It’s an interesting legal question, and one that has led to the Federal Court hearing in the Federal Circuit today.
The Federal Court has asked the Federal Government to clarify its definition of commercial intermediary services (CIS) to help clarify the law surrounding the issue.
The case involves the use of a bank’s commercial intermediary service to provide a consumer’s water services.
Water Services Australia has asked for clarification to the definition of “commercial intermediary” services, and the Federal Attorney-General’s Department has provided a response.
“The use of commercial intermediaries to provide water services is a key part of the public water supply, but its legal definition is still unclear,” the Government says.
It says that “commercial intermediaries must be authorised by the consumer to supply water services”, and that it is not an essential function of the water services intermediary.
“If a consumer is not a consumer, then the role of a commercial intermediary is to provide the consumer with water services in exchange for a fee,” the Federal Office of Legal Affairs and the Attorney-Gen’s Department said.
Under the Commonwealth Water Services Act 2004, commercial intermediates are not required to be licensed.
But it says that the Australian Competition and Consumer Commission can use its powers to force “a commercial intermediary to be subject to a licensing regime that requires them to be regulated as a commercial entity”.
In a statement to the ABC, the Australian Communications and Media Authority (ACMA) said it has been monitoring the case closely and was “very concerned about the impact on consumers of the definition being clarified by the Attorney General”.
“The proposed definition of the term ‘commercial intermediary’ would have an important impact on competition and competition rules and on consumers’ ability to access water services,” the ACMA said.
“We will be working closely with the Attorney for the Federal Territory to assist in the review of this matter.”
The Australian Competition Tribunal has also taken the case.
And the Australian Water Industry Association (AWIA) has called for the Government to consult with the AWIA before making any changes to the water regulator’s definition.