wayne Crews, "No Regulation without Representation:  A snapshot of the Federal Regulatory State from Ten Thousand Commandments 2005", Monthly Planet, Competitive Enterprise Institute, 12 October 2005.

61.  Pengilley, op. cit.

62.  Ronald Reagan, quoted in Steven F. Hayward, "Reagan and the Historians", Claremont Review of Books, vol. 7, no. 4, Fall 2007

63.  Gary Banks, "Competition regulation of infrastructure:  getting the balance right".  Presentation to the IIR Conference, National Competition Policy Seven Years On, 14 March 2002.

64.  Richard J. Wood, "Impact and Outcome of Regulation on the Economy".  Address to the Monash Law School's Rethinking Regulation Forum, 15 November 2006.

Thursday, November 15, 2007

IR reform activity must go on

In the next parliamentary term we need to see a consolidation of the changes Work Choices has brought about, despite the differences between the government and opposition in this campaign.

There is a loose consensus around two key reform items that will yield substantial efficiency dividends and possibly reduce unemployment below 4 percent during the 42nd parliament if the next government is able to maintain the momentum generated in, this most recent term.

The first is award simplification.  Many would have been pleased to see during the debate last week between Workplace Relations Minister Joe Hockey and opposition spokeswoman Julia Gillard.  General bipartisan support for award simplification.  The government and opposition have in mind processes of simplification that could produce different outcomes, but there is at least a common view that our system of awards is too complex.

The second issue will prove to be of great consequence.  Over the next three years, the government and parliament will need to decide to what extent the federal system, the key to a unitary system, is to prevail over state systems.  About 85 per cent of employees fall within the federal jurisdiction.  But since Work Choices was introduced, state governments have been enacting legislation on workplace matters that are not precluded by the federal act.  The Workplace Relations Act establishes the supremacy of the federal system but preserves the states' ability to enact legislation on specific employment matters.

These matters include the method and frequency of payment of wages or salaries, deductions from wages or salaries and long service leave.  None of this is to argue that state governments have no role in the regulation of aspects of employment.  But to achieve greater clarity for employers and employees, a decision will need to be made about whether state legislation in all these areas sits comfortably within an increasingly unitary system.

An example of this complexity was seen in Victoria when the state government introduced the Victorian Workers' Wages Protection Bill 2007, which provided, among other things, that employers would be required to pay wages in the form of cash unless authorised by the employee to pay it in other forms, such as by electronic funds transfer.  The Liberal opposition resisted the bin and the government decided not to proceed with the cash payment requirement.

The purpose of this reference is not to make a judgement about the merits of the aborted cash payment requirement.  Rather, it's about the desirability of a state government enacting legislation on matters that most would think the federal act, and the Workplace Ombudsman, would be responsible for addressing.

The interaction between the levels of government is a source of great complexity.  We need an active period of continued reform.

Wednesday, November 14, 2007

Resource Adequacy and Efficient Infrastructure Investment

Chapter 11 of Competitive Electricity Markets


SUMMARY

Among the many issues with which electricity market designers have wrestled is how to ensure reliable and uninterrupted supply.  The concerns cover both short-run operations and longer-term investment adequacy, the issue on which this chapter is focused.  Electricity is jointly supplied to the whole community, has virtually no storage capabilities, and faces a peaky demand with little capacity or desire of consumers to respond to excess demand (and hence price surges) by reducing their demand.  In addition, it is subject to political oversight of prices and many facets of supply.

Many have argued that as a result there will be "missing money" in the market and that we must, therefore, have a dual market for electricity generation, covering energy on the one hand and capacity on the other.  Similar issues are present with electricity transmission where virtually all markets involve forms of regulated supply.

This chapter finds that a reasonably efficient market has been achieved in Australia without regulation of generation.  The outcome, which is not without some fragilities, has been due to generally less government intervention than seen in some other markets, with a higher reserve intervention price, less distortive consumer price caps, and a genuine level of retail competition that provides good market signals for new capacity.


1. INTRODUCTION

A key debate surrounding electricity markets remains the general question of resource adequacy -- i.e., can we leave investment in long-lead time and long-lived assets, producing a product essential to every other part of the economy to the chaos of a free market?  Many commentators, indeed many market designs, promote capacity obligations to underpin a certain amount of generation investment regardless of energy price signals.  These designs, in turn, provoke great debates as to whether they are themselves efficient, or are achieving their objectives, i.e. whether the new investment is sufficient.

The notion that energy-only markets cannot provide adequate reliability is most directly addressed within a robust theoretical framework by Stoft (2002), though it derives from the concept, developed by Boiteux (1949), of electrical energy being two goods:  reliability and immediate power.  Oren (2000) has also supported a form of capacity payment as well as an energy market, though as a second best approach in light of a seeming inevitability that governments would always intervene in this market to prevent very high prices.  Within Australia, Simshauser (2006) has been an active proponent of capacity markets.

Caramanis (1982) was an early advocate of an energy-only market and demonstrated the conditions under which this could operate.  He and others looked to the removal of government regulations on pricing and plant development to ensure adequate investment in new capacity.  Cramton and Stoft (2006) cite Joskow (2006) in defining the conditions that prevent markets from operating to provide optimal capacity when it is needed.  Joskow says:

The problems include:  [1] price caps on energy ...[2] market power mitigation mechanisms that do not allow prices to rise high enough during conditions when generating capacity is fully utilised ...[3] actions by system operators that have the effect of keeping prices from rising fast enough and high enough to reflect the value of lost load ...[4] reliability actions taken by system operators that rely on Out of Market (OOM) calls on generators that pay some generators premium prices but depress the market prices paid to other suppliers, ...[5] payments by system operators to keep inefficient generators in service due to transmission and related constraints rather than allowing them to be retired or be mothballed, ...[6] regulated generators operating within a competitive market that have poor incentives to make efficient retirement decisions, depressing market prices for energy.

All of these problems represent market corruption by the regulatory authorities.  In essence, all of them are measures taken to avoid having price undertake its conventional role of determining what is to be supplied to the market.  They represent either a mistrust that price will offer the correct signals or that allowing the necessary prices to be visible will spark political concerns.

Reviewing the UK market which has had experience of both a capacity payment and the current NETA energy-only market, Roques et al. (2005) are neutral between the two.  They argue, however, that the current UK balancing mechanism which has two prices (unlike Australia's single pool price) mutes signals and should be changed if an energy-only market is to operate effectively.

This chapter examines the concerns about resource adequacy in the context of the "energy-only" Australian National Electricity Market (NEM).  It argues that the NEM has worked well.  Prices have remained among the lowest in the world, reliability has been maintained, and the market has produced new generation investment of the magnitude, type, and timing that has been appropriate.  These results point to the superiority, at least in the Australian context, of an energy-only market approach that operates without the potential distortions that separate capacity payments bring.

Key reasons for this success include a relatively high wholesale reserve price at $A 10 000/MWh.  In the US, price caps are set at much lower levels of $400 in California and $1000 in New England, Midwest, New York, PJM, and Southwest.  ERCOT is at $1500 and scheduled to increase to $3000 in 2009.

There are other features that have contributed to the NEM's energy-only market success.  These include a relatively unfettered retail market that has allowed robust retail competition which provides appropriate market signals.  In addition, the market design includes a transparent and flexible bidding system, including the integration of offers for frequency control and other ancillary services with energy market bids.  The bidding rules allow multiple- and short-timeframe changes.  Although there are certain constraints on generators' actions in this regard, these are designed to prevent a generator bidding erratically to destabilise the market and impose costs on competitors.  This is further discussed in Section 4.3.

Even though the Australian market is one of the most lightly regulated in the world, it has its fragilities.  These stem from actual or potential government intervention.  They include:

  • Will provisions for intervention when short-term supply is judged to be inadequate result in a dual market, depress some prices and deter new investment in capacity?
  • Are all government generation investments genuinely commercial and, if not, will this deter new private investment and reduce capacity by more than is created?
  • How are we to cope with greenhouse issues which present a risk and some reality of carbon tax/trading schemes?

These matters are discussed in the context of the NEM, its history market structure, and outcomes in terms of prices, supply productivity, and reliability.

Also addressed are the more intractable problems that seem to be present in ensuring adequate investment in transmission in view of its features as both a competitor and a vehicle for generation.  The chapter explores measures to facilitate efficient transmission investment without central planning.


2. MARKET HISTORY AND OUTCOMES

2.1. SIZE AND NATURE OF THE AUSTRALIAN RETICULATED ENERGY MARKET

The Australian National Electricity Market (NEM), now covering all jurisdictions apart from Western Australia and the Northern Territory and close to 95% of consumers, has been in operation since the late 1990s.  It is a market that has some government and regulatory intervention:  much of the industry remains in government ownership;  some retail caps continue in place;  there is regulatory uncertainty regarding environmental conditions attached to new generation plant;  and there are seemingly endemic debates that precede new transmission developments.

Electricity dominates reticulated energy supply, though gas is also important both in its own right and as a fuel for electricity (gas accounts for about 8 per cent of generation).  Figure 1 shows the market profile of Australian jurisdictions.


2.2. THE REFORMS OF THE 1990S

Historically, Australian electricity supply, like that of most European countries, was reserved for government ownership.  This grew up partly because of concerns about natural monopoly that under private enterprise might exploit customers, partly because electricity (and gas) was seen as part of the "commanding heights" of commerce that only government should control.  In addition, production and supply of electricity was considered to require a level of coordination than many in politics thought it impossible for competing producers to accommodate.

In 1992, Australia's electricity industry comprised seven jurisdictionally based integrated utilities that had total control over generation and sales within their respective states.  Competition from other suppliers and retailers was illegal.

Fig. 1.  Australian energy market -- Consumption by state.Note:  Gas consumption has been converted from PJ to GWh.


As in a great many countries, the early 1990s saw an increased awareness in Australia of the shortcomings of the integrated electricity industry's efficiency.  A better appreciation developed of the nature of the industry.  This included a realisation that the industry need not operate as an integrated unitary monopoly, and that some considerable economies were being delivered in the England and Wales electricity market, the previously integrated nature of which had been the blueprint for the separate Australian systems.  On top of this, private ownership was being recognised as providing efficiency premiums over government-owned systems, not only in the newly privatised England and Wales industry but also in the mainly private systems that had long been standard in the US.  Formal reports by government and private economic policy institutions [e.g. Industry Commission (1991);  Institute of Public Affairs (1991)] lent weight to the evidence of inefficiency in Australia compared to elsewhere.

There was also a rare level of political consensus developing in favor of greater competition as a means of improving Australian economic outcomes.  A major report (National Competition Policy, 1993) had led to the agreement by the federal government to provide additional funding of the state governments on condition that the latter structurally separated the parts of their network industries that were natural monopolies from those where competition was possible.  This was to be followed by the opening up of their local markets to competition.

Electricity was the industry where these conditions were most obviously present and was singled out for particular attention.  Unbundling the monopolies meant dividing each of the single state government generation and retail businesses into rival firms.  It also meant requiring transmission systems to be opened on the basis of non-discriminatory access and with generators being scheduled on the basis of their bid offers.

An important factor in the evolution of the industry into a competitive market was the parlous nature of state government finances in Victoria and South Australia after a period of barely restrained expenditure increases.  In Victoria, the consequent level of debt provided an incoming Liberal (conservative) government with a justification for pursuing privatisation, which is never a politically popular course in Australia.  The Victorian government's most valuable asset capable of being privatised was the electricity industry.

In privatising the electricity industry, the UK model provided a guide.  In advance of the federal government's requirements to do so, the state government first disaggregated the electricity monopoly to bring about structural separation of the generation, transmission, and retail/distribution functions, and to ensure multiple competitive providers for generation and retailing (which was left with distribution but with a clear administrative separation).  The natural monopoly poles and wires businesses were regulated under a UK-style price setting regime.


2.3. AUSTRALIA'S MARKET DESIGN

The Australian National (1) Electricity Market was guided by, but also avoided some of the mistakes of, the UK's original gross pool design.

Like the UK, it benefited from historic government ownership by allowing a step-wise transformation without excessive compromise to protect legacy positions.  Unlike the UK, however, the federal system of government, with states responsible for energy, presented significant challenges.  Nevertheless, thanks to a rare alignment of state desires and federal threats and funding, the NEM did form in 1998.

The key starting advantages over the UK centralised mandatory pool were:

  • A competitive generator ownership structure;
  • A purist "energy-only" market design, without capacity payments and with selfcommitment without uplift compensation;
  • A degree of locational pricing through market zones or "regions" without constrained uplift payments;
  • A five-minute, "real-time" price, with re-bidding allowed up to the point of dispatch;  and
  • Transmission planning and operation separated from the independent market/system operator.

Other key features of the NEM included:

  • the separation of monopoly networks from retail and transmission with the networks operations (and most augmentations) funded by regulated charges on customers;
  • a phased introduction of retail competition and associated vesting contracts;  and
  • a "VoLL", or wholesale price cap, approaching the true cost of consumer interruption.

The "pure" nature of the energy price, i.e. unadulterated by forms of uplift, has ensured that generators and retailers trade an identical commodity, and can easily deal in the forward market (see Fig. 2).  It leaves each of the various players -- retailers, customers, and generators -- with their own responsibility of ensuring their ongoing viability and profitability.  The NEM's forward markets have achieved quite reasonable turnover and liquidity considering the small physical size, challenging claims that a gross pool design limits forward market participation.  Indeed, the Australian market, though based on a pool and spot price, is fundamentally one of contracts, which are settled on a contracts-for-difference basis.

Fig. 2.  Market design.


Whilst the advantages of locational pricing and energy-only markets are well discussed in the literature, some other less well-known features of the NEM's dispatch and pricing process have equally contributed to its success.

The five-minute pricing and dispatch cycle allowed effectively real-time balancing of supply and demand, with prices non-firm until the moment of dispatch.  This permits simplification of electricity price to one value, the energy price, to which the supplier and consumer are equally exposed.

  • The market/system operator makes no inter-temporal dispatch decisions.  There is no day-ahead pricing nor central commitment.  Thus, there is no market exposure to MSO forecasting error and the commensurate uplift charge.
  • "Ancillary services" are limited to balancing the market within a five-minute dispatch cycle, where generators and interruptible customers are paid for the service of providing some contingency spinning reserve to control frequency until the next cycle.  The power system only needs a small volume of reserve for five-minute balancing, about 1.5% of underlying demand, and there are many competitive providers.  Turnover in that market is about 1% of that in the energy market.  These services are largely supplied on a spot bidding system (which is pragmatically linked with the general energy bidding) funded by a separate "causer pays" charge.  Even these have common market prices that can be hedged, although the low and stable price has brought little demand for this.

Rather than having various forms of central decisions and administered payments to maintain an orderly power system -- for example, centrally guaranteed day-ahead pricing for demand-side response and slow-start committing units -- the Australian system leaves the responsibility for taking these decisions to providers who do so in the light of their own capabilities and commercial options.  If, for operational reasons, they physically need to lock in decisions 24 hours ahead, they can do that contractually and it does not need to be underwritten centrally.

There are many problems in Market Operators making forward decisions, including complexity, gaming opportunities, perverse incentives against flexibility, etc., but the most obvious problem is error.  Australian electricity demand is notoriously unpredictable, a day-ahead Market Operator who predicts a high demand, will set high day-ahead prices and be embarrassed when the demand fails to eventuate.  Moreover, the artificially high prices will discourage demand that is clearly suppliable.

The move to real-time self-commitment was met with skepticism by those who prefer others to take the forecasting risk.  But after the decision was made in the mid-1990s, the commercial rewards available by ensuring physical flexibility and speed brought entrepreneurial reactions.  Peaking units that for decades had demanded from the operator a minimum of five hours notice of recall discovered ways to start within two.  The same is also true for the relatively insignificant suppliers from the demand-side.  And such improvements in flexibility, in addition to rewarding the supplier, also provide a cost saving bonus to the consumer in general by putting downward pressure on prices.

The success of the NEM, notwithstanding it being clouded by a less than minimal set of interventions by governments, appears to corroborate initial analyses that the electricity market is not markedly different from other markets.  To be sure, there are externalities, and a failure by one party can have repercussions across a great many others, but this is also true of many other markets with independent agents in the supply chain.  And if the instantaneous nature of electricity is unique, other industries' supply characteristics are converging toward this as modern production methods are characterised by considerable economising in inventories and other buffers.


2.4. MARKET STRUCTURE

The history of state government-owned monopoly allowed governments to design a structure alongside a market.  This implemented the mid-1990s prevailing view of an ideal industry structure, with numerous generators, stapled retailer/distributors, and large monopoly transmission companies.  Since that time, the notable new trends are:

  • Self-imposed separation of network and retail businesses;
  • Aggregation of network businesses, including distribution and transmission, with regulatory blessing;
  • Aggregation of retailing without much regulatory acceptance;  and
  • Vertical integration of generation and retailing despite regulatory resistance.

2.4.1. Generation

Despite numerous ownership transactions, the generation sector remains about as aggregated as it was when first split by the governments (see Fig. 3).  In a national sense, there is a highly competitive market in terms of capacity, though at particular times a supplier can find itself with market power.  The market is more concentrated when viewed in a locational sense.  In particular, Tasmania is dominated by one government-owned generator, and South Australia's largest generator comprises one power station that has about 40% of local capacity.  Although there is a fairly robust interconnection capacity, supply between the regions is neither infinite nor risk-free.  But the almost limitless opportunity for new power stations in the NEM presents a very real and effective new-entry threat to most locations.

Fig. 3.  Generation ownership:  Capacity by market share.Source:  ESAA (Energy Supply Association of Australia) (2006) Electricity Gas Australia 2006.


Whilst the governments created a generally competitive generator structure, they faced union resistance against privatising.  Only Victoria and South Australia were able to consummate the process.  Queensland and NSW have held their generators on a "forthcoming auction" footing for a decade.  This makes planning for the generators themselves difficult, whilst also presenting a sovereign risk for private investors who fear that the government-owned competitors may act non-commercially.


2.4.2. Retail businesses

The original retail franchisees were initially stapled with ring-fenced regulated monopoly distribution businesses over the same geographic area.  This was initially feared to be a barrier to retail competition, but it subsequently became irrelevant as private owners realised that the two activities were very different, and chose to specialise by de-merging.  This has also occurred with the state based retailer/distributors, informally in the case of the largest one, NSW's EnergyAustralia, which has a retail alliance with the private generator/retailer International Power, and formally for the Queensland businesses, the retail arms of which have been privatised.

At the same time, there was some retail aggregation (by government decision in NSW and driven by commercial pressures in Victoria).  This reflected a view that the originally estimated minimum competitive size of around 0.5 m customers for major retailers was too low.  Despite that, many niche retailers with far fewer customers have profitably entered.

The market shares of major retailers are illustrated in Fig. 4.

Fig. 4.  NEM major electricity retail market shares (by customer numbers).Source:  UBS (Union Bank of Switzerland), 2006.


The big retailers have tried some further tactics:  going "dual fuel", selling electricity and natural gas and, more controversially, merging with generators to form vertically integrated energy businesses.  This was challenged by the competition regulator as limiting market entry into either generation or retailing;  however, the regulator's position was overturned in court.  Most retailing is now or will shortly be vertically integrated in some form with generation, yet by all measures, competition continues to strengthen at each end.


2.4.3. Distribution businesses

Specialist regulated infrastructure owners began to accumulate network businesses.  As they are not by definition exposed to competition, the regulator has had no objection.  However, the business models of the enlarged firms have proven especially challenging for price regulators to monitor efficient costs.  Economic regulation will need to either become more intrusive -- such as the US model -- or transform to another model entirely where actual costs are less relevant.


2.4.4. Transmission and market system operator (MSO)

As a residue of the state-based system, the NEM has five transmission providers:  one per state.  This is clearly inefficient and state-owned transmission systems are often criticised for using their influence to favor intra-state over national solutions to transmission construction.

The states did agree to combine the market/system operator to one company, the National Electricity Market Management Co (NEMMCO) that operates all the transmission systems and generators.


2.4.5. Developments in market structure

Deregulation having shaken the ossified system up, we are now seeing the pieces reassembling.  There is certainly the move toward retailing and generation forming alliances and cross ownerships.  This reflects the importance of risk minimisation, especially since the price cap is set at a relatively high $10 000/MWh.  Even so, there is no move toward a full integration and few consider this to be likely -- in this respect, something similar to the oil industry is taking place with firms adopting a spectrum of supply acquisition ranging from spot to ownership.

At the same time we are seeing a voluntary divorce, which nobody envisaged, between distribution and its formerly linked retailing activities -- this is also happening, in a somewhat surreptitious way, with the state-owned outfits, which are also forming marketing alliances with generation.

This is driven by risks and synergies.  The fact that retailers also own some generation does not undermine the market since, even without any requirements for Chinese walls, retail buyers would not favor their affiliate.  To do so would jeopardise their abilities to contract with non-affiliates and would thereby undermine their abilities to perform a key function -- risk management.  In this respect, there is an analogy with the motor industry where assemblers buy components from each other, including for new models, but the component suppliers would not reveal confidential information to affiliates, because if they did so they would lose all third-party business.


3. MARKET OUTCOMES

3.1. GENERAL EXPERIENCES IN PRODUCTIVITY

In the US, there is little evidence of private ownership and other divestment, bringing about increased efficiency.  Bushnell and Wolfram (2005) estimate at best a 2% improvement in fuel efficiency.

Others examining industries that were previously largely government-owned -- for example, Newbery and Pollitt (1997) -- find considerable gains with respect to privatisations in England and Wales.  Similarly Fabrizio et al. (2004) found, "The performance gain of an IOU plant in a restructured regime relative to MUNI plants over the same period is ...on the order of 15% reductions in employees and 20% reductions in nonfuel expenses."

Australia's experiences show improvements across a range of indicators:  industry productivity, reliability, new investment, and prices.


3.2. PRICE OUTCOMES

In the UK, the NETA market model brought a claimed 15% price reduction (on top of the 30% real reduction in 1990–2000). (2)  Australia saw prices for larger customers fall 28% in 1996–1999 according to a number of surveys.  Prices for smaller customers were reduced by regulators.

Although real prices in Australia have edged up recently, they remain considerably below the 1994 pre-reform levels.  The easiest and least ambiguous measure is wholesale prices.  Compared with a notional $40/MWh (about $50 in today's money) that was the transfer price between the affiliated branches of the state-owned business prior to reform, spot and contract prices have been as shown in Table 1 and Fig. 5.

Table 1.  Average prices $/MWh

YearNSWQLDSASNOWYTASVIC
1998–199933.1351.65156.0232.3436.33
1999–200028.2744.1159.2727.9626.35
2000–200137.6941.3356.3937.0644.57
2001–200234.7635.3431.6131.5930.97
2002–200332.9137.7930.1129.8327.56
2003–200432.3728.1834.8630.8025.38
2004–200539.3328.9636.0734.05190.3827.62
2005–200637.2428.1237.7631.0956.7632.47
2006–200734.8324.4239.2435.2539.9236.29

Source:  NEMMCO


Fig. 5.  Regional quarterly spot and future prices.Source:  AER (Australian Energy Regulator), December 2006.


The Australian Energy Regulator (AER) analysis of flat contracts shows no general upward movement.


3.3. CHANGES IN AUSTRALIAN OPERATIONS' EFFICIENCY LEVELS

Underpinning these real price falls have been large increases in efficiency.  For example, in Victoria the generators since being moved into a more competitive setting (following corporatisation in 1994 and their subsequent privatisation) have seen their workforces shrink from about 11 000 to the equivalent of less than 2500.

South Australia, the other state that has fully privatised, saw similar improvements in generators' labor productivity.  Government-owned generators also improved and even Queensland (partly private-owned), which had long been better managed than other states' industries, saw a doubling in productivity.  Figure 6 illustrates the different state outcomes.

Fig. 6.  Generator Labour Productivity (GWh/employee).Source:  ESAA, Electricity Gas Australia 2006.


Improvements were also seen in the level of reliability of the power stations, especially in Victoria and NSW, the two state systems that were previously performing poorly (see Fig. 7).

Fig. 7.  Power stations' availability to run.Source:  ESAA, Electricity Gas Australia 2006.


Improved productivity was registered in other areas of the industry, including the regulated distribution businesses.  Again, this was most marked in the privatised systems in Victoria than in the government-owned systems.  It seems likely that part of the reason for this is the closer commercial focus of private businesses.  There is also some residue of political appointments to the corporatised businesses' boards.  Ten years ago, the CEO of the largest of the NSW distribution businesses attempted a reorganisation to capture the same labor-saving gains as his counterparts in the Victorian privatised businesses.  Its government-appointed board of directors responded by sacking him.  This has become less frequent, though in November 2006, the NSW State Treasurer sacked the long-serving Chairman of the state's transmission business allegedly because he would not agree to an appointment of a politically favored director. (3)

Figure 8 illustrates the trends in terms of customers per employee.

Fig. 8.  Distribution businesses:  Customers per employee.Source:  ESAA Electricity Gas Australia 2006.


3.4. NEW INVESTMENT OUTCOMES

Even though the competitive environment has meant low prices, windows have opened where firms have spotted (or thought they spotted) opportunities to expand.  Though the presence of government-owned facilities may well be distorting new provision -- a point that is addressed later -- the market has, to date, not only produced lower prices but also resulted in capacity increases in line with demand.  Table 2 shows new capacity.

Table 2.  New capacity 2000–2006

StateCapacity (MW)TypeOwnership
RedbankNSW150CoalPrivate
BairnsdaleVic92GasPrivate
ValleyPowerVic300GasPrivate
SomertonVic160GasPrivate
LavertonVic312GasGovt.
Loy YangVic236CoalPrivate
OakeyQld282GasPrivate
MillmerranQld852CoalPrivate
Swanbank EQld360GasGovt.
Tarong NQld450CoalGovt./private
Kogan CreekQld750CoalGovt.
BraemarQld450GasPrivate
HallettSA220GasPrivate
Pelican PointSA500GasPrivate
LadbrokeSA80GasPrivate
QuarantineSA100GasPrivate

Source:  ESAA, Electricity Gas Australia 2006.


In terms of average costs of new electricity increments on the eastern seaboard, coal is $35–$40/MWh and gas about $45 though this is based on a gas price that is at present less than half of that in the US.  Capital costs are illustrated in Table 3.

Table 3.  Capital costs of new plant

Power stationProponentStateCost in A$ millionMWCost in A$/kWType of plantFuelComments
CockburnWestern PowerWA2502401042 CCGTGasCompleted Nov 2003
BraemarERM and Babcock BrownQld340450756OCGTGasUnver construction
Kogan CreekCS EnergyQld12007501600ST (dry cooled)CoalUnder-construction (Includes coal mine development)
Kwinana NewgenERM and Babcock BrownWA4003201250CCGT/STGasUnder construction (Includes 160MW ST)
Laverton NorthSnowy hydroVic150320469OCGTGasUnder construction
KemertonTransfieldWA250260962OCGTGasUnder construction (Includes gas connection)
WagerupAlintaWA245324756OCGTCommitted

Source:  ACiL Tasman for NEMMCO, October 2006.


For the CCGT plant, the cost $1000/kW to $1250/kW in 2006 represents a considerable increase from that which was estimated at under $900/kW in 2005.  The increase is attributed to temporary cost increases in steel and other materials as a result of a surge in demand in China and India.  For coal-based generation, a cost of about $1250 is indicated for Kogan Creek if there were no mine development costs.


3.5. THE DROUGHT OF 2007

Australia, a flat and dry place, has never had much hydro in its generation sector (less than 10% of energy production) and therefore its power prices were never considered sensitive to rainfall.  The first months of 2007, however, proved that perception wrong.  A severe drought affected the entire eastern seaboard and curtailed not only hydro generation, but also a number of inland coal-fired plants requiring cooling water.

The impact of this disturbance on spot and forward prices during early 2007 was quite dramatic, with both approximately doubling in a space of 3 months.  This is easily explained in the energy-only market, as the withdrawal of "free" hydro and cheap coal energy must be replaced, even at offpeak times, with a more expensive gas turbine plant.

Understandably, there is some political repercussion, principally from advocates of those large customers who have to purchase new supply contracts.  Fortunately, most customers, including small ones have contracted long-term well before the current situation, and, in turn, their retailers have contracted with generators.  Thus, the political pressure is not overwhelming upon governments and regulators, who, at least as of May 2007, were not undermining the market.

At the same time, the water issue is very sharply biting into the profits of those generators affected by it.  They are demonstrably taking on innovative responses, such as purchasing high-priced water, and investing in previously uneconomic conservation.  All this is occurring without any regulatory intervention or "guiding hand", beyond the clear profit motive of such a high opportunity cost.

Figure 9 illustrates the price surge that had taken place.

Fig. 9.  Flat forward price curve -- All regions.Source:  AGL.


Forward prices from 2008 are starting to return to more normal levels, though they remain somewhat higher.  This may be due to concerns that the current drought is part of a "global warming" pattern and uncertainty regarding future carbon taxes as well as some tightening in supply.


4. RELIABILITY AND CAPACITY REWARD

4.1. RELIABILITY -- ACTUAL PERFORMANCE

As seen in Table 2, considerable new capacity has come about since the market was conceived, roughly in parallel with the national growth in demand. (4)  Previous over-supplies in New South Wales and Victoria have eroded, whilst previous under-supplies elsewhere have been remedied and, in Queensland's case, reversed.

Actual performance has been excellent in terms of "reliability", as the NEM defines it, meaning the overall adequacy of generation supply.  (Load losses due to other causes, such as local distribution network interruptions or transmission stability problems are not avoidable through generation investment and therefore excluded.)

The first eight years of the NEM have seen the following percentages of demand interrupted due to lack of reliability:

  • New South Wales, 0.0001%
  • Queensland, 0%
  • South Australia, 0.0025%
  • Victoria, 0.0101%. (5)

In all cases, except Victoria, this would be considered a very successful reliability outcome for a first-world power system, and immaterial compared to typical local distribution outage losses of around 0.02%.  The Victorian amount in turn is derived entirely from a power station strike in 2000. (6)


4.2. THE RELIABILITY STANDARD

A forward-looking reliability standard is used for the NEM based on a minimum level of projected reserves for the year ahead as defined by the Regulator. (7)

Where this standard is deemed to be breached in the short to medium term, NEMMCO is obliged to intervene in the market.  As with other such interventions, this carries the potential, if used unwisely, to undermine the market reward function -- a matter discussed in Section 4.4.

To date, this power in Australia has been used sparingly, largely because the minimum reserve standard is softer than that in most other jurisdictions.  The NEM's standard is an output-based standard:  a measure of customer energy actually at risk.  This is set at "an expectation of no more than 0.002% of energy unserved over time."  It means that no more than 1 in every 50 000 light bulbs should go out due to generation shortfall.  Or, to put it another way, customers will suffer, on average, no more than 10.5 minutes per year of interruption.

This compares with an average 100 minutes per year interruption in Australian suburbs due to local distribution faults.  The requirement was created based on customer surveys which suggested the typical customer values reliability in the order of $20 000 to $30 000/MWh. (8)  Considering the cost of providing peak generation capacity to meet the extreme peak of the demand shape, the cost of supplying the last 0.002% is actually greater than its customer value.

Using power system simulation to convert this unserved energy target to a deterministic reserve margin for a one in two years peak is equivalent to around 10–15% reserve margin.

The resultant standard compares with standards as high as 25% in many jurisdictions around the world, standards which, if worked backwards through the simulations, would mean that customers energy targets unserved are as low as 0.0002%, or about 1 minute in a year, and they are valuing reliability at $100 000/MWh?  Kema Consulting (2005) notes that the Australian approach is at the low end of international standards.

Were those levels of forecast reliability demanded of the NEM, a much higher price cap would have been required.  Indeed, it may be that any energy-only market will struggle to deliver those reserve margins, not because the energy-only market has failed a prerequisite, but that it is in fact simply correctly demonstrating that customers do not value reliability so highly.


4.3. THE PRICE CAP AND GENERATOR BIDDING FREEDOM

Discussion elsewhere in this chapter emphasises the need for a genuinely high price cap for an energy-only market like Australia.  The notion of a price cap reflects the view that electricity has major differences from other markets in view of the instantaneous nature of the commodity, and the physical inability to link customers immediately to its price.  Setting a price for such interventions is designed to allow a very large pain to those ill-prepared (and conversely a great opportunity for those who can help), but one that does not immediately result in a systemic financial collapse of market participants.

The current $10 000/MWh that has been in place since 2002 seems to be facilitating an adequate level of investment and relatively low customer prices.  The price cap is reinforced by another mechanism, the "Cumulative Price Cap" which is set at $446/MW for an average of prices over a rolling week.  Price is then capped at $50 offpeak and $100 peak.  The rolling price cap has not been reached in the period since 1998 when the market commenced, though it has got close on a couple of occasions in situations which were not actually threatening the market's financial collapse, indicating that it is too low.

Whilst a generator market cap is defensible as a measure to prevent market financial collapse, if the objective is instead driven by consumer price protection, then the energy-only market is probably doomed as consumers or their agents will prefer to ride upon this much cheaper protection than invest in supply.

A market cap is always a departure from a pure market approach, and the lower is the cap, the more vulnerable the market becomes.  In Australia's case the $10 000/MWh cap is considerably below most estimates of the Value of Lost Load (over $30 000/MWh.).  Even so, it appears that prudent retailers seek to insure themselves to the very peaks of their forecast demand and generators invest well before any shortfall manifests itself.  Retailers' apparently irrational prudence is driven by the fact that generators have the freedom to exercise their market power.  Indeed, it is not uncommon for large portfolio generators to shadow the $10 000/MWh price cap for as much as 20% of their capacity and, therefore, high prices may occur well before actual interruption.  What is even more impressive is that there is no legal or political sanction for this behavior, so it constitutes a genuine threat to those who expose themselves.

During 2001, a "good faith" rule was inserted into the market.  This is purely a mechanism designed to prohibit intentional deception.  In theory, in an energy-only market, a generator can confuse its competitors by changing its bids at the last minute.  This rule prohibited last-minute changes where its own or market conditions were unchanged, but in no way does it attempt to limit their market power.  Indeed, acceptable public reasons for last-minute bid changes include "change in market price/volume trade off."  After three years of the rule being in place there have been no prosecutions under it.


4.4. CAPACITY REWARD AND INTERVENTION

Uncertainty about the adequacy of market remuneration has led to questions about the appropriate incentives to invest in new generation.  These questions spawned several answers.

With the NEM as a pure energy-only market, reliability sufficient to satisfy the many stakeholders is a likely outcome.  Of course, Australian governments are no less fearful than others of the unknown in relation to blackouts, and this adds a complicating set of regulatory factors.  In the NEM, the regulatory responses are centered on the concept of Reserve Trader.  This overrides the market supply when the market operator decides that there is insufficient supply forthcoming from the market in the foreseeable future.  The problem, other than that of explaining how a public sector body is more likely than the market to predict supply and demand conditions, is that the Reserve Trader as a concept has internal inconsistencies.

If the public agency (called NEMMCO in Australia's case -- the market/system operator) considers there to be insufficient supply, it must contract for that supply.  In doing so, it must either:

  • move into the market and contract supply at a higher price than the supply was able to get from real customers;  or
  • build its own capacity.

In an attempt to avoid undermining the market, NEMMCO is limited to contracting for reserves no further than about six months ahead.  Due to practical difficulties, this largely excludes new entrant generators.  Thus, it is likely to only get mothballed supply or demand-side opportunities, and it will contract for this by providing a higher price than is available in the general market.  While the consequential price increases may not be serious, they do raise costs to customers, thereby defeating the purpose of the market model.

More than this, the process will encourage firms or demand-side suppliers to hold back offering contracts to the market in the hope that the government will offer them a better price.  While such data is confidential, it is likely that several customers contracted in this way during 2005 had previously participated in the market for a market-based return.  This has a snowballing effect in creating even greater apparent shortages and can start a process that will unwind the market itself.  An example of such an outcome has been reported by Joskow (2006):  "In New England, the amount of generating capacity operating subject to special reliability contracts with the ISO has increased from about 500 Mw in 2002 to over 7000 Mw projected for 2005 (ISO-New England (2005), amounting to over 20% of peak demand."  Such a proportion of the market subject to administration must start to undermine the commercial market as a whole.

If the reserve power agency were to hold its own capacity to be used only in special circumstances [e.g. when the price exceeds the spot market cap (VoLL) or an agreed period of time], this is simply an added insurance on VoLL and a drain on the market.  Of course, if the reserve capacity were to be used more liberally than this it would undermine investment incentives and contribute to supply shortages in the future.

Another answer to capacity shortages is a capacity payment offered in addition to the energy price.  Some incumbent Australian generators, dismayed at the very low prices they are seeing, favor this.  Against this, it has to be recognised that if additional payments are made for supplying energy for one set of reasons, compensating reductions will occur with related payments as firms jockey for revenues that cover their costs.  Moreover, experience has shown that where supply is ample, the capacity price will be bid down perhaps to negligible proportions.  In this respect, Adib, Schubert, and Oren in Chapter 9 of this volume discuss what they call the "bipolar nature" of capacity markets with price being zero where capacity is ample and infinity where it is short. (9)  Where there is already some market imperfection, as appears to have been the case in the original England and Wales market, the capacity payments may become high as firms use market power to bid them up.

A single price or the addition of a capacity charge as the most appropriate way forward must, however, remain one of the open questions in market design around the world.  In California, the issue is being reviewed once again but the California Public Utilities Commission staff (2005) is very much in favor of a capacity charge.  They argue that electricity is different because of its near-total demand inelasticity -- the inability to selectively supply people -- and thus have a differentiated reliability;  and they note that a price cap, which they see as inevitable, also means less than ideal conditions for individual risk management.

This does not seem to be borne out by the experiences of the energy-only market that is in place in Australia.  An energy-only approach appears to be superior to all the refinements that have been tried elsewhere.  It places the onus on commercial parties to cover their future positions in the knowledge of their customer bases and future demand shifts.  Suppliers and retailers develop their own reserve trader through contracting in ways that give them adequate insurance for mistakes and uncertainty.  It has served the Australian market well in terms of incentives.  New capacity in generation has kept pace with requirements.

Among the measures that have ensured the energy-only market operates successfully in Australia are a relatively high reserve price of $10 000/MWh, which places considerable pressure on retailers to forecast and balance demand accurately and to contract for their customers' future needs.  This, in turn, provides incentives for generators to deliver the necessary capacity.  Further assisting this is a relatively open and active retail market and relatively unimportant customer price caps (soon to disappear entirely).  All major customers have been free to seek their own retail supplier for many years, and the household and small business consumers are likewise mainly freed from dependence on their original retailer.


4.5. THE ROLE OF THE ELECTRICITY RETAILER

4.5.1. Retail competition

A competitive retailing system is a bridge between the producer and the consumer and provides, by seeking out customer needs and arranging for their supply, important signals for new production and specific sorts of new production (electricity that is peak, offpeak, green, etc.).  One (imperfect) measure of retail competition is the degree of customer churn.

According to Grey et al. (2005), in 2004, Great Britain, Victoria, and South Australia were the "hot" markets for retail switching, with only Texas in the US ranked in their next category, "active."  Littlechild (10) estimated the numbers of residential customers with non-incumbent suppliers as ranging from 43% in the UK and 33% in Victoria to very low shares in US states other than Texas (where the share was 24%).

August 2006, data for Australia indicates that 67% of Victorian and 27% of NSW customers had switched from their host retailers. (11)  Customers with a contract other than with their host retailer comprised 42% in Victoria and 18% in NSW.  In South Australia, 64% of customers had shifted out of the default contract (there was only one original retailer) by the same date.

The lower level of "churn" in NSW is due to two factors.  First, there is a mandatory insurance scheme for small loads.  Though this is being discontinued it places out of state retailers in a less favorable position to hedge against risk since the intra-state retailers have a lower de facto peak price.  In addition, the level of retail price cap bites earlier than in Victoria and South Australia, meaning that a larger proportion of residential buyers are, in effect, unable to obtain commercially a better deal than the government has mandated their retailer offers them.  Another feature of the NSW arrangements is that consumers are able to return to a standard tariff, should they wish.  Such fall-back tariffs offering a one way bet have unwound retail deregulation in a number of US jurisdictions.

Australia has seen the emergence of a number of new retailers, some of them very small, and in several cases their entry has been successful.  There are concerns that full retail competition can bring instability where retailers have taken unreasonable risk and then left the market leaving other retailers to continue supplying their customers.  This apparently occurred in Texas in 2003. (12)

The requirement of a retailer of last resort is certainly an area where public policy-making to protect the small consumer has the potential to unwind the proper forces of an energy-only market.  The Australian pool mechanism demands of all retailers quite onerous credit assurance for both pool and networks.  This has the potential to be inefficient, but can be overcome with voluntary settlement offsets with generators.  The credit requirements place pressure on retailers to ensure that they are prepared for price volatility.  This should mean that retailer bankruptcy is very unlikely, or that, rather than short-payment, it will be inability to get assurance that will lead to a retailer's forced exit -- which means it can be managed more effectively and the customer accounts are likely to be sold to a willing, and more prudent, buyer.

In the event that a retailer becomes bankrupt, Australia has a retailer of last resort for smaller customers who comprise half the market.  The liability is on foundation "host" retailers to absorb these customers.  The actual arrangements vary between the states.  In Victoria, the government allows the host to immediately replace their tariffs with a much higher price than the typical competitive level (10–20%).

In some respects a last resort retailer fulfilling contracts of a failed competitor is not different from many other industries.  For example, airlines will usually take up emergency cases of stranded passengers when a carrier goes bankrupt and ceases to operate.


4.5.2. Retailers as drivers of efficiency

As retail margins are only about 5% of cost, some are perplexed by the prominent role given to the retailer in the judgments about the liberalisation of markets and, implicitly, about how they correspond to consumer benefit.  A major push at one time was to have tariffs set on a "pass-through" basis.  However, retailers focused on customers and suppliers in a competitive situation ensure a sound alignment between the two.  Competition is, fundamentally, a discovery process, whereby the competitors set out to ascertain the needs of customers, where those needs are not well defined by the customers themselves.

Evidence of such poor alignment in the centralised system can be seen with the excessive priority on base-load seen throughout Australia, which led to a major surge in new peaking capacity once competition was in place.  This has meant a bonus of much better reliability at lower cost.  Competitive markets provide particularly strong incentives on retailers to search out the lowest-cost supplies and match these with customer demands.  This is particularly so in Australia's case where the wholesale cost of electricity can rise to $10/kW hour compared to its normal price of about 4 cents per kW hour.

With a "pass-through"-regulated tariff retailers would gain no benefit in seeking innovative and highly competitive supply contracts.  The economic benefit of such innovation would simply pass to the customer whilst the implicit costs, such as greater risk, would fall on the retailer.  The only incentives such a retailer faces to attain efficient supply would be artificial ones set by the regulator of the pass-through process.  These would always be out of date, out of touch with the customer and conservative.

One outcome would be that retailers supplying customers who may have a more peaky demand profile would not have an incentive to find suppliers who are the most efficient supplier of such a load shape.  They would also be indifferent in seeking out such customers rather than others with flatter load profiles.  The associated suppression of cost-reflective price variations is likely to rebound on the efficiency of the entire investment chain, including the highly capital-intensive sectors.

Retail competition also offers other benefits.  For example, it facilitates a variety of different product offerings.  Among these have been "green" power packages, obtainable by those prepared to pay a premium for this form of electricity supply.  It also reveals the extent of the voluntary demand for such products.

Competitive retailing has also meant experimentation with new marketing tools.  Victorian retailers have successfully experimented with direct debiting of customers' accounts and there have been experiments in combining energy with other retail activities.

There are clear dangers in overriding the forces of competition, dangers that intensify with the length of time the controls remain.  For retailers themselves, setting prices too low will require cross-subsidies.  Aside form their general inefficiencies, these will bring about an unraveling of the market balance because it will prove increasingly difficult for the regulators to set flexible prices which are cost-reflective and do not leave the retailer in a revenue deficit.

Financial distress among retailers ensuing from such price caps is likely to be an early manifestation of an impending crisis perhaps culminating in California-style collapse.  This aside, the price suppression involved in regulation distorts the signals for augmentation in new generation.  At best, this will bring inefficient balances between peak and offpeak and at worst, it will lead to supply inadequacies.

Many are keen to see "smart" meters being installed to allow time-of-day measuring of power use by small consumers who account for half of the load.  This would allow pricing for those using air-conditioners during peak hours to match the higher supply costs involved.  It would drive peak load reductions and correspondingly lower charges to other customers.  The overall benefit of this turns on the potential cost saving against the installation costs of the meters themselves.  These sorts of metering have not been very successful in facilitating load shaving in the large business markets which have long had the metrology and controls to facilitate this.  Experience suggests that regulatory interventions to force the pace of change should be subjected to critical assessment.


5. SOME KEY ISSUES AND FRAGILITIES

5.1. GLOBAL WARMING AND NEW GENERATION

Australia has perhaps the cheapest primary energy in the world available in major quantities.  Coal from Queensland and parts of NSW is abundantly available for conversion into electricity at $40/MWh virtually forever.  Brown coal in Victoria is available at a similar price.  These prices are less than a half of those in Japan and considerably below those of the EU and most of the US.  Coal at $40 is half the price of wind energy (the costs of which are flattered by its inherent unreliability) and the cheapest nuclear option is about 30% dearer including the (relatively low) disposal costs.  Figure 10 illustrates costs.

Fig. 10.  Electricity costs.Source:  Authors based on several sources.


A greenhouse tax would be a great equaliser.  Figure 11 illustrates the costs with a carbon tax or tradeable right set at the Stern Report's (2006) $A130 per tonne of CO2.

Fig. 11.  Costs of different electricity sources.


With such an imposition, natural gas becomes a bit cheaper than coal, though this might be offset by a rise in its price, which in Australia is less than half that of the US.

The big movers (or stayers) are nuclear and wind.  Wind on the assumptions given becomes cheaper than coal in Victoria and NSW, though its role can never be to supply more than about 10% of the load at almost any conceivable price and with the most heroic assumptions on future improvements.

Nuclear though assumes the leading position.  Uranium is relatively abundant and comprises only a small share of costs, the bulk of costs coming for plant.  Doubtless, these costs are also inflated by over-engineering to cater for hysteria over safety matters.  This, and the fact that relatively few new nuclear plants have been built in recent years, means that the price might even be reduced below the levels indicated by current studies.

So in a carbon-constrained world, there is a means of abundant and reliable electricity supply that will allow existing consumption at only a modest increase in costs.  However, even this is insufficient to provide the emission savings of 60% or so sought by the Stern Report.

Moreover, Australia has no advantage in nuclear.  Australia's advantage is in cheap fossil fuel-based energy.  Abandoning that advantage, even progressively, will not only mean far higher capital costs but also elimination of the nation's comparative advantage in energy-intensive industries.  It will, therefore, at a minimum, entail a considerable industrial restructuring.

Moving to the prospect of an energy tax or a tradable right to emit introduces a considerable uncertainty in new plant development.  It is notable that the new large-scale base-load coal plants in recent years have been built by government entities;  hence, the government is taking the regulatory risk of some ex post facto new imposition.  Greenhouse mitigating activity does infer some additional commercial risk, which may add yet a further uncertainty about future supplies.


5.2. GOVERNMENT OWNERSHIP

Over half of Australian electricity generation capacity is in government hands.  Although all government generation businesses operate under normal company law with directors that are independent, the fact that the directors are appointed by the state governments gives rise for some concerns regarding their independence from political processes.

In NSW, there are suggestions that the government generators are restrained from major new investments by a government conscious of previous excesses in development.

It has been suggested that the opposite problem prevails in Queensland, the state with the fastest-expanding load.  In the ten years from 1990, the state built only one major power station and its precarious balance of supply and demand was immediately revealed once the electricity market went live during 1998.  Shortages that had been hidden were immediately reflected in wholesale prices that were double those of the southern states.

Remedying this was essential.  And since Queensland, along with parts of NSW, probably has the lowest-cost abundant quantities of coal in the world, remedying this was straightforward.  Over the six years to the end of 2006, Queensland increased its electricity generating capacity by a quarter, adding 3300 MW, 60% of the new capacity within the Australian National Electricity Market.

As part of its initial catch-up in capacity, the government encouraged private investment to enter the market.  A Shell-dominated consortium built the 850-MW Millmerran power station in 2002.  That consortium also took a half share with the government's CS Energy in the 920-MW Callide C station that was completed a year earlier.  The 450-MW Tarong North, started in 2000 and completed in 2003, also had a mixture of government and private funding.  A further government-owned major major station was announced in May 2004.

Soon after entering the market, Shell clearly felt its investment had turned sour and steadily sold down its interest.  The final one-quarter share went for $US226 million in December 2003 to China Huaneng Group.  Perhaps the Chinese bought well, but the transaction valued investments that had cost some $2.2 billion at only $1.2 billion.

In this respect, the danger is that investments undertaken on non-commercial terms using government funds will undermine all investments.  Private sector businesses argue that the Queensland government, having enticed investment into base-load power, has then accepted non-commercial rates of return from the power stations it owns.

Some credibility to this claim has been given by statements by the Queensland Energy Minister that he sleeps easier if he has 25% surplus generation capacity.  However, a corollary of such a supply margin is a collapse in prices and in the value of assets.  Although there are relatively robust transmission links between Queensland and New South Wales, the NEM state to the south, spot prices in Queensland have been 30% lower.  And prices in NSW were themselves considerably reduced by the export of surplus power from Queensland.

Even so, the higher prices in NSW have encouraged the Queensland government to seek an augmentation of transmission capacity to take advantage of those prices.  But state-owned NSW generators see their market as already being infected by surplus Queensland capacity and low prices from oversupply.  If there is a loss of profits by private investors caused by government accepting sub-commercial rates of investment return, this risks creating a vicious circle under which all future investments will be state funded.


5.3. ENSURING ADEQUATE TRANSMISSION CAPACITY

Among the most contentious issues have been and remain the ability to supply the right amount of transmission capacity.  Many have argued that transmission should be provided without the need for this to be fully commercial in the sense normally required of interventions throughout the economy.  In this respect, positions have changed little over the past decade.  Thus Hogan (1998), although injecting a market-type mechanism into transmission provision, saw that "Grid expansion and pricing would continue to present a need for regulatory oversight, but the existence of workable transmission congestion contracts would substantially simplify transmission investment decisions." (p. 28.)

In Australia, London Economics (1999) argued that short-run congestion could recover at most 25% of transmission costs and, by inference, transmission must be supplied on a regulated basis with mandatory charges.  L.E. estimated recovery in US markets was 5–20% of costs, with the highest level of recovery they could identify being Queensland at 24%.

Similarly, the US National Energy Policy document of May 2001 argued that, "The transmission system is the highway system for interstate commerce in electricity.  Transmission allows the sale of electricity between regions.  In a particular region, transmission can be a substitute for generation, allowing that region to import power that otherwise would have to be generated within that region."  But while it recognised the importance of incentives to augment the transmission system, it saw these as being rate- based with a regulatory backbone and did not contemplate the implications of this for its substitute, generation, and the consequent market distortions.

Attempts to place transmission provision on the same basis as generation has proven difficult.  Australia's experiments with merchant transmission have not been successful.  The new entrant Transenergie (13) has now opted for regulated status of its lines and sold out of Australia.  This may reflect the intrinsic inability of such facilities to earn sufficient return because of lumpiness and externality issues.  Others would argue that such matters are equally prevalent in power stations:  they are normally too large for their immediate requirements.

With regard to externalities, it is argued that these are too great to allow profitable merchant transmission, because the benefits of lower prices (actually arbitraged prices) accrue to all and not only to those paying for the asset.  This has spurred proposals to reward new transmission investors from gains made by consumers (see for example, Haydon and Michaels, 2006).  However, the effect of transmission augmentation is not markedly different from the situation concerning a new generation facility that will tend to suppress the price of all delivered electricity in its interconnected region.  Few would argue that by analogy, all generation should, therefore, be government-owned or subsidised, even though many argue for a form of general overhead support in the form of capacity payments.  The fact is that supply across the economy is seldom unaccompanied by some externalities.

If transmission is provided free or at regulated prices, this may discourage a more rational and lower cost development of new generation.  The tradeoff between nearby and remote generation (via transmission) is uniquely critical for Australia, where distances between load centers and therefore the cost of transmission are very large, and fossil fuel sources are relatively inexpensive and quite widespread.

The danger is that links which are financed by a compulsory charge on the customer might lead to incentives to site generation in places that are distant from major markets.  If someone else is paying for transmission, the rational generation business will be indifferent to its costs, thus distorting the efficient tradeoff transmission costs and generation costs.

Associated with the claim, that transmission would be inadequately provided in the absence of it being made subject to regulated support, is the contention that a transmission line has market power and its prices should be regulated.  However, for the most part, transmission inter-ties or interconnects offer no more market power than that of a significant generator portfolio.  Inter-ties in Australia can account for some 35% of supply (Victoria to South Australia) but normally provide much less than this.  Their market power is confined to influence over those wishing to export, and such firms are normally capable of writing contracts to cover any vulnerabilities they foresee.

How best to allow expansion of transmission, especially in terms of the regional linkages, has been the subject of a heated debate in Australia.  An uneasy compromise is presently in place for transmission under which regulated links will be permitted as long as a net market benefit is judged by the regulator to be the outcome and as long as the proposed link is the best of a range of feasible alternatives.  This, however, remains dissimilar from the decision-making structure that is seen in the generation sector or in markets more generally, since it may incorporate some to the network benefit externalities which a comparable investment in a new generator would not capture.

The competing solutions that generation and transmission often offer mean disputes about the merits of a new transmission solution are likely to remain.  These are illustrated by pressures from the Queensland government to augment transmission links following the state's capacity increases driving down prices below those in NSW.  This might be regarded by others as facilitating dumping by having expanded capacity financed as a regulated link because most of the costs fall directly on consumers.

As Michaels (2006) argues, establishing a market in a condition of supply surplus is a relatively straightforward matter.  Ensuring its ongoing development requires an appropriate structure.  Michaels regards the separation of transmission and generation as potentially fatal.  He says:

Studies in the 1980s and 1990s almost invariably concluded that vertical integration produced efficiencies that would be lost in a breakup.  These economies of integration applied to both the generation-transmission interface and to the ownership of generators and fuel supplies.  This scholarship was almost totally forgotten as California and other states began to restructure their power industries in the mid-1990s.

The matter of establishing an appropriate regime for transmission development is again being considered before the Australian Energy Market Commission (AEMC).  The AEMC recognises that investments may be inappropriately located because of the charging approach.  It favors prices being set on the basis of short-run marginal costs, which it argues is supported by economic theory and competitive market experience.

This is subject to a great many caveats.  Importantly, prices set on the basis of marginal costs are not found in many markets -- they are characteristic of markets under stress (for example, where there are few suppliers engaged in a "price war") or facing long-term decline (so that sunk costs need not be recouped).  Even the market for highly perishable goods like vegetables seldom sees produce offered at marginal cost and only then is this seen at the end of the trading day.

The AEMC recognises that if charges are set to meet short-run marginal costs and there is spare capacity, consumers may locate too far away from generation, especially if reliability standards are in place to fortify the initial decision.

It considers that prices based on long-run marginal costs may lead to inefficient bypass.  This leads it to support the notion of efficient discounts being offered which may be recouped by de facto surcharges on other customers.  It is likely that the conditions under which these would be permitted would be accompanied by protracted and heated negotiations.

The practise in Australia is to charge the customers for the transmission use, rather than generators.  Generators, however, do not have a property right to the transmission to the major hub.  This means that a new generator with costs and a consequent bidding strategy lower than that of an incumbent generator would force the latter off the line once it was at full capacity.  This might mean an alternative supplier with a higher total cost (including transmission costs to the major node) would replace the incumbent generator.  This is demonstrated in Fig. 12.

Fig. 12.  Illustration of Four Generators and Two Transmission Lines Serving a Load.


If generator B locates next to generator A, the latter is constrained out and replaced by the higher-cost generator C.  Costs are $1000 higher.  Generators A or B may have incentives to build additional transmission capacity but only if they can be assured of some exclusivity or some priority in its use.  A customer coalition would also be willing to finance such an investment but the transmission business may face no such incentive, while generators B, C, and D would prefer the augmentation not take place since they are beneficiaries of the higher price set by generator C.  Allocation of a form of property right would bring about the optimal investment without the rancor of a series of bureaucratic hearings and extensive lobbying.

A new generation unit or an expansion of an existing unit should be required to pay for any augmentation needed to allow its power to be transmitted.  This, implicit in which is some form of nodal pricing, gives a better market signal than if the determination is left to a regulator or to a transmission business since it allows the transposition of commercial forces for those that are actually or mainly controlled.  As AGL (2005) argued, "Applying deep connection charging to generators at the time of connection would allow the network costs to be included in their decision process on location and allow for appropriate development of networks to efficiently transfer power from generators to customers."

With rights over their current levels of service, existing generators have options about augmentation that ensure the full costs of their decisions are taken into account.  They may also downsize by selling part of their carriage rights to a new player, thereby avoiding wasteful duplication of capital.

This is a means of applying a market solution based on a form of property right to the creation of new transmission capacity.  It can, if it proves to be practical, resolve the provision of new capacity by taking it away from the artificial markets that regulators construct in permitting new transmission and levying consumers accordingly.  In that way a similar driver is put in place to that of new generation provision and, in principle, a more consistent set of investment incentives are established, thereby avoiding waste and gaming of the regulatory system.


6. CONCLUSIONS

Australia, like the UK, has evolved a market with very little regulation and, importantly, wholesale price caps that are either absent (in the case of the UK) or relatively high (in the case of Australia).  Even with market interventions, the outcome has been very satisfactory in terms of serving consumer demand and ensuring resource adequacy.  In Australia's case, those interventions include consumer price caps (diminishing in importance and soon to disappear);  a Reserve Trader (sparingly used and never having made any difference in the event);  mandatory generator/retail contract hedges in NSW (a semi-protectionist device which is soon to be abolished), and the commercial risks of government owning almost half of generation (though corporatisation of their boards means they no longer are pure political instruments).

Many are concerned about market abuse.  The more independent suppliers there are, the better this is avoided, but even so abuse is not important -- indeed, it is necessary in thin markets like Australia's.  Almost all generators in Australia bid some part of their capacity at very high prices.  If they set the price at $9000 they would be delighted, but the importance of this is muted by the fact that 95%+ of supply is contracted.  And in overall terms, the high-price excursions that have occurred have still left average prices low.  Some are concerned that generators have lost a great deal of money in some deregulated markets like Australia.  But some firms have thrived in the electricity generation market;  and if none have this, it indicates a need for a rise in the risk premium and the price, and the market will itself correct for the inadequate profit as long as there is open entry.

Occasional high-price excursions are important in reinforcing the need to contract.  In Australia, there are some requirements on generators to explain their re-bids but they are cursory and really there to prevent a maverick generator purposefully trying to undermine confidence in the bidding program by constant changes aimed at pure deception.  As in all markets the insurance against "abuse" is competition.  If there are pockets where high prices can be manipulated, this has its own profit-oriented correction factor unless it is government induced, in which case there is a more straightforward deregulatory solution.

Equally important to a competitive generation supply is a competitive retail market.  Retailers in the electricity market are always likely to confront consumers requiring the product at will and at a known price.  With smart metering, some price-induced demand shaving will be increasingly possible at the household level but quantities becoming available are always likely to disappoint -- after all, smart metering and controls have been in place with large users but seldom activated.  Electricity is not sufficiently costly to trigger major changes in behavior, and the suggested elasticities (-0.2) would probably not be achieved in the short term even if full knowledge of costs were available.

For the retailer, the main game is likely to remain forecasting his customers' demand and arranging for supplies to be made available through an array of contractual mechanisms.  Not only is the retailer a crucial link in bringing together supply and consumer demand but the retailer's exposure to price volatility forces it to adopt very prudent contracting strategies.  A retailer going bare and relying on the spot is engaged in extremely risky business since in the price ramping-up process prior to a blackout caused by insufficient capacity, that retailer will go broke.  Not only does this concentrate the mind of the retailer itself, but its creditors add a further discipline.  The retailer's creditors, conscious of their own exposure, are constantly viewing its books and ensuring their interests are protected as conditions of maintaining and extending loans.

The consequent risk-aversion of competitive retailers is one reason why there need be little concern about the emergence of "gentailers" because retail arms would not favor their generator affiliates.  Should they do so, they would be to jeopardise supplies from other generators.

The more significant concerns are about the interface of transmission and generation where one is market-provided and the other is centrally determined.  No market has yet devised a practical means of marrying the two components of supply in a market-driven context.  Australia's Electricity Code, in principle, requires new generators to ensure that they have adequate transmission but, in practise, transmission remains regulated.  We have outlined a means of moving to a market-oriented solution.



REFERENCES

Australian Energy Market Commission (2006).  Annual Electricity Market Performance Review:  Reliability and Security.

AGL (2005).  Electricity Transmission Revenue and Pricing Rules Review:  Issues paper on transmission revenue requirements, October.

Boiteux, M.P. (1949).  La tarification des demandes en pointe:  Application de la théorie de la vente au coût marginal.  Revue générale de l‘électricité, 58, 321–40.  Translated as "Peak load pricing".  Journal of Business 33, 157–79.

Bushnell, J.B. and Wolfram, C. (2005).  Ownership change, incentives and plant efficiency:  The divestiture of U.S. electric generation plants., Center for Study of Energy Markets.

California Public Utilities Commission (2005).  Capacity Markets White Paper.

Caramanis, M.C. (1982).  Investment decisions and long-term planning under electricity spot pricing.  IEEE Trans. Pow. App. and Sys., 101, 4640–8.

Chao, H-P. (1983).  Peak load pricing and capacity planning with demand and supply uncertainty.  Bell J. Econ., 14, 179–90.

Cramton, P. and Stoft, S. (2006).  The Convergence of Market Designs for Adequate Generating Capacity with Special Attention to the CAISO's Resource Adequacy Problem, A White Paper for the Electricity Oversight Board, p. 30.

Fabrizio, K. M., Rose, N.L., and Wolfram, C. (2004).  Does competition reduce costs?  assessing the impact of regulatory restructuring on U.S. electric generation efficiency.  Center for Study of Energy Markets.

Grey, P., Lewis, P., and Griffin, J. (2005).  Peace/Vaasaemg:  Utility customer switching research report.  World Retail Energy Market Rankings.

Haydon, J.J. and Michaels R.J. (2006).  Merchant transmission redux.  Pub. Util. Fort., September, 58–61.

Hogan, W.W. (1988).  Transmission investment and competitive electricity markets.  Center for Business and Government, John F Kennedy School of Government, Harvard University, April.

Industry Commission (1991).  Report into Electricity.

Tasman Institute (1991).  Report on Victorian Electricity Corporatisation and Privatisation.

Joskow, P. (2006).  Markets for power in the United States:  An interim assessmentThe Energ.J., 27(1), 1–36.

KEMA Consulting (2005).  Review of Methodology and Assumptions Used in NEMMCO 2003/04 Minimum Reserve Level Assessment.  NEMMCO.

Littlechild, S. (2005).  Beyond regulationBeesley Lectures on Regulation, Institute of Economic Affairs, London.

London Economics (1999).  Report for the ACCC, April.

Michaels, R.J. (2006).  Vertical integration and the restructuring of the U.S. electricity industry.  Pol. Anal., 572, 20.

National Audit Office (2003).  The New Electricity Trading Arrangements in England and Wales.

National Energy Policy Development Group (2001).  Reliable, Affordable, and Environmentally Sound Energy for America's Future.

Newbery, D.M. and Pollitt, M.G. (1997).  The restructuring and privatisation of the CEGB -- was it worth it?.  J. Ind. Econ., 45(3), 269–303.

Oren, S.S. (2000).  Capacity payments and supply adequacy in competitive electricity markets.  VII Symposium of Specialists in Electric Operational and Expansion Planning, Curitiba, Brazil, 21–26 May.

Report by the Independent Committee of Inquiry (1993) (the "Hilmer Report") National Competition Policy.

Roques, F.A., Newbery, D.M., and Nuttall, W.J. (2005).  Investment incentives and electricity market design:  The British experience.  Rev. of Net. Econ., 4(2), 93–128.

Simshauser, P. (2006).  The conditions necessary for the microeconomic reform of a power, generation industry.  Econ. Pol. and Anal., 34(2).

Stern, N., Peters, S., Bakhshi, V., et al. (2006).  Stern Review:  The economics of climate change, HM Treasury, 239.

Stoft, S.E. (2002).  Power System Economics:  Designing Markets for Electricity.  Piscataway (NJ):  IEEE Press.

Victorian Energy Networks Corporation (2002).  Value of Customer Reliability Report.



ENDNOTES

1.  Note that the NEM covers all the interconnected Australian grid.  Western Australia and Northern Territory are not part of the NEM due to their remote location.

2.  See for example, National Audit Office (2003).  The New Electricity Trading Arrangements in England and Wales

3.  Salusinszki, I. (2006).  Sacked for rejecting union mate.  Australian, 16 November.

4.  Peak demand has grown by 4510 MW and supply by 5138 MW from 2000–6.  See Australian Energy Market Commission (2006).  Annual Electricity Market Performance Review:  Reliability And Security.

5.  Australian Energy Market Commission (2006).  Annual Electricity Market Performance Review:  Reliability And Security.

6.  Interestingly, while strikes in the power industry commonly afflicted Victoria pre-market, the strike in the early days of the market was caused by a legacy of that culture and has not been since repeated –arguably, an outcome of the clear financial incentives upon generator performance created by the market.

7.  The NEM's reliability standard is set by the "Reliability Panel", an independent body with broad membership and expertise.  But it also accidentally benefited from first being implemented at a time of turmoil, where the government businesses were being divided up and vested interests were unclear, allowing something of a free reign to economic technocrats.  This may explain why it is at a more moderate level than that demanded in some other markets.

8.  See documents such as Victorian Energy Networks Corporation (2002).  Value of Customer Reliability Report.

9.  Adib, Schubert, and Oren also develop a procedure for a capacity payment mechanism where the energy-only market might not operate (because of price caps and other regulatory interventions).  The authors see their proposals as a transition to a more comprehensive energy market.

10.  Littlechild, S. (2005).  Beyond regulation, Beesley Lectures on Regulation, Institute of Economic Affairs, London.

11.  This may contain an element of double counting since it includes customers who have switched more than once;  on the other hand, it excludes customers who have moved off the default tariff but remained with their existing retailers.

12.  Personal communication Shmuel Oren, January 2007.

13.  A subsidiary of Hydro Quebec.