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Queensland
GAS PIPELINES ACCESS
(QUEENSLAND) BILL 1998
Queensland
GAS PIPELINES ACCESS
(QUEENSLAND) BILL 1998
TABLE OF PROVISIONS
Section Page
PART 1--PRELIMINARY
1 Short title . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
2 Commencement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
3 Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
4 Words and expressions used in Gas Pipelines Access Law . . . . . . . . . . . . . 16
5 Crown to be bound . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
6 Application to coastal waters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
7 Extra-territorial operation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
PART 2--GAS PIPELINES ACCESS (QUEENSLAND) LAW AND
GAS PIPELINES ACCESS (QUEENSLAND) REGULATIONS
8 Application in Queensland of Gas Pipelines Access Law . . . . . . . . . . . . . . 17
9 Application in Queensland of regulations under Gas Pipelines
Access Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
10 Attachment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
11 Interpretation of some expressions in the Gas Pipelines Access
(Queensland) Law and the Gas Pipelines Access (Queensland)
Regulations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
PART 3--NATIONAL ADMINISTRATION AND
ENFORCEMENT
Division 1--Conferral of functions and powers
12 Conferral of functions and powers on Commonwealth Minister
and Commonwealth bodies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
13 Conferral of power on Commonwealth Minister and
Commonwealth bodies to do acts in this State . . . . . . . . . . . . . . . . . . . . . . . 20
14 Conferral of power on Ministers, Regulators and appeals bodies
of other scheme participants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
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Gas Pipelines Access (Queensland)
15 Conferral of functions on, and delegation of powers by, Code Registrar . . 21
16 Functions and powers conferred on Queensland Minister,
Regulator and appeals body . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
17 Functions of QCA as local Regulator . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Division 2--Federal Court
18 Jurisdiction of Federal Court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
19 Conferral of jurisdiction on Federal Court not to affect cross-vesting . . . . . 23
Division 3--Administrative decisions
20 Application of Commonwealth AD(JR) Act . . . . . . . . . . . . . . . . . . . . . . . . . 23
21 Application of Commonwealth AD(JR) Act in relation to other
scheme participants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
PART 4--LOCAL APPEALS BODY
Division 1--Establishment, function and powers of Queensland Gas
Appeals Tribunal
22 Establishment of tribunal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
23 Function of tribunal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
24 Powers of tribunal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Division 2--Provisions about tribunal members, registrar and other
staff
25 Qualifications of tribunal members . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
26 Appointment of members . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
27 Duration of appointment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
28 Vacation of office . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
29 Remuneration of members . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
30 Appointment of registrar and other staff . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Division 3--Reviews by the tribunal
31 How application for review made . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
32 Who constitutes tribunal for review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
33 Conduct of proceeding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
34 Venues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
35 Right of appearance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
36 Way questions decided . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
37 Notice of decision . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
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Division 4--Procedural provisions about reviews by the tribunal
38 Procedural powers of tribunal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
39 Inspection of documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
40 Offences . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
41 Self-incrimination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
42 False or misleading information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
43 False or misleading documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
44 Tribunal to keep records of proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Division 5--Other provisions about the tribunal
45 Disclosure of interests . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
46 Contempt of tribunal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
47 Protection of members, legal representatives and witnesses . . . . . . . . . . . . 32
48 Authentication of documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
49 Judicial notice of certain signatures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
50 Confidentiality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Division 6--Subcommittees
51 Advisory and technical subcommittees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
52 Proceedings of subcommittees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
53 Regulation-making power for pt 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
PART 5--MISCELLANEOUS
54 Exemption from taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
55 Actions in relation to cross-boundary pipelines . . . . . . . . . . . . . . . . . . . . . . . 35
PART 6--LOCAL TRANSITIONAL PROVISIONS
56 Definitions for pt 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
57 Pipelines taken to be covered pipelines . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
58 Reference tariffs for certain pipelines . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
59 Access principles for the Queensland part of the PNG to
Queensland pipeline . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
60 Access principles for certain other pipelines . . . . . . . . . . . . . . . . . . . . . . . . . 39
PART 7--CONSEQUENTIAL AMENDMENTS
Division 1--Amendment of Acts Interpretation Act 1954
61 Act amended in div 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
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62 Amendment of s 36 (Meaning of commonly used words and
expressions) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
Division 2--Amendment of Gas Act 1965
63 Act amended in div 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
64 Amendment of s 5 (Definitions) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
65 Insertion of new s 5B . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
5B Meaning of "contestable consumer" . . . . . . . . . . . . . . . . . . . . . . . . . 40
5C Meaning of "non-contestable consumer" . . . . . . . . . . . . . . . . . . . . . . 41
66 Insertion of new s 11 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
11 Relationship of pt 3 and sch 1 to Gas Pipelines Access
(Queensland) Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
67 Amendment of s 20 (Provisions applicable to a reticulation system) . . . . . 42
68 Amendment of s 52C (Restriction on constructing and
maintaining pipe) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
69 Insertion of new s 52D . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
52D Restriction on constructing and maintaining distribution
pipeline . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
52E Restriction on sale of gas in franchise area . . . . . . . . . . . . . . . . . . . . 44
70 Amendment of s 64 (Regulation-making power) . . . . . . . . . . . . . . . . . . . . . 44
Division 3--Amendment of Petroleum Act 1923
71 Act amended in div 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
72 Amendment of s 7 (Application of Act) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
73 Amendment of s 69 (Pipeline licences) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
74 Amendment of s 70 (Access principles to be approved before
grant of pipeline licence) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
75 Amendment of s 104 (Application of part to pipelines) . . . . . . . . . . . . . . . . 45
Division 4--Amendment of Petroleum (Submerged Lands) Act 1982
76 Act amended in div 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
77 Insertion of new s 6A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
6A Relationship of Act to Gas Pipelines Access (Queensland) Law . . 46
ATTACHMENT
GAS PIPELINES ACCESS (SOUTH AUSTRALIA) ACT 1997
PART 1--PRELIMINARY
1 Short title . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
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Gas Pipelines Access (Queensland)
2 Commencement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
3 Interpretation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
4 Crown to be bound . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
5 Application to coastal waters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
6 Extra-territorial operation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
PART 2--GAS PIPELINES ACCESS (SOUTH AUSTRALIA) LAW
AND GAS PIPELINES ACCESS (SOUTH AUSTRALIA)
REGULATIONS
7 Application in South Australia of the Gas Pipelines Access Law . . . . . . . . 50
8 Application of regulations under Gas Pipelines Access Law . . . . . . . . . . . . 50
9 Interpretation of some expressions in the Gas Pipelines Access
(South Australia) Law and Gas Pipelines Access (South Australia)
Regulations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
PART 3--POWER TO MAKE REGULATIONS FOR THE GAS
PIPELINES ACCESS LAW
10 General regulation-making power for Gas Pipelines Access Law . . . . . . . . 52
11 Civil penalty provisions of the Gas Pipelines Access Law . . . . . . . . . . . . . 52
12 Specific regulation-making powers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
PART 4--NATIONAL ADMINISTRATION AND
ENFORCEMENT
Division 1--Conferral of functions and powers
13 Conferral of functions on Commonwealth Minister and
Commonwealth bodies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
14 Conferral of power on Commonwealth Minister and
Commonwealth bodies to do acts in this State . . . . . . . . . . . . . . . . . . . . . . . 54
15 Conferral of power on Ministers, Regulators and appeals bodies
of other scheme participants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
16 Conferral of functions on Code Registrar . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
17 Functions and powers conferred on South Australian Minister,
Regulator and appeals body . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
Division 2--Federal Court
18 Jurisdiction of Federal Court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
19 Conferral of jurisdiction on Federal Court not to affect cross-vesting . . . . . 55
Division 3--Administrative decisions
20 Application of Commonwealth AD(JR) Act . . . . . . . . . . . . . . . . . . . . . . . . . 56
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Gas Pipelines Access (Queensland)
21 Application of Commonwealth AD(JR) Act in relation to other
scheme participants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
PART 5--GENERAL
22 Exemption from taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
23 Actions in relation to cross-boundary pipelines . . . . . . . . . . . . . . . . . . . . . . . 58
24 Subordinate Legislation Act 1978 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
PART 6--LOCAL ADMINISTRATION AND ENFORCEMENT
Division 1--Code registrar
25 Code Registrar . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
26 Delegation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
27 Annual report . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
28 Immunity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
Division 2--Local regulator
29 South Australian Independent Pricing and Access Regulator . . . . . . . . . . . 61
30 Functions and powers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
31 Independence of Regulator . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
32 Term of office etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
33 Delegation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
34 Conflict of interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
35 Acting Regulator . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
36 Staff . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
37 Money required for purposes of division . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
38 Expenditure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
39 Financial management . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
40 Annual report . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
41 Immunity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
Division 3--Appeals body
42 South Australian Gas Review Board . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
43 Panels . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
44 Principles governing hearings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
45 Powers and procedures of the Board . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
46 Immunity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
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Division 4--Miscellaneous
47 Regulations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
PART 7--LOCAL TRANSITIONAL AND CONSEQUENTIAL
PROVISIONS
Division 1--Transitional provisions
48 Reference tariffs during transitional period . . . . . . . . . . . . . . . . . . . . . . . . . . 71
Division 2--Consequential amendments
Subdivision 1--Preliminary
49 Interpretation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
50 Repeal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
Subdivision 3--Amendment of Gas Act 1997
51 Amendment of s 8--Functions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
52 Amendment of s 11--Obligation to preserve confidentiality . . . . . . . . . . . . 73
53 Amendment of s 18--Obligation to preserve confidentiality . . . . . . . . . . . . 73
54 Amendment of s 24--Licence fees and returns . . . . . . . . . . . . . . . . . . . . . . . 73
Subdivision 4--Amendment of Petroleum Act 1940
55 Amendment of s. 80L--Minister may require operator to convey
petroleum . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
SCHEDULE 1 . . . . . . . . . . . . . . . . . . . . . . . . 75
THIRD PARTY ACCESS TO NATURAL GAS PIPELINES
PART 1--PRELIMINARY
1 Citation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
2 Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
3 Scheme participants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
4 Interpretation generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86
PART 2--NATIONAL THIRD PARTY ACCESS CODE FOR
NATURAL GAS PIPELINE SYSTEMS
5 The Code . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86
6 Amendment of Code . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86
7 Availability of copies of amended Code . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88
8 Evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88
PART 3--PIPELINES
9 Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88
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Gas Pipelines Access (Queensland)
10 Application for classification and determination of close
connection for purposes of coverage under Code . . . . . . . . . . . . . . . . . . . . . 90
11 Classification when Ministers do not agree . . . . . . . . . . . . . . . . . . . . . . . . . . 92
12 Code Registrar to record classification etc. . . . . . . . . . . . . . . . . . . . . . . . . . . 93
13 Preventing or hindering access . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93
PART 4--ARBITRATION OF ACCESS DISPUTES
14 Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95
15 Application of part . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95
16 Person to conduct arbitration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96
17 Where ACCC conducts arbitration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96
18 Hearing to be in private . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97
19 Right to representation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97
20 Procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98
21 Particular powers of arbitrator . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98
22 Determination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99
23 Contempt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99
24 Disclosure of information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99
25 Power to take evidence on oath or affirmation . . . . . . . . . . . . . . . . . . . . . . 100
26 Failing to attend as a witness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 100
27 Failing to answer questions etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 100
28 Intimidation etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101
29 Party may request arbitrator to treat material as confidential . . . . . . . . . . 101
30 Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
31 Appeal to Court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103
PART 5--PROCEEDINGS FOR BREACH OF LAW
32 Proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103
33 Criminal proceedings do not lie . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104
34 Civil penalty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104
35 Injunctions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106
36 Actions for damages for contravention of conduct provision . . . . . . . . . . . 108
37 Declaratory relief . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108
PART 6--ADMINISTRATIVE APPEALS
38 Application for review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 109
9
Gas Pipelines Access (Queensland)
39 Merits review of access arrangements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 111
PART 7--GENERAL
40 Supply and haulage of natural gas . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 113
41 Power to obtain information and documents . . . . . . . . . . . . . . . . . . . . . . . . 113
42 Restriction on disclosure of confidential information . . . . . . . . . . . . . . . . . 115
43 Application for review of disclosure notice . . . . . . . . . . . . . . . . . . . . . . . . . 117
APPENDIX TO SCHEDULE 1 . . . . . . . . 119
MISCELLANEOUS PROVISIONS RELATING TO
INTERPRETATION
PART 1--PRELIMINARY
1 Displacement of Appendix by contrary intention . . . . . . . . . . . . . . . . . . . . 119
PART 2--GENERAL
2 Law to be construed not to exceed legislative power of Legislature . . . . 119
3 Every section to be a substantive enactment . . . . . . . . . . . . . . . . . . . . . . . 120
4 Material that is, and is not, part of this Law . . . . . . . . . . . . . . . . . . . . . . . . 120
5 References to particular Acts and to enactments . . . . . . . . . . . . . . . . . . . . 120
6 References taken to be included in Act or Law citation etc. . . . . . . . . . . . 121
7 Interpretation best achieving Law's purpose . . . . . . . . . . . . . . . . . . . . . . . . 121
8 Use of extrinsic material in interpretation . . . . . . . . . . . . . . . . . . . . . . . . . . 121
9 Compliance with forms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 123
PART 3--TERMS AND REFERENCES
10 Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 124
11 Provisions relating to defined terms and gender and number . . . . . . . . . . . 128
12 Meaning of may and must etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 128
13 Words and expressions used in statutory instruments . . . . . . . . . . . . . . . . . 128
14 Effect of express references to bodies corporate and individuals . . . . . . . 129
15 References to Minister . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 129
16 Production of records kept in computers etc. . . . . . . . . . . . . . . . . . . . . . . . . 130
17 This scheme participant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 130
18 References to officers and holders of offices . . . . . . . . . . . . . . . . . . . . . . . . 131
19 Reference to certain provisions of Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . 131
PART 4--FUNCTIONS AND POWERS
20 Performance of statutory functions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 132
10
Gas Pipelines Access (Queensland)
21 Power to make instrument or decision includes power to amend
or repeal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 132
22 Matters for which statutory instruments may make provision . . . . . . . . . . 133
23 Presumption of validity and power to make . . . . . . . . . . . . . . . . . . . . . . . . 134
24 Appointments may be made by name or office . . . . . . . . . . . . . . . . . . . . . . 134
25 Acting appointments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 135
26 Powers of appointment imply certain incidental powers . . . . . . . . . . . . . . 136
27 Delegation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 137
28 Exercise of powers between enactment and commencement . . . . . . . . . . 138
PART 5--DISTANCE AND TIME
29 Matters relating to distance and time . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 141
PART 6--SERVICE OF DOCUMENTS
30 Service of documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 142
31 Meaning of service by post etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 143
PART 7--EFFECT OF REPEAL, AMENDMENT OR
EXPIRATION
32 Time of Law ceasing to have effect . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 143
33 Repealed Law provisions not revived . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 144
34 Saving of operation of repealed Law provisions . . . . . . . . . . . . . . . . . . . . . 144
35 Continuance of repealed provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 145
36 Law and amending Acts to be read as one . . . . . . . . . . . . . . . . . . . . . . . . . 145
PART 8--OFFENCES UNDER THIS LAW
37 Penalty at end of provision . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 145
38 Penalty other than at end of provision . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 145
39 Indictable offences and summary offences . . . . . . . . . . . . . . . . . . . . . . . . . 146
40 Double jeopardy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 146
41 Aiding and abetting, attempts etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 147
PART 9--INSTRUMENTS UNDER THIS LAW
42 Appendix applies to statutory instruments . . . . . . . . . . . . . . . . . . . . . . . . . . 147
SCHEDULE 2 . . . . . . . . . . . . . . . . . . . . . . . 148
NATIONAL THIRD PARTY ACCESS CODE FOR NATURAL
GAS PIPELINE SYSTEMS
1 Coverage . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 149
11
Gas Pipelines Access (Queensland)
2 Access arrangements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 161
3 Content of an access arrangement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 179
4 Ring fencing arrangements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 195
5 Information and timelines for negotiation . . . . . . . . . . . . . . . . . . . . . . . . . . 204
6 Dispute resolution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 208
7 General regulatory and miscellaneous provisions . . . . . . . . . . . . . . . . . . . . 220
8 Reference tariff principles . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 228
9 Code change . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 252
10 How this Code applies to Multiple Service Providers . . . . . . . . . . . . . . . . 254
ATTACHMENT A--INFORMATION DISCLOSURE BY A
SERVICE PROVIDER TO INTERESTED PARTIES
SCHEDULE A--PIPELINES TO BE COVERED FROM
COMMENCEMENT OF THE CODE
1998
A BILL
FOR
An Act about third party access to natural gas pipeline systems, and
for related purposes
14
Gas Pipelines Access (Queensland)
Preamble--
Parliament's reasons for enacting this Act are--
1. The Council of Australian Governments agreed, in February 1994, to
general principles of competition policy reform to enable third parties, in
particular circumstances, to gain access to essential facilities.
2. The Council of Australian Governments, as part of that commitment
to reform, agreed to more specific proposals for the development of free
and fair trade in natural gas.
3. The Commonwealth, the States of New South Wales, Victoria,
Queensland, South Australia, Western Australia and Tasmania, the
Northern Territory and the Australian Capital Territory agreed in November
1997 to the enactment of legislation in the Commonwealth and those States
and Territories so that a uniform national framework applies for third party
access to all gas pipelines that--
(a) facilitates the development and operation of a national market for
natural gas; and
(b) prevents abuse of monopoly power; and
(c) promotes a competitive market for natural gas in which
customers may choose suppliers, including producers, retailers
and traders; and
(d) provides rights of access to natural gas pipelines on conditions
that are fair and reasonable for the owners and operators of gas
transmission and distribution pipelines and persons wishing to
use the services of those pipelines; and
(e) provides for resolution of disputes.
s1 15 s3
Gas Pipelines Access (Queensland)
The Parliament of Queensland enacts-- 1
PART 1--PRELIMINARY 2
title 3
Short
1. This Act may be cited as the Gas Pipelines Access (Queensland) Act 4
1998. 5
6
Commencement
2. This Act commences on a day to be fixed by proclamation. 7
8
Definitions
3. In this Act-- 9
"attendance notice" see section 38.1 10
"conviction" includes a plea of guilty or a finding of guilt by a court even 11
though a conviction is not recorded. 12
"Gas Pipelines Access Law" means-- 13
(a) schedule 1 to the South Australian Act-- 14
(i) as enacted; or 15
(ii) if amended, as amended and in force for the time being; and 16
(b) the National Third Party Access Code for Natural Gas Pipeline 17
Systems (a copy of which, as agreed by the Council of Australian 18
Governments on 7 November 1997, is set out in schedule 2 to the 19
South Australian Act) or, if that Code is amended in accordance 20
with schedule 1 to that Act, that Code as so amended and in force 21
for the time being. 22
1 Section 38 (Procedural powers of tribunal)
s4 16 s6
Gas Pipelines Access (Queensland)
"Gas Pipelines Access (Queensland) Law" means the provisions 1
applying because of section 8. 2
"Gas Pipelines Access (Queensland) Regulations" means the provisions 3
applying because of section 9. 4
"South Australian Act" means the Gas Pipelines Access (South 5
Australia) Act 1997 (SA). 6
"tribunal" means the Queensland Gas Appeals Tribunal. 7
and expressions used in Gas Pipelines Access Law 8
Words
4.(1) Words and expressions used in the Gas Pipelines Access Law, as 9
applying because of section 8, and in this Act have the same respective 10
meanings in this Act as they have in that Law as so applying. 11
(2) Subsection (1) does not apply to the extent that the context or subject 12
matter otherwise indicates or requires. 13
rown to be bound 14
C
5. This Act, the Gas Pipelines Access (Queensland) Law and the Gas 15
Pipelines Access (Queensland) Regulations bind the Crown, not only in 16
right of Queensland but also, so far as the legislative power of the 17
Parliament permits, the Crown in all its other capacities. 18
to coastal waters 19
Application
6.(1) This Act, the Gas Pipelines Access (Queensland) Law and the Gas 20
Pipelines Access (Queensland) Regulations apply in the coastal waters of 21
this State. 22
(2) In this section-- 23
"coastal waters", of this State, means any sea that is on the landward side 24
of the adjacent area in respect of the State but is not within the limits of 25
the State. 26
s7 17 s9
Gas Pipelines Access (Queensland)
operation 1
Extra-territorial
7.(1) It is the intention of the Parliament that the operation of this Act, the 2
Gas Pipelines Access (Queensland) Law and the Gas Pipelines Access 3
(Queensland) Regulations should, as far as possible, include operation in 4
relation to the following-- 5
(a) things situated in or outside this State; 6
(b) acts, transactions and matters done, entered into or occurring in or 7
outside this State; 8
(c) things, acts, transactions and matters (wherever situated, done, 9
entered into or occurring) that would, apart from this Act, be 10
governed or otherwise affected by the law of another State, a 11
Territory, the Commonwealth or a foreign country. 12
(2) Nothing in subsection (1) has effect in relation to a pipeline to the 13
extent that the pipeline is situated, or partly situated, beyond the 14
jurisdictional areas of all the scheme participants. 15
PART 2--GAS PIPELINES ACCESS (QUEENSLAND) 16
LAW AND GAS PIPELINES ACCESS (QUEENSLAND) 17
REGULATIONS 18
in Queensland of Gas Pipelines Access Law 19
Application
8. The Gas Pipelines Access Law-- 20
(a) applies as a law of Queensland; and 21
(b) as so applying, may be referred to as the Gas Pipelines Access 22
(Queensland) Law. 23
in Queensland of regulations under Gas Pipelines Access 24
Application
Law 25
9. The regulations in force for the time being under part 3 of the South 26
Australian Act-- 27
s 10 18 s 11
Gas Pipelines Access (Queensland)
(a) apply as regulations in force for the Gas Pipelines Access 1
(Queensland) Law; and 2
(b) as so applying, may be referred to as the Gas Pipelines Access 3
(Queensland) Regulations. 4
5
Attachment
10.(1) Attached to this Act is a copy of the South Australian Act. 6
(2) The attachment is not part of this Act. 7
(3) The attachment must be revised so that it is an accurate copy of the 8
South Australian Act, and the National Third Party Access Code for Natural 9
Gas Pipeline Systems, as amended from time to time.2 10
(4) The revision under subsection (3) must happen in the first reprint of 11
this Act after an amendment of the South Australian Act or the Code. 12
(5) A copy of an Act passed by the Parliament of South Australia that 13
amends the South Australian Act must be tabled in the Legislative 14
Assembly by the Minister within 14 sitting days after it receives the Royal 15
Assent. 16
(6) A copy of an agreement for an amendment of the Code, must be 17
tabled in the Legislative Assembly by the Minister within 14 sitting days 18
after it comes into force. 19
(7) This section does not affect the operation of sections 8 and 9. 20
of some expressions in the Gas Pipelines Access 21
Interpretation
(Queensland) Law and the Gas Pipelines Access (Queensland) 22
Regulations 23
11.(1) In the Gas Pipelines Access (Queensland) Law and the Gas 24
Pipelines Access (Queensland) Regulations-- 25
2 The Code (a copy of which, as agreed by the Council of Australian Governments
on 7 November 1997, is set out in schedule 2 to the South Australian Act) may
be amended by agreement of relevant Ministers in accordance with schedule 1
to that Act.
s 11 19 s 11
Gas Pipelines Access (Queensland)
"Code" means the National Third Party Access Code for Natural Gas 1
Pipeline Systems (a copy of which, as agreed by the Council of 2
Australian Governments on 7 November 1997, is set out in schedule 2 3
to the South Australian Act) or, if that Code is amended in accordance 4
with schedule 1 to that Act, that Code as so amended and in force for 5
the time being, as it applies because of section 8 of this Act as a law of 6
Queensland. 7
"Court" means the Supreme Court or the Federal Court. 8
"designated appeals body" means the Australian Competition Tribunal. 9
"designated Minister" means the Commonwealth Minister. 10
"Gas Pipelines Access Law" or "this Law" means the Gas Pipelines 11
Access (Queensland) Law. 12
"Legislature" means the Parliament of Queensland. 13
"local appeals body" means the Queensland Gas Appeals Tribunal. 14
"local Minister" means the Minister administering the Petroleum Act 15
1923. 16
"local Regulator" means the Queensland Competition Authority. 17
"Supreme Court" means the Supreme Court of Queensland. 18
"this scheme participant" means the State of Queensland. 19
(2) The Acts Interpretation Act 1915, and other Acts, of South Australia 20
do not apply to-- 21
(a) the Gas Pipelines Access Law set out in schedule 1 to the South 22
Australian Act in its application as a law of Queensland; or 23
(b) the regulations in force for the time being under part 3 of the 24
South Australian Act in their application as regulations in force 25
for the Gas Pipelines Access Law. 26
s 12 20 s 13
Gas Pipelines Access (Queensland)
ART 3--NATIONAL ADMINISTRATION AND 1
P
ENFORCEMENT 2
1--Conferral of functions and powers 3
Division
of functions and powers on Commonwealth Minister and 4
Conferral
Commonwealth bodies 5
12.(1) The Commonwealth Minister, the ACCC, the NCC and the 6
Australian Competition Tribunal have the functions and powers conferred 7
or expressed to be conferred on them respectively under the Gas Pipelines 8
Access (Queensland) Law.3 9
(2) In addition to the powers mentioned in subsection (1), the 10
Commonwealth Minister and the bodies referred to in that subsection have 11
power to do all things necessary or convenient to be done in connection 12
with the performance or exercise of the functions and powers referred to in 13
that subsection. 14
of power on Commonwealth Minister and Commonwealth 15
Conferral
bodies to do acts in this State 16
13. The Commonwealth Minister, the ACCC, the NCC and the 17
Australian Competition Tribunal have power to do acts in or in relation to 18
this State in the performance or exercise of a function or power expressed to 19
be conferred on them respectively by the gas pipelines access legislation of 20
another scheme participant.4 21
3 The entities "ACCC" and "NCC" are respectively the Australian Competition
and Consumer Commission and the National Competition Council--see the
definitions for the terms in schedule 1 to the South Australian Act.
4 Schedule 1 to the South Australian Act defines the "gas pipelines access
legislation" for each scheme participant. Under the schedule, the scheme
participants are the Commonwealth, the states of New South Wales, Victoria,
Queensland, South Australia, Western Australia and Tasmania, the Australian
Capital Territory and the Northern Territory.
s 14 21 s 15
Gas Pipelines Access (Queensland)
of power on Ministers, Regulators and appeals bodies of 1
Conferral
other scheme participants 2
14. The local Minister, the local Regulator and the local appeals body 3
under the gas pipelines access legislation of another scheme participant have 4
power to do acts in or in relation to this State in the performance or exercise 5
of a function or power expressed to be conferred on them respectively by 6
the gas pipelines access legislation of that other scheme participant. 7
of functions on, and delegation of powers by, Code 8
Conferral
Registrar 9
15.(1) The Code Registrar has-- 10
(a) the functions and powers conferred or expressed to be conferred 11
on the Code Registrar under the Gas Pipelines Access 12
(Queensland) Law or under the National Gas Agreement;5 and 13
(b) any other functions and powers conferred on the Code Registrar 14
by unanimous resolution of the relevant Ministers of the scheme 15
participants. 16
(2) In addition to the powers mentioned in subsection (1), the Code 17
Registrar has power to do all things necessary or convenient to be done in 18
connection with the performance or exercise of the functions and powers 19
referred to in that subsection. 20
(3) The Code Registrar may delegate the Code Registrar's powers under 21
this section to an appropriately qualified person.6 22
(4) In this section-- 23
"appropriately qualified", for a person to whom a power may be 24
delegated, includes having the qualifications, experience or standing to 25
exercise the power. 26
5 The agreement is the National Gas Pipelines Access Agreement entered into by
the scheme participants on 7 November 1997.
6 See the Acts Interpretation Act 1954, section 27A(12) (Delegation of Powers) for
the restriction on subdelegation of a power of delegation.
s 16 22 s 18
Gas Pipelines Access (Queensland)
and powers conferred on Queensland Minister, Regulator 1
Functions
and appeals body 2
16. If the gas pipelines access legislation of another scheme participant 3
confers a function or power on the local Minister, local Regulator or local 4
appeals body, the Minister, Regulator or body-- 5
(a) may perform that function or exercise that power; and 6
(b) may do all things necessary or convenient to be done in 7
connection with the performance or exercise of that function or 8
power. 9
of QCA as local Regulator 10
Functions
17. The Queensland Competition Authority in its capacity as the local 11
Regulator under the Gas Pipelines Access (Queensland) Law-- 12
(a) may only perform the functions and only exercise the powers that 13
are conferred on it under the Law or the gas pipelines access 14
legislation of another scheme participant; and 15
(b) in performing the functions or exercising the powers is not 16
subject to the control or direction of any Minister exercising 17
power under the Queensland Competition Authority Act 1997. 18
2--Federal Court 19
Division
of Federal Court 20
Jurisdiction
18. Jurisdiction is conferred on the Federal Court with respect to-- 21
(a) civil and criminal matters arising under the Gas Pipelines Access 22
(Queensland) Law; and 23
(b) applications made to the Federal Court under the Administrative 24
Decisions (Judicial Review) Act 1977 (Cwlth) as applying as a 25
law of this State under section 20 or 21. 26
s 19 23 s 21
Gas Pipelines Access (Queensland)
of jurisdiction on Federal Court not to affect cross-vesting 1
Conferral
19. Section 18 does not affect the operation of any law relating to 2
cross-vesting of jurisdiction. 3
3--Administrative decisions 4
Division
of Commonwealth AD(JR) Act 5
Application
20.(1) The Administrative Decisions (Judicial Review) Act 1977 (Cwlth) 6
applies as a law of this State to any matter arising in relation to a decision of 7
a Code body under the Gas Pipelines Access (Queensland) Law as if that 8
Law were an enactment within the meaning of that Act and not a law of this 9
State. 10
(2) For the application of the Administrative Decisions (Judicial Review) 11
Act 1977 (Cwlth) as a law of this State, a matter arising in relation to a 12
decision of a Code body under the Gas Pipelines Access (Queensland) 13
Law-- 14
(a) is taken to be a matter arising in relation to laws of the 15
Commonwealth in the same way as if the Gas Pipelines Access 16
(Queensland) Law were a law of the Commonwealth; and 17
(b) is taken not to be a matter arising in relation to laws of this State. 18
(3) In this section-- 19
"Code body" means-- 20
(a) the NCC; or 21
(b) the ACCC; or 22
(c) the Australian Competition Tribunal; or 23
(d) an arbitrator appointed by the ACCC under the Gas Pipelines 24
Access (Queensland) Law. 25
of Commonwealth AD(JR) Act in relation to other 26
Application
scheme participants 27
21.(1) The Administrative Decisions (Judicial Review) Act 1977 (Cwlth) 28
applies as a law of this State to any matter arising in relation to a decision of 29
s 21 24 s 21
Gas Pipelines Access (Queensland)
a Code body under the gas pipelines access legislation of another scheme 1
participant as if that legislation were an enactment within the meaning of 2
that Act and not a law of that scheme participant. 3
(2) For the application of the Administrative Decisions (Judicial Review) 4
Act 1977 (Cwlth) as a law of this State, a matter arising in relation to a 5
decision of a Code body under the gas pipelines access legislation of 6
another scheme participant-- 7
(a) is taken to be a matter arising in relation to laws of the 8
Commonwealth in the same way as if that legislation were a law 9
of the Commonwealth; and 10
(b) is taken not to be a matter arising in relation to laws of that 11
scheme participant. 12
(3) This section does not require, prohibit, empower, authorise or 13
otherwise provide for, the doing of an act outside this State. 14
(4) In this section-- 15
"Code body" means-- 16
(a) the NCC; or 17
(b) the ACCC; or 18
(c) the Australian Competition Tribunal; or 19
(d) the local appeals body under the Gas Pipelines Access 20
(Queensland) Law; or 21
(e) the local Minister under the Gas Pipelines Access (Queensland) 22
Law; or 23
(f) the local Regulator under the Gas Pipelines Access (Queensland) 24
Law; or 25
(g) an arbitrator appointed under the Gas Pipelines Access 26
(Queensland) Law, part 4. 27
s 22 25 s 25
Gas Pipelines Access (Queensland)
PART 4--LOCAL APPEALS BODY 1
1--Establishment, function and powers of Queensland Gas 2
Division
Appeals Tribunal 3
of tribunal 4
Establishment
22.(1) The Queensland Gas Appeals Tribunal is established. 5
(2) The tribunal consists of the following members-- 6
(a) a chairperson; 7
(b) a pool of 5 panel members. 8
(3) The tribunal is to be convened only when an appeal is lodged. 9
of tribunal 10
Function
23. The function of the tribunal is to conduct reviews of decisions under 11
the Gas Pipelines Access (Queensland) Law.7 12
of tribunal 13
Powers
24. For performing its function, the tribunal has-- 14
(a) the powers conferred on it under this Act; and 15
(b) the powers conferred on a local appeals body under the Gas 16
Pipelines Access (Queensland) Law. 17
2--Provisions about tribunal members, registrar and other 18
Division
staff 19
of tribunal members 20
Qualifications
25.(1) The chairperson of the tribunal is to be nominated for appointment 21
7 For administrative review provisions of certain decisions--see part 6 of schedule
1 to the South Australian Act.
s 26 26 s 28
Gas Pipelines Access (Queensland)
by the Premier and must-- 1
(a) have been a Supreme or District Court judge; or 2
(b) be a lawyer of at least 5 years standing. 3
(2) Members of the pool are to be nominated by the Premier. 4
(3) In nominating a member of the pool, regard must be had to the 5
desirability of the members collectively having knowledge and 6
understanding of the financial, technical, legal and economic aspects of the 7
gas industry. 8
of members 9
Appointment
26.(1) The members of the tribunal are to be appointed by the Governor 10
in Council. 11
(2) A member is appointed under this Act and not under the Public 12
Service Act 1996. 13
of appointment 14
Duration
27. A member is to be appointed for the term, not longer than 3 years, 15
stated in the member's instrument of appointment. 16
of office 17
Vacation
28.(1) The office of a member becomes vacant if-- 18
(a) the member resigns by signed notice of resignation given to the 19
Premier; or 20
(b) the member is convicted of an indictable offence; or 21
(c) the member's appointment is terminated by the Governor in 22
Council. 23
(2) The Governor in Council may only terminate a member's 24
appointment if-- 25
(a) the member becomes mentally or physically incapable of 26
satisfactorily performing the member's duties; or 27
(b) the Governor in Council is satisfied the member has neglected the 28
s 29 27 s 32
Gas Pipelines Access (Queensland)
member's duties or performed the member's duties 1
incompetently or inefficiently. 2
of members 3
Remuneration
29. A member is entitled to be paid the remuneration and allowances 4
decided by the Governor in Council. 5
of registrar and other staff 6
Appointment
30.(1) A registrar of the tribunal, and the other staff that may be 7
necessary to enable the tribunal to exercise its function, may be employed 8
under the Public Service Act 1996. 9
(2) A public service officer may be appointed under subsection (1) and 10
may hold the appointment in conjunction with any other appointment the 11
officer holds in the public service. 12
3--Reviews by the tribunal 13
Division
application for review made 14
How
31.(1) An application to the tribunal for a review of a decision under the 15
Gas Pipelines Access (Queensland) Law is made by filing a written notice 16
with the registrar of the tribunal.8 17
(2) The registrar must give a copy of the application to the local 18
Regulator or local Minister. 19
constitutes tribunal for review 20
Who
32.(1) For reviewing the decision, the tribunal is to be constituted by-- 21
(a) the chairperson of the tribunal; and 22
(b) 3 other members chosen by the chairperson from the pool of 23
panel members. 24
8 Under section 38(2) (Application for review) of schedule 1 to the South
Australian Act, the application must be made within 14 days after the decision is
made.
s 33 28 s 36
Gas Pipelines Access (Queensland)
(2) The selection of the panel members is at the discretion of the 1
chairperson but should be based on the subject of the review, the individual 2
skills of the pool members and their availability. 3
of proceeding 4
Conduct
33.(1) In a proceeding for reviewing the decision, the tribunal must-- 5
(a) observe natural justice; and 6
(b) act as quickly, and with as little formality and technicality, as is 7
consistent with a fair and proper consideration of the issues 8
before it. 9
(2) In conducting the proceeding, the tribunal-- 10
(a) is not bound by the rules of evidence; and 11
(b) may decide the procedures to be followed. 12
(3) However, the tribunal must comply with the Gas Pipelines Access 13
(Queensland) Law, this division and any procedural rules prescribed under 14
a regulation. 15
16
Venues
34. The tribunal is to sit at the times and places the chairperson of the 17
tribunal decides. 18
of appearance 19
Right
35. A party may appear before the tribunal in person or be represented by 20
a lawyer or agent. 21
questions decided 22
Way
36.(1) A question of law before the tribunal is to be decided by the 23
chairperson of the tribunal. 24
(2) If the members are divided in opinion about the decision to be made 25
on another question before the tribunal-- 26
(a) if there is a majority of the same opinion--the question is decided 27
s 37 29 s 39
Gas Pipelines Access (Queensland)
according to the majority opinion; or 1
(b) otherwise--the question is decided according to the chairperson's 2
opinion. 3
of decision 4
Notice
37. On making a decision on the review, the registrar of the tribunal must 5
send a written copy of the tribunal's decision and the reasons for it to the 6
applicant and the local Regulator or local Minister. 7
Division 4--Procedural provisions about reviews by the tribunal 8
powers of tribunal 9
Procedural
38.(1) The tribunal may, by written notice (an "attendance notice"), 10
require a person to attend a proceeding before the tribunal at a stated time 11
and place-- 12
(a) to give evidence; or 13
(b) to produce a stated document or thing. 14
(2) At the proceeding, the tribunal may proceed in the absence of a party 15
if reasonable notice of the time and place of the proceeding has been given 16
to the party. 17
(3) The tribunal may adjourn the proceeding from time to time. 18
of documents 19
Inspection
39.(1) If a document or thing is produced to the tribunal at a proceeding, 20
the tribunal may-- 21
(a) inspect the document or thing; and 22
(b) make copies of, photograph, or take extracts from, the document 23
or thing if it is relevant to the proceeding. 24
(2) The tribunal may also take possession of the document or thing, and 25
keep it while it is necessary for the proceeding. 26
(3) While it keeps a document or thing, the tribunal must permit a person 27
s 40 30 s 42
Gas Pipelines Access (Queensland)
otherwise entitled to possession of the document or thing to inspect, make 1
copies of, photograph, or take extracts from, the document or thing, at the 2
reasonable time and place the tribunal decides. 3
4
Offences
40.(1) A person served with an attendance notice must not-- 5
(a) fail, without reasonable excuse, to attend as required by the notice; 6
or 7
(b) fail, without reasonable excuse, to continue to attend as required 8
by the chairperson of the tribunal until excused from further 9
attendance. 10
Maximum penalty--10 penalty units. 11
(2) A person appearing as a witness at a proceeding must not-- 12
(a) fail to take an oath or make an affirmation when required by the 13
chairperson; or 14
(b) fail, without reasonable excuse, to answer a question the person is 15
required to answer by a member of the tribunal; or 16
(c) fail, without reasonable excuse, to produce a document or thing 17
the person is required to produce by an attendance notice. 18
Maximum penalty--10 penalty units. 19
20
Self-incrimination
41. It is a reasonable excuse for a person to fail to answer a question or to 21
produce a document if answering the question or producing the document 22
might tend to incriminate the person. 23
or misleading information 24
False
42.(1) A person must not state anything to the tribunal the person knows 25
is false or misleading in a material particular. 26
Maximum penalty--10 penalty units. 27
s 43 31 s 45
Gas Pipelines Access (Queensland)
(2) For an offence against subsection (1), it is enough to allege and prove 1
that the statement was `false or misleading' to the person's knowledge. 2
or misleading documents 3
False
43.(1) A person must not give to the tribunal a document containing 4
information the person knows is false, misleading or incomplete in a 5
material particular. 6
Maximum penalty--10 penalty units. 7
(2) Subsection (1) does not apply to a person who, when giving the 8
document-- 9
(a) informs the tribunal, to the best of the person's ability, how it is 10
false, misleading or incomplete; and 11
(b) gives the correct information to the tribunal if the person has, or 12
can reasonably obtain, the correct information. 13
(3) For an offence against subsection (1), it is enough to allege and prove 14
that the document was `false, misleading or incomplete' to the person's 15
knowledge. 16
to keep records of proceedings 17
Tribunal
44.(1) The tribunal must keep a record of its proceeding. 18
(2) The record may be kept in the way the tribunal considers appropriate. 19
Division 5--Other provisions about the tribunal 20
of interests 21
Disclosure
45.(1) If a member of the tribunal is, or is to be, a member of the tribunal 22
as constituted for a proceeding for the review of a decision and the member 23
has or acquires an interest (whether pecuniary or otherwise) that could 24
conflict with the proper performance of the member's functions in relation 25
to the proceeding-- 26
(a) the member must disclose the interest to the parties to the 27
proceeding; and 28
s 46 32 s 47
Gas Pipelines Access (Queensland)
(b) except with the consent of all parties to the proceeding--the 1
member must not take part in the proceeding or exercise any 2
powers in relation to the proceeding. 3
(2) If the chairperson of the tribunal becomes aware that a member of the 4
tribunal who is, or is to be, a member of the tribunal as constituted for a 5
proceeding for the review of a decision, has, in relation to the proceeding, an 6
interest of the type mentioned in subsection (1)-- 7
(a) if the chairperson considers the member should not take part, or 8
continue to take part, in the proceeding--the chairperson must 9
direct the member accordingly; or 10
(b) in any other case--the chairperson must cause the interest of the 11
member to be disclosed to the parties to the proceeding if the 12
interest has not already been disclosed to them. 13
of tribunal 14
Contempt
46. A person must not-- 15
(a) insult the tribunal or a member of the tribunal; or 16
(b) deliberately interrupt a proceeding of the tribunal; or 17
(c) create or continue or join in creating or continuing, a disturbance 18
in or near a place where the tribunal is conducting a proceeding; 19
or 20
(d) do anything that would be contempt of court if the tribunal were a 21
judge acting judicially. 22
Maximum penalty--10 penalty units. 23
of members, legal representatives and witnesses 24
Protection
47.(1) A member of the tribunal has, in relation to the performance of the 25
member's duties, the same protection and immunity as a Supreme Court 26
judge. 27
(2) A lawyer or other person has, in relation to appearing before the 28
tribunal for someone else, the same protection and immunity as a barrister 29
appearing for a party in a proceeding in the Supreme Court. 30
s 48 33 s 50
Gas Pipelines Access (Queensland)
(3) A person required to attend, or appearing before the tribunal as a 1
witness, has, in relation to the attendance or appearance, the same protection 2
as a witness in a proceeding in the Supreme Court. 3
of documents 4
Authentication
48. A document requiring authentication by the tribunal is sufficiently 5
authenticated if it is signed by a member of the tribunal. 6
notice of certain signatures 7
Judicial
49. Judicial notice must be taken of the signature of a member of the 8
tribunal if it appears on a document issued by the tribunal. 9
10
Confidentiality
50.(1) This section applies to a person who-- 11
(a) is or has been-- 12
(i) a member of the tribunal; or 13
(ii) a member of a subcommittee of the tribunal; or 14
(iii) the registrar or other public service officer appointed to assist 15
the tribunal; and 16
(b) in that capacity, or because of an opportunity provided by acting 17
in that capacity, acquired information about another person's 18
affairs or has access to, or custody of, a document about another 19
person's affairs. 20
(2) The person must not disclose the information, or give access to the 21
document, to anyone else. 22
Maximum penalty--100 penalty units or 1 year's imprisonment. 23
(3) However, a person may disclose the information or give access to the 24
document to someone else-- 25
(a) to the extent necessary to perform the person's functions under 26
this Act; or 27
(b) if the disclosure or giving of access is otherwise required or 28
s 51 34 s 52
Gas Pipelines Access (Queensland)
permitted by law; or 1
(c) if the person to whom the information or document relates agrees 2
to the disclosure or giving of access. 3
Division 6--Subcommittees 4
and technical subcommittees 5
Advisory
51.(1) The tribunal may appoint the advisory subcommittees and 6
technical subcommittees it considers appropriate to advise it on anything 7
within the scope of its function. 8
(2) A person may be appointed to be a member of a subcommittee 9
whether or not the person is a member of the tribunal. 10
(3) The tribunal must appoint 1 of the members of a subcommittee as 11
chairperson of the subcommittee. 12
(4) A public service officer may be appointed as a member of a 13
subcommittee and holds the appointment in conjunction with any other 14
appointment the officer holds in the public service. 15
of subcommittees 16
Proceedings
52.(1) All business of a subcommittee must be conducted by a quorum 17
of at least 3 members. 18
(2) A subcommittee must meet at the time and place it decides and 19
conduct its proceedings in the way provided under a regulation, or if no way 20
is provided, in the way it considers appropriate. 21
(3) The chairperson of a subcommittee must preside at all meetings of 22
the subcommittee at which the chairperson is present. 23
(4) If the chairperson is absent, the member chosen by the members 24
present at the meeting must preside. 25
(5) The person who presides at the meeting of a subcommittee has a 26
deliberative vote and, if the votes are equal, a casting vote. 27
s 53 35 s 55
Gas Pipelines Access (Queensland)
power for pt 4 1
Regulation-making
53. The Governor in Council may make regulations under this part. 2
ART 5--MISCELLANEOUS 3
P
from taxes 4
Exemption
54.(1) Any stamp duty or other tax imposed under a law of this State is 5
not payable for-- 6
(a) an exempt matter; or 7
(b) anything done because of, or arising out of, an exempt matter 8
including, for example, a transaction entered into or an instrument 9
or document made, executed, lodged or given. 10
(2) In this section-- 11
"exempt matter" means a transfer of assets or liabilities that the local 12
Minister and the Treasurer are satisfied is made for ensuring a person 13
does not carry on a business of producing, purchasing or selling 14
natural gas in breach of the Code or for the separation of certain 15
activities from other activities of a person as required by the Code, and 16
for no other purpose. 17
in relation to cross-boundary pipelines 18
Actions
55.(1) If a pipeline is a cross-boundary pipeline, an action taken under the 19
gas pipelines access legislation of a scheme participant in whose 20
jurisdictional area a part of the pipeline is situated-- 21
(a) by, or in relation to, a relevant Minister, or a relevant Regulator, 22
under that legislation; or 23
(b) by, or in relation to, an arbitrator appointed by a relevant 24
Regulator under that legislation; or 25
(c) by the Federal Court, or by the Supreme Court, or the relevant 26
appeals body, under that legislation, in relation to the action taken 27
by, or in relation to, a person or body referred to in paragraph (a) 28
s 56 36 s 56
Gas Pipelines Access (Queensland)
or (b); 1
is taken also to be action taken under the gas pipelines access legislation of 2
each other scheme participant in whose jurisdictional area a part of the 3
pipeline is situated ("that other legislation")-- 4
(d) by, or in relation to, a relevant Minister, or relevant Regulator, 5
under that other legislation; or 6
(e) by, or in relation to, an arbitrator appointed by a relevant 7
Regulator under that other legislation; or 8
(f) by the Federal Court, or by the Supreme Court, or relevant 9
appeals body, under that other legislation; 10
as the case requires. 11
(2) In this section-- 12
"action" taken, includes a decision made. 13
"cross-boundary pipeline" means a transmission pipeline, or a 14
distribution pipeline, that is, or is to be, situated in the jurisdictional 15
areas of 2 or more scheme participants. 16
PART 6--LOCAL TRANSITIONAL PROVISIONS 17
for pt 6 18
Definitions
56. In this part-- 19
"pipeline licence" of a particular number means a pipeline licence of that 20
number under the Petroleum Act 1923. 21
"PNG to Queensland pipeline" means the whole or part of-- 22
(a) the natural gas pipeline, proposed before the commencement of 23
this Act, to be constructed from near Kutubu in Papua New 24
Guinea to a point in the vicinity of Gladstone under the project 25
called the `Papua New Guinea-Queensland Gas Project'; and 26
(b) any branch line of the pipeline approved by the local Minister that 27
was proposed, before the commencement of this Act, to be 28
s 57 37 s 58
Gas Pipelines Access (Queensland)
constructed. 1
"Queensland part of the PNG to Queensland pipeline" means that part 2
of the PNG to Queensland pipeline proposed to be within the State or 3
the coastal waters of the State for which a competitive selection 4
process was, before the commencement of this Act, being undertaken 5
for consideration by the Minister under the Petroleum Act 1923, 6
section 70A.9 7
taken to be covered pipelines 8
Pipelines
57. The following pipelines are taken to be covered pipelines for the Gas 9
Pipelines Access Law-- 10
(a) the pipeline mentioned in pipeline licence no. 32 (Gatton to 11
Gympie); 12
(b) the pipeline mentioned in pipeline licence no. 41 (Ballera to Mt 13
Isa); 14
(c) the PNG to Queensland pipeline. 15
tariffs for certain pipelines 16
Reference
58.(1) This section applies to the following pipelines-- 17
(a) the pipeline mentioned in pipeline licence no. 2 (Wallumbilla to 18
Brisbane); 19
(b) the pipeline mentioned in pipeline licence no. 24 (Ballera to 20
Wallumbilla); 21
(c) the pipeline mentioned in pipeline licence no. 30 (Wallumbilla to 22
Rockhampton System); 23
(d) the pipeline mentioned in pipeline licence no. 32 (Gatton to 24
Gympie); 25
(e) the pipeline mentioned in pipeline licence no. 41 (Ballera to Mt 26
Isa). 27
9 Petroleum Act 1923, section 70A (Powers that may be exercised after
competitive selection process).
s 59 38 s 59
Gas Pipelines Access (Queensland)
(2) The Minister may once only, by gazette notice made before 1 July 1
1998, approve a tariff arrangement for each pipeline. 2
(3) The approved tariff arrangement is taken to be approved under the 3
Gas Pipelines Access Law as the reference tariff and reference tariff policy 4
for the access arrangement to be submitted under the Law for the pipeline 5
until the revisions commencement date for the access arrangement. 6
(4) The revisions submission date and the revisions commencement date 7
mentioned in the reference tariff policy is taken to be the revisions 8
submission date and the revisions commencement date for the access 9
arrangement to be submitted under the Gas Pipelines Access Law for the 10
pipeline. 11
principles for the Queensland part of the PNG to Queensland 12
Access
pipeline 13
59.(1) This section applies to the Queensland part of the PNG to 14
Queensland pipeline if access principles for the pipeline are-- 15
(a) submitted to the local Minister within 1 year after the 16
commencement of this Act; and 17
(b) approved by the local Minister within 1 year after the access 18
principles are submitted to the local Minister. 19
(2) The provisions of the Petroleum Act 1923 about access principles 20
continue to apply to the pipeline until access principles for the pipeline are 21
approved by the local Minister and agreed to by the ACCC.10 22
(3) The approved access principles are taken to be approved under the 23
Gas Pipeline Access Law as the access arrangements for the pipeline and 24
the revisions submission date mentioned in the approved access principles 25
is taken to be the revisions submission date under the Law.11 26
10 Under the Trade Practices Act 1974 (Cwlth), section 44ZZM, the ACCC has the
function of advising the local Minister in relation to access principles under the
Petroleum Act 1923 for the PNG to Queensland pipeline.
11 Access principles for the adjacent area can not take effect other than with the
approval of the Commonwealth Minister under the Gas Pipelines Access
(Commonwealth) Act 1998.
s 60 39 s 62
Gas Pipelines Access (Queensland)
principles for certain other pipelines 1
Access
60. The Petroleum Act 1923, part 8 continues to apply to the following 2
pipelines but only until the relevant Regulator approves the access 3
arrangements for the pipeline under the Gas Pipelines Access Law-- 4
(a) the pipeline mentioned in pipeline licence no. 2 (Wallumbilla to 5
Brisbane); 6
(b) the pipeline mentioned in pipeline licence no. 24 (Ballera to 7
Wallumbilla); 8
(c) the pipeline mentioned in pipeline licence no. 30 (Wallumbilla to 9
Rockhampton system); 10
(d) the pipeline mentioned in pipeline licence no. 32 (Gatton to 11
Gympie); 12
(e) the pipeline licence mentioned in pipeline licence no. 41 (Ballera 13
to Mt Isa). 14
PART 7--CONSEQUENTIAL AMENDMENTS 15
1--Amendment of Acts Interpretation Act 1954 16
Division
amended in div 1 17
Act
61. This division amends the Acts Interpretation Act 1954. 18
of s 36 (Meaning of commonly used words and 19
Amendment
expressions) 20
62. Section 36-- 21
insert-- 22
` "Gas Pipelines Access (Queensland) Law" means the provisions 23
applying because of the Gas Pipelines Access (Queensland) Act 1998, 24
section 8, and includes the Gas Pipelines Access (Queensland) 25
Regulations. 26
s 63 40 s 65
Gas Pipelines Access (Queensland)
"Gas Pipelines Access (Queensland) Regulations" means the provisions 1
applying because of the Gas Pipelines Access (Queensland) Act 1998, 2
section 9.'. 3
Division 2--Amendment of Gas Act 1965 4
amended in div 2 5
Act
63. This division amends the Gas Act 1965. 6
of s 5 (Definitions) 7
Amendment
64. Section 5-- 8
insert-- 9
` "contestable consumer" see section 5B. 10
"non-contestable consumer" see section 5C.'. 11
of new s 5B 12
Insertion
65. Part 1, after section 5A-- 13
insert-- 14
of "contestable consumer" 15
`Meaning
`5B.(1) From 1 January 2000 until 31 August 2001, a consumer of gas 16
is a "contestable consumer" for premises if the consumer's actual 17
consumption of gas at the premises in the previous financial year is at least 18
100 terajoules. 19
`(2) However, if the consumer has not been a consumer at the premises 20
for the whole of the previous financial year or there has been a change that 21
will significantly increase the consumer's consumption of gas at the 22
premises, the consumer is a contestable consumer for the premises if the 23
consumer's projected consumption of gas at the premises is at least 100 24
terajoules. 25
`(3) If the gas supplier for the premises does not agree with the 26
s 66 41 s 66
Gas Pipelines Access (Queensland)
consumer's projected consumption of gas, the Minister must decide the 1
projected consumption. 2
`(4) From 1 September 2001, all consumers of gas are "contestable 3
consumers". 4
`(5) In this section-- 5
"gas" means natural gas as defined under the Gas Pipelines Access 6
(Queensland) Law, section 2. 7
"gas supplier" means a natural gas supplier. 8
of "non-contestable consumer" 9
`Meaning
`5C.(1) A "non-contestable consumer" is-- 10
(a) from the commencement of this section until 31 December 11
1999--a consumer of gas at premises within a franchise area; or 12
(b) from 1 January 2000 until 31 August 2001--a consumer of gas 13
(other than a contestable consumer) at premises within a franchise 14
area. 15
`(2) A consumer is a "new non-contestable consumer" if-- 16
(a) the consumer is a non-contestable consumer for premises within 17
a franchise area; and 18
(b) a franchise holder has not previously supplied gas to a consumer 19
at the premises. 20
`(3) In this section-- 21
"gas" means natural gas as defined under the Gas Pipelines Access 22
(Queensland) Law, section 2.'. 23
of new s 11 24
Insertion
66. Part 3, before section 12-- 25
insert-- 26
of pt 3 and sch 1 to Gas Pipelines Access (Queensland) 27
`Relationship
Law 28
`11. If there is an inconsistency between a provision of this part or 29
s 67 42 s 69
Gas Pipelines Access (Queensland)
schedule 1 and the Gas Pipelines Access (Queensland) Law, the Law 1
prevails to the extent of the inconsistency.'. 2
of s 20 (Provisions applicable to a reticulation system) 3
Amendment
67. Section 20(1A), after `section 52C'-- 4
insert-- 5
`or 52D'. 6
of s 52C (Restriction on constructing and maintaining 7
Amendment
pipe) 8
68. Section 52C, before subsection (1)-- 9
insert-- 10
`(1A) This section does not apply to a pipe that is a pipeline as defined 11
under the Gas Pipelines Access (Queensland) Law, section 2.'. 12
of new s 52D 13
Insertion
69. After section 52C-- 14
insert-- 15
on constructing and maintaining distribution pipeline 16
`Restriction
`52D.(1) A person must not construct or maintain a distribution pipeline 17
for supplying gas to a consumer from outside the premises of the consumer 18
unless-- 19
(a) the person is the current holder of the franchise for the area where 20
the pipeline is to be constructed or maintained; or 21
(b) the person is authorised under a regulation to construct or 22
maintain the pipeline; or 23
(c) the pipeline and all associated fittings are contained completely 24
within a single parcel of land; or 25
(d) the premises are contiguous with other premises and-- 26
(i) all the premises are occupied by-- 27
s 69 43 s 69
Gas Pipelines Access (Queensland)
(A) if the premises consist of lots shown on a building 1
units plan or a group titles plan under the Building 2
Units and Group Titles Act 1980--the members of the 3
body corporate for the plan; or 4
(B) if the premises consist of lots included in a community 5
titles scheme under the Body Corporate and 6
Community Management Act 1997--the members of 7
the body corporate for the scheme; or 8
(C) tenants of the same landlord; and 9
(ii) the pipeline and all associated fittings are contained wholly 10
within the perimeter of the contiguous premises. 11
Maximum penalty--20 penalty units. 12
`(2) A person who is convicted of an offence against subsection (1)-- 13
(a) commits a continuing offence for each day after the day of 14
conviction while the person continues to construct or maintain a 15
pipe in contravention of subsection (1); and 16
(b) is liable to a penalty of 20 penalty units for each day after 17
conviction while the offence continues; and 18
(c) may be charged in 1 complaint for the offence for a period. 19
`(3) For subsection (1)(b), if the pipeline is to be in a franchise area, a 20
regulation may only authorise a person to construct or maintain the pipeline 21
for supplying gas to-- 22
(a) a new non-contestable consumer; or 23
(b) a contestable consumer. 24
`(4) The authorisation may be given on stated conditions. 25
`(5) If the authorisation is given on conditions, the authorisation operates 26
only if the conditions are complied with. 27
`(6) In this section-- 28
"conviction" includes a plea of guilty or a finding of guilt by a court even 29
though a conviction is not recorded. 30
"distribution pipeline" means a pipe that is a distribution pipeline as 31
defined under the Gas Pipelines Access (Queensland) Law, section 2. 32
s 70 44 s 70
Gas Pipelines Access (Queensland)
"gas" means natural gas as defined under the Gas Pipelines Access 1
(Queensland) Law, section 2. 2
on sale of gas in franchise area 3
`Restriction
`52E.(1) A person must not sell gas in a franchise area to a consumer 4
unless-- 5
(a) the person is the current holder of the franchise for the area; or 6
(b) the consumer is a contestable consumer; or 7
(c) the person is authorised under a regulation to sell the gas to the 8
consumer. 9
Maximum penalty--20 penalty units. 10
`(2) A regulation under subsection (1)(c) may only authorise a person to 11
sell gas in a franchise area to a new non-contestable consumer. 12
`(3) The authorisation may be given on stated conditions. 13
`(4) If the authorisation is given on conditions, the authorisation operates 14
only if the conditions are complied with. 15
`(5) In this section-- 16
"gas" means natural gas as defined under the Gas Pipelines Access 17
(Queensland) Law, section 2.'. 18
of s 64 (Regulation-making power) 19
Amendment
70. Section 64-- 20
insert-- 21
`(2A) If there is an inconsistency between a provision of a regulation 22
made for a purpose mentioned in schedule 2 and the Gas Pipelines Access 23
(Queensland) Law, the Law prevails to the extent of the inconsistency.'. 24
s 71 45 s 75
Gas Pipelines Access (Queensland)
Division 3--Amendment of Petroleum Act 1923 1
amended in div 3 2
Act
71. This division amends the Petroleum Act 1923. 3
of s 7 (Application of Act) 4
Amendment
72. Section 7-- 5
insert-- 6
`(3) If there is an inconsistency between a provision of this Act and the 7
Gas Pipelines Access (Queensland) Law, the Law prevails to the extent of 8
the inconsistency.'. 9
of s 69 (Pipeline licences) 10
Amendment
73. Section 69(2)-- 11
insert-- 12
`(c) the pipeline is a pipeline as defined under the Gas Pipelines 13
Access (Queensland) Law, section 2.12'. 14
of s 70 (Access principles to be approved before grant of 15
Amendment
pipeline licence) 16
74. Section 70-- 17
insert-- 18
`(5) Also, this section does not apply to a pipeline as defined under the 19
Gas Pipelines Access (Queensland) Law, section 2.'. 20
of s 104 (Application of part to pipelines) 21
Amendment
75. Section 104(1)-- 22
omit, insert-- 23
12 The Law applies to pipelines for transporting natural gas.
s 76 46 s 77
Gas Pipelines Access (Queensland)
`104.(1) This part applies to all licensed pipelines, and pipelines owned 1
by the corporation sole, other than-- 2
(a) subject to the Gas Pipelines Access (Queensland) Law, sections 3
59 and 60, a pipeline as defined under section 2 of the Law; or 4
(b) a pipeline declared under a regulation.'. 5
4--Amendment of Petroleum (Submerged Lands) Act 1982 6
Division
amended in div 4 7
Act
76. This division amends the Petroleum (Submerged Lands) Act 1982. 8
of new s 6A 9
Insertion
77. After section 6-- 10
insert-- 11
of Act to Gas Pipelines Access (Queensland) Law 12
`Relationship
`6A. If there is an inconsistency between a provision of this Act and the 13
Gas Pipelines Access (Queensland) Law, the Law prevails to the extent of 14
the inconsistency.'. 15
16
47
Gas Pipelines Access (Queensland)
ATTACHMENT 1
GAS PIPELINES ACCESS (SOUTH AUSTRALIA) ACT 2
1997 3
An Act to make provision for the regulation of third party access to 4
natural gas pipeline systems; to repeal the Natural Gas Pipelines 5
Access Act 1995; to amend the Gas Act 1997 and the Petroleum Act 6
1940; and for other purposes. 7
Preamble 8
The Council of Australian Governments agreed, in February 1994, to 9
general principles of competition policy reform to enable third parties, in 10
particular circumstances, to gain access to essential facilities. 11
The Council of Australian Governments, as part of that commitment to 12
reform, agreed to more specific proposals for the development of free and 13
fair trade in natural gas. 14
The Commonwealth, the States of New South Wales, Victoria, 15
Queensland, South Australia, Western Australia and Tasmania, the 16
Northern Territory and the Australian Capital Territory agreed in November 17
1997 to the enactment of legislation in the Commonwealth and those States 18
and Territories so that a uniform national framework applies for third party 19
access to all gas pipelines that-- 20
(a) facilitates the development and operation of a national market for 21
natural gas; and 22
(b) prevents abuse of monopoly power; and 23
(c) promotes a competitive market for natural gas in which 24
customers may choose suppliers, including producers, retailers 25
and traders; and 26
(d) provides rights of access to natural gas pipelines on conditions 27
that are fair and reasonable for the owners and operators of gas 28
transmission and distribution pipelines and persons wishing to 29
use the services of those pipelines; and 30
(e) provides for resolution of disputes. 31
s1 48 s3
Gas Pipelines Access (Queensland)
ATTACHMENT (continued)
The Parliament of South Australia enacts as follows-- 1
PART 1--PRELIMINARY 2
title 3
Short
1. This Act may be cited as the Gas Pipelines Access (South Australia) 4
Act 1997. 5
6
Commencement
2.(1) This Act will come into operation on a day to be fixed by 7
proclamation, not being a day earlier than the day on which the Gas 8
Pipelines Access (Commonwealth) Act 1997 of the Commonwealth 9
receives the Royal Assent. 10
(2) The Governor may, by the same proclamation or by proclamations 11
made on different days, fix different days for the commencement of 12
different provisions of this Act, including the different provisions of 13
schedule 1. 14
15
Interpretation
3.(1) In this Act-- 16
"Gas Pipelines Access Law" means-- 17
(a) Schedule 1-- 18
(i) as enacted; or 19
(ii) if amended, as amended and in force for the time being; and 20
(b) the National Third Party Access Code for Natural Gas Pipeline 21
Systems (a copy of which, as agreed by the Council of Australian 22
Governments on 7 November 1997, is set out in Schedule 2) or, 23
if that Code is amended in accordance with Schedule 1, that Code 24
as so amended and in force for the time being. 25
s4 49 s6
Gas Pipelines Access (Queensland)
ATTACHMENT (continued)
"Gas Pipelines Access (South Australia) Law" means the provisions 1
applying because of section 7. 2
"Gas Pipelines Access (South Australia) Regulations" means the 3
provisions applying because of section 8. 4
(2) Words and expressions used in Schedule 1, as applying because of 5
section 7, and in this Act have the same respective meanings in this Act as 6
they have in that Schedule as so applying. 7
(3) Subsection (2) does not apply to the extent that the context or subject 8
matter otherwise indicates or requires. 9
rown to be bound 10
C
4. This Act, the Gas Pipelines Access (South Australia) Law and the Gas 11
Pipelines Access (South Australia) Regulations bind the Crown, not only in 12
the right of South Australia but also, so far as the legislative power of the 13
Parliament permits, the Crown in all its other capacities. 14
to coastal waters 15
Application
5.(1) This Act, the Gas Pipelines Access (South Australia) Law and the 16
Gas Pipelines Access (South Australia) Regulations apply in the coastal 17
waters of this State. 18
(2) In subsection (1)-- 19
"coastal waters", in relation to this State, means any sea that is on the 20
landward side of the adjacent area of this State but is not within the 21
limits of this State. 22
operation 23
Extra-territorial
6.(1) It is the intention of the Parliament that the operation of this Act, the 24
Gas Pipelines Access (South Australia) Law and the Gas Pipelines Access 25
(South Australia) Regulations should, as far as possible, include operation 26
in relation to the following-- 27
(a) things situated in or outside this State; 28
s7 50 s8
Gas Pipelines Access (Queensland)
ATTACHMENT (continued)
(b) acts, transactions and matters done, entered into or occurring in or 1
outside this State; 2
(c) things, acts, transactions and matters (wherever situated, done, 3
entered into or occurring) that would, apart from this Act, be 4
governed or otherwise affected by the law of another State, a 5
Territory, the Commonwealth or a foreign country. 6
(2) Nothing in subsection (1) has effect in relation to a pipeline to the 7
extent that the pipeline is situated, or partly situated, beyond the 8
jurisdictional areas of all the scheme participants. 9
PART 2--GAS PIPELINES ACCESS (SOUTH 10
AUSTRALIA) LAW AND GAS PIPELINES ACCESS 11
(SOUTH AUSTRALIA) REGULATIONS 12
in South Australia of the Gas Pipelines Access Law 13
Application
7. The Gas Pipelines Access Law-- 14
(a) applies as a law of South Australia; and 15
(b) as so applying may be referred to as the Gas Pipelines Access 16
(South Australia) Law. 17
of regulations under Gas Pipelines Access Law 18
Application
8. The regulations in force for the time being under part 3 of this Act-- 19
(a) apply as regulations in force for the purposes of the Gas 20
Pipelines Access (South Australia) Law; and 21
(b) as so applying may be referred to as the Gas Pipelines Access 22
(South Australia) Regulations. 23
s9 51 s9
Gas Pipelines Access (Queensland)
ATTACHMENT (continued)
of some expressions in the Gas Pipelines Access (South 1
Interpretation
Australia) Law and Gas Pipelines Access (South Australia) 2
Regulations 3
9. In the Gas Pipelines Access (South Australia) Law and the Gas 4
Pipelines Access (South Australia) Regulations-- 5
"Code" means the National Third Party Access Code for Natural Gas 6
Pipeline Systems (a copy of which, as agreed by the Council of 7
Australian Governments on 7 November 1997, is set out in 8
Schedule 2) or, if that Code is amended in accordance with Schedule 1, 9
that Code as so amended and in force for the time being, as it applies 10
because of section 7 as a law of South Australia. 11
"the Court" means the Supreme Court or the Federal Court. 12
"designated appeals body" means the local appeals body. 13
"designated Minister" means the local Minister. 14
"Gas Pipelines Access Law" or "this Law" means the Gas Pipelines 15
Access (South Australia) Law. 16
"Legislature" means the Parliament of South Australia. 17
"local appeals body" means the South Australian Gas Review Board. 18
"local Minister" means the Minister to whom administration of this Act is 19
committed. 20
"local Regulator" means the person holding or acting in the office of the 21
South Australian Independent Pricing and Access Regulator. 22
"this scheme participant" means the State of South Australia. 23
"Supreme Court" means the Supreme Court of South Australia. 24
s 10 52 s 12
Gas Pipelines Access (Queensland)
ATTACHMENT (continued)
PART 3--POWER TO MAKE REGULATIONS FOR 1
THE GAS PIPELINES ACCESS LAW 2
regulation-making power for Gas Pipelines Access Law 3
General
10.(1) The Governor may make regulations for or with respect to any 4
matter or thing necessary to be prescribed to give effect to the Gas Pipelines 5
Access Law. 6
(2) A regulation under this part may be made only on the unanimous 7
recommendation of the relevant Ministers of the scheme participants. 8
(3) The appendix to schedule 1 applies in relation to a regulation under 9
this part. 10
(4) Section 10 of the Subordinate Legislation Act 1978 does not apply to 11
a regulation under this Part. 12
penalty provisions of the Gas Pipelines Access Law 13
Civil
11.(1) The regulations may provide that-- 14
(a) a specified regulatory provision or a regulatory provision of a 15
specified class; or 16
(b) a specified conduct provision or a conduct provision of a 17
specified class, 18
is, for the purposes of the Gas Pipelines Access Law, a civil penalty 19
provision. 20
(2) The regulations may prescribe, for a breach of a civil penalty 21
provision, an amount not exceeding $100 000 that the Court may determine 22
is payable by a person who contravenes the provision. 23
regulation-making powers 24
Specific
12. The regulations may make provision for or with respect to-- 25
s 13 53 s 13
Gas Pipelines Access (Queensland)
ATTACHMENT (continued)
(a) prescribing, for the purposes of the definition of "pipeline" in 1
schedule 1, gas processing plants, exit flanges and connection 2
points; 3
(b) the procedure and conduct of arbitrations under part 4 of 4
schedule 1; 5
(c) the person or persons required to make available copies of-- 6
(i) the Code as set out in Schedule 2; 7
(ii) that Code, if amended, as amended and in force for the time 8
being; 9
(iii) amendments made to that Code; 10
(d) the place or places at which the copies referred to in paragraph (c) 11
are to be available for inspection by the public. 12
ART 4--NATIONAL ADMINISTRATION AND 13
P
ENFORCEMENT 14
1--Conferral of functions and powers 15
Division
of functions on Commonwealth Minister and 16
Conferral
Commonwealth bodies 17
13.(1) The Commonwealth Minister, the ACCC, the NCC and the 18
Australian Competition Tribunal have the functions and powers conferred 19
or expressed to be conferred on them respectively under the Gas Pipelines 20
Access (South Australia) Law. 21
(2) In addition to the powers mentioned in subsection (1), the 22
Commonwealth Minister and the bodies referred to in that subsection have 23
power to do all things necessary or convenient to be done in connection 24
with the performance or exercise of the functions and powers referred to in 25
that subsection. 26
s 14 54 s 16
Gas Pipelines Access (Queensland)
ATTACHMENT (continued)
of power on Commonwealth Minister and Commonwealth 1
Conferral
bodies to do acts in this State 2
14. The Commonwealth Minister, the ACCC, the NCC and the 3
Australian Competition Tribunal have power to do acts in or in relation to 4
this State in the performance or exercise of a function or power expressed to 5
be conferred on them respectively by the gas pipelines access legislation of 6
another scheme participant. 7
of power on Ministers, Regulators and appeals bodies of 8
Conferral
other scheme participants 9
15. The local Minister, the local Regulator and the local appeals body 10
within the meaning of the gas pipelines access legislation of another scheme 11
participant have power to do acts in or in relation to this State in the 12
performance or exercise of a function or power expressed to be conferred 13
on them respectively by the gas pipelines access legislation of that other 14
scheme participant. 15
of functions on Code Registrar 16
Conferral
16.(1) The Code Registrar-- 17
(a) has the functions and powers conferred or expressed to be 18
conferred on the Code Registrar under the Gas Pipelines Access 19
(South Australia) Law or under the National Gas Agreement; and 20
(b) any other functions and powers conferred on the Code Registrar 21
by unanimous resolution of the relevant Ministers of the scheme 22
participants. 23
(2) In addition to the powers mentioned in subsection (1), the Code 24
Registrar has power to do all things necessary or convenient to be done in 25
connection with the performance or exercise of the functions and powers 26
referred to in that subsection. 27
s 17 55 s 19
Gas Pipelines Access (Queensland)
ATTACHMENT (continued)
and powers conferred on South Australian Minister, 1
Functions
Regulator and appeals body 2
17. If the gas pipelines access legislation of another scheme participant 3
confers a function or power on-- 4
(a) the Minister; or 5
(b) the person holding or acting in the office of the South Australian 6
Independent Pricing and Access Regulator; or 7
(c) the South Australian Gas Review Board, 8
the Minister, person or Board-- 9
(d) may perform that function or exercise that power; and 10
(e) may do all things necessary or convenient to be done in 11
connection with the performance or exercise of that function or 12
power. 13
2--Federal Court 14
Division
of Federal Court 15
Jurisdiction
18. Jurisdiction is conferred on the Federal Court with respect to-- 16
(a) civil and criminal matters arising under the Gas Pipelines Access 17
(South Australia) Law; and 18
(b) applications made to the Federal Court under the Administrative 19
Decisions (Judicial Review) Act 1977 of the Commonwealth as 20
applying as a law of this State under section 20 or 21. 21
of jurisdiction on Federal Court not to affect cross-vesting 22
Conferral
19. Section 18 does not affect the operation of any law relating to cross- 23
vesting of jurisdiction. 24
s 20 56 s 20
Gas Pipelines Access (Queensland)
ATTACHMENT (continued)
3--Administrative decisions 1
Division
of Commonwealth AD(JR) Act 2
Application
20.(1) The Administrative Decisions (Judicial Review) Act 1977 of the 3
Commonwealth applies as a law of this State to any matter arising in 4
relation to a decision of a Code body under the Gas Pipelines Access (South 5
Australia) Law as if that Law were an enactment within the meaning of that 6
Act and not a law of this State. 7
(2) For the purposes of the application of the Administrative Decisions 8
(Judicial Review) Act 1977 of the Commonwealth as a law of this State, a 9
matter arising in relation to a decision of a Code body under the Gas 10
Pipelines Access (South Australia) Law-- 11
(a) is taken to be a matter arising in relation to laws of the 12
Commonwealth in the same way as if the Gas Pipelines Access 13
(South Australia) Law were a law of the Commonwealth; and 14
(b) is taken not to be a matter arising in relation to laws of this State. 15
(3) In this section-- 16
"Code body" means-- 17
(a) the NCC; 18
(b) the ACCC; 19
(c) the Australian Competition Tribunal; 20
(d) the local appeals body within the meaning of the Gas Pipelines 21
Access (South Australia) Law; 22
(e) the local Minister within the meaning of the Gas Pipelines Access 23
(South Australia) Law; 24
(f) the local Regulator within the meaning of the Gas Pipelines 25
Access (South Australia) Law; 26
(g) an arbitrator appointed under part 4 of the Gas Pipelines Access 27
(South Australia) Law. 28
s 21 57 s 21
Gas Pipelines Access (Queensland)
ATTACHMENT (continued)
of Commonwealth AD(JR) Act in relation to other 1
Application
scheme participants 2
21.(1) The Administrative Decisions (Judicial Review) Act 1977 of the 3
Commonwealth applies as a law of this State to any matter arising in 4
relation to a decision of a Code body under the gas pipelines access 5
legislation of another scheme participant as if that legislation were an 6
enactment within the meaning of that Act and not a law of that scheme 7
participant. 8
(2) For the purposes of the application of the Administrative Decisions 9
(Judicial Review) Act 1977 of the Commonwealth as a law of this State, a 10
matter arising in relation to a decision of a Code body under the gas 11
pipelines access legislation of another scheme participant-- 12
(a) is taken to be a matter arising in relation to laws of the 13
Commonwealth in the same way as if that legislation were a law 14
of the Commonwealth; and 15
(b) is taken not to be a matter arising in relation to laws of that 16
scheme participant. 17
(3) This section does not require, prohibit, empower, authorise or 18
otherwise provide for, the doing of an act outside this State. 19
(4) In this section-- 20
"Code body" means-- 21
(a) the NCC; 22
(b) the ACCC; 23
(c) the Australian Competition Tribunal; 24
(d) the local appeals body within the meaning of the Gas Pipelines 25
Access (South Australia) Law; 26
(e) the local Minister within the meaning of the Gas Pipelines Access 27
(South Australia) Law; 28
(f) the local Regulator within the meaning of the Gas Pipelines 29
Access (South Australia) Law; 30
s 22 58 s 23
Gas Pipelines Access (Queensland)
ATTACHMENT (continued)
(g) an arbitrator appointed under part 4 of the Gas Pipelines Access 1
(South Australia) Law. 2
PART 5--GENERAL 3
from taxes 4
Exemption
22.(1) Any stamp duty or other tax imposed by or under a law of this 5
State is not payable in relation to-- 6
(a) an exempt matter; or 7
(b) anything done (including, for example, a transaction entered into 8
or an instrument or document made, executed, lodged or given) 9
because of, or arising out of, an exempt matter. 10
(2) In this section-- 11
"exempt matter" means a transfer of assets or liabilities that the Minister 12
and the Treasurer are satisfied is made for the purpose of ensuring that 13
a person does not carry on a business of producing, purchasing or 14
selling natural gas in breach of the Code or for the purpose of the 15
separation of certain activities from other activities of a person as 16
required by the Code, and for no other purpose. 17
in relation to cross-boundary pipelines 18
Actions
23.(1) If a pipeline is a cross-boundary pipeline, any action taken under 19
the gas pipelines access legislation of a scheme participant in whose 20
jurisdictional area a part of the pipeline is situated-- 21
(a) by, or in relation to, a relevant Minister, or a relevant Regulator, 22
within the meaning of that legislation; or 23
(b) by, or in relation to, an arbitrator appointed by a relevant 24
Regulator within the meaning of that legislation; or 25
s 24 59 s 24
Gas Pipelines Access (Queensland)
ATTACHMENT (continued)
(c) by the Federal Court, or by the Supreme Court, or the relevant 1
appeals body, within the meaning of that legislation, in relation to 2
the action taken by, or in relation to, a person or body referred to 3
in paragraph (a) or (b), 4
is taken also to be action taken under the gas pipelines access 5
legislation of each other scheme participant in whose jurisdictional area 6
a part of the pipeline is situated ("that other legislation")-- 7
(d) by, or in relation to, a relevant Minister, or relevant Regulator, 8
within the meaning of that other legislation; or 9
(e) by, or in relation to, an arbitrator appointed by a relevant 10
Regulator within the meaning of that other legislation; or 11
(f) by the Federal Court, or by the Supreme Court, or relevant 12
appeals body, within the meaning of that other legislation, 13
as the case requires. 14
(2) In this section-- 15
"cross-boundary pipeline" means a transmission pipeline, or a 16
distribution pipeline, that is, or is to be, situated in the jurisdictional 17
areas of 2 or more scheme participants. 18
(3) A reference in this section to an action that is taken includes a 19
reference to a decision that is made. 20
Legislation Act 1978 21
Subordinate
24. The Subordinate Legislation Act 1978 does not apply to the National 22
Third Party Access Code for Natural Gas Pipeline Systems referred to in 23
paragraph (b) of the definition of Gas Pipelines Access Law in section 3(1) 24
of this Act. 25
s 25 60 s 26
Gas Pipelines Access (Queensland)
ATTACHMENT (continued)
PART 6--LOCAL ADMINISTRATION AND 1
ENFORCEMENT 2
Division 1--Code registrar 3
Registrar 4
Code
25.(1) There will be a Code Registrar. 5
(2) The Code Registrar will be appointed by the Governor. 6
(3) The Code Registrar is appointed, and holds office, in accordance with 7
the Public Sector Management Act 1995. 8
(4) The Code Registrar may be removed from office by resolution 9
passed by at least two-thirds of the relevant Ministers of the scheme 10
participants. 11
(5) Subsection (4) does not derogate from the provisions of the Public 12
Sector Management Act 1995 relating to removal of an employee from 13
office. 14
15
Delegation
26.(1) The Code Registrar may delegate functions or powers to a person 16
or body of persons that is, in the Code Registrar's opinion, competent to 17
exercise the relevant functions or powers. 18
(2) A delegation under this section-- 19
(a) must be in writing; and 20
(b) may be conditional or unconditional; and 21
(c) is revocable at will; and 22
(d) does not prevent the delegator from acting in any matter. 23
s 27 61 s 30
Gas Pipelines Access (Queensland)
ATTACHMENT (continued)
report 1
Annual
27.(1) The Code Registrar must, within three months after the end of 2
each financial year, deliver to the Minister a report on the Code Registrar's 3
operations during that financial year. 4
(2) The Minister must have a copy of the report laid before both Houses 5
of Parliament within 12 sitting days after receipt of the report. 6
(3) The Code Registrar must, as soon as practicable after delivering a 7
report to the Minister, provide a copy of the report to the relevant Minister 8
of each of the other scheme participants. 9
10
Immunity
28.(1) No personal liability attaches to the Code Registrar or a delegate of 11
the Code Registrar for an act or omission in good faith in the exercise or 12
discharge, or purported exercise or discharge, of official powers or 13
functions of the Code Registrar or delegate. 14
(2) A liability that would, but for subsection (1), lie against a person, lies 15
instead against the Crown. 16
Division 2--Local regulator 17
Australian Independent Pricing and Access Regulator 18
South
29.(1) There will be a South Australian Independent Pricing and Access 19
Regulator. 20
(2) The Regulator will be appointed by the Governor. 21
(3) The Regulator is not a member of the Public Service nor is the 22
Regulator an employee for the purposes of the Public Sector Management 23
Act 1995 (other than Part 2 of that Act). 24
unctions and powers 25
F
30.(1) The Regulator has-- 26
s 31 62 s 32
Gas Pipelines Access (Queensland)
ATTACHMENT (continued)
(a) the functions and powers conferred on the local Regulator under 1
the Gas Pipelines Access (South Australia) Law; and 2
(b) the functions and powers conferred on the local Regulator under 3
the National Gas Agreement. 4
(2) In performing functions the Regulator should make appropriate use 5
of the expertise of the Technical Regulator under the Gas Act 1997 in 6
relation to safety or technical standards in the gas supply industry. 7
of Regulator 8
Independence
31. The Regulator (or a person acting in the office of Regulator) is 9
entirely independent of direction or control by the Crown or any Minister or 10
officer of the Crown in the performance of the Regulator's functions and 11
powers. 12
of office etc. 13
Term
32.(1) The Regulator will be appointed for a term of office of not less 14
than 3 years and not more than 5 years and is, on the expiration of a term of 15
office, eligible for reappointment. 16
(2) The conditions of office of the Regulator will, subject to this 17
Division, be determined by the Governor. 18
(3) The conditions of office of the Regulator must not be varied while the 19
Regulator is in office so as to become less favourable to the Regulator. 20
(4) The Governor may remove the Regulator from office for-- 21
(a) misconduct; or 22
(b) neglect of duty; or 23
(c) incapacity to carry out official duties satisfactorily; or 24
(d) failure to comply with this Division or the conditions of the 25
Regulator's appointment. 26
(5) The office of Regulator becomes vacant if the Regulator-- 27
(a) dies; or 28
s 33 63 s 34
Gas Pipelines Access (Queensland)
ATTACHMENT (continued)
(b) completes a term of office and is not reappointed; or 1
(c) resigns by written notice to the Governor; or 2
(d) is convicted of an indictable offence or sentenced to 3
imprisonment for an offence; or 4
(e) becomes bankrupt or applies as a debtor to take the benefit of the 5
laws relating to bankruptcy; or 6
(f) becomes a member of the legislature of this State, another State, a 7
Territory of the Commonwealth or the Commonwealth; or 8
(g) is removed from office by the Governor under subsection (4). 9
10
Delegation
33.(1) The Regulator may delegate functions or powers to a person or 11
body of persons that is, in the Regulator's opinion, competent to exercise the 12
relevant functions or powers. 13
(2) A delegation under this section-- 14
(a) must be in writing; and 15
(b) may be conditional or unconditional; and 16
(c) is revocable at will; and 17
(d) does not prevent the delegator from acting in any matter. 18
of interest 19
Conflict
34.(1) The Regulator must inform the Minister in writing of-- 20
(a) any direct or indirect interest that the Regulator has or acquires in 21
any business, or in any body corporate carrying on business, in 22
Australia or elsewhere; or 23
(b) any other direct or indirect interest that the Regulator has or 24
acquires that conflicts or may conflict with the Regulator's duties. 25
(2) The Minister may-- 26
s 35 64 s 36
Gas Pipelines Access (Queensland)
ATTACHMENT (continued)
(a) direct the Regulator to resolve a conflict between a direct or 1
indirect interest and a duty of the Regulator in relation to a 2
particular matter; and 3
(b) if the conflict is not resolved to the Minister's satisfaction, 4
disqualify the Regulator from acting in relation to the matter. 5
Regulator 6
Acting
35.(1) The Governor may appoint a person to act in the office of the 7
Regulator under this section and a person so appointed has, while so acting, 8
all the powers, duties and functions of the Regulator. 9
(2) A person appointed under subsection (1) may act in the office of the 10
Regulator-- 11
(a) while the Regulator is temporarily unable to perform official 12
duties; 13
(b) while the office of the Regulator is temporarily vacant; 14
(c) if the Regulator is disqualified from acting in relation to a 15
particular matter--in relation to that matter. 16
(3) Subject to this Division, the terms and conditions of appointment of 17
the person appointed under subsection (1) will be as determined, from time 18
to time, by the Governor. 19
20
Staff
36.(1) The Regulator's staff consists of-- 21
(a) Public Service employees assigned, from time to time with the 22
agreement of the Regulator, to work in the office of the Regulator; 23
and 24
(b) persons appointed by the Regulator for the purposes of this 25
Division. 26
(2) While a public service employee is assigned to work in the office of 27
the Regulator-- 28
s 37 65 s 38
Gas Pipelines Access (Queensland)
ATTACHMENT (continued)
(a) the Regulator has administrative authority over the employee to 1
the exclusion of any other person; and 2
(b) the salary and allowances of the employee must be paid out of 3
moneys appropriated by Parliament for the purposes of this 4
Division. 5
(3) The Minister may, by notice in the South Australian Government 6
Gazette-- 7
(a) exclude Public Service employees on the Regulator's staff from 8
specified provisions of the Public Sector Management Act 1995; 9
and 10
(b) if the Minister thinks that certain provisions should apply to such 11
employees instead of those from which they are excluded under 12
paragraph (a)--determine that those provisions will so apply, 13
and such a notice has effect in accordance with its terms. 14
(4) The terms and conditions of employment of a person appointed 15
under subsection (1)(b) will be determined by the Governor and such a 16
person is not a Public Service employee. 17
(5) The Regulator may, on terms arranged with a person with appropriate 18
authority, make use of the services of a Public Service employee or use 19
facilities of the Public Service. 20
required for purposes of division 21
Money
37. The money required for the purposes of this division is to be paid out 22
of money appropriated by Parliament for those purposes. 23
24
Expenditure
38. Except as authorised by the Minister, the Regulator may only incur 25
expenditure in a financial year-- 26
(a) for-- 27
(i) staff purposes; and 28
(ii) other purposes approved by the Minister; and 29
s 39 66 s 41
Gas Pipelines Access (Queensland)
ATTACHMENT (continued)
(b) within a general expenditure limit fixed by the Minister for that 1
financial year. 2
management 3
Financial
39.(1) The Regulator must ensure that proper accounting records are kept 4
of its receipts and expenditures. 5
(2) The Regulator's accounting records must conform with any 6
applicable instructions issued by the Treasurer under section 41 of the 7
Public Finance and Audit Act 1987. 8
(3) The Auditor-General may at any time, and must at least once in each 9
year, audit the accounts of the Regulator. 10
report 11
Annual
40.(1) The Regulator must, within three months after the end of each 12
financial year, deliver to the Minister a report on the Regulator's operations 13
during that financial year. 14
(2) The Minister must have a copy of the report laid before both Houses 15
of Parliament within 12 sitting days after receipt of the report. 16
17
Immunity
41.(1) No personal liability attaches to the Regulator, acting Regulator, 18
delegate of the Regulator or a person acting under the direction or authority 19
of the Regulator for an act or omission in good faith in the exercise or 20
discharge, or purported exercise or discharge, of official powers or 21
functions. 22
(2) A liability that would, but for subsection (1), lie against a person, lies 23
instead against the Crown. 24
s 42 67 s 43
Gas Pipelines Access (Queensland)
ATTACHMENT (continued)
Division 3--Appeals body 1
Australian Gas Review Board 2
South
42.(1) The South Australian Gas Review Board is established. 3
(2) The Board will be constituted, in relation to particular proceedings 4
before the Board, of-- 5
(a) a presiding member, being a legal practitioner chosen by the 6
Attorney-General from a panel of legal practitioners established 7
under this Division; and 8
(b) two experts chosen by the presiding member from a panel of 9
experts established under this Division. 10
(3) The Board may, at any one time, be separately constituted in 11
accordance with this section for the hearing and determination of any 12
number of separate matters. 13
(4) If an expert hearing proceedings dies or is for any reason unable to 14
continue with the proceedings, the Board constituted of the presiding 15
member and the other expert may, if the presiding member so determines, 16
continue and complete the proceedings. 17
(5) There will be a Registrar of the Board. 18
19
Panels
43.(1) For the purposes of this division, the Governor will establish-- 20
(a) a panel of legal practitioners each of whom is of not less than 21
7 years standing; 22
(b) a panel of experts each of whom has relevant expertise in 23
industry, commerce or accounting. 24
(2) A member of a panel who has a personal or a direct or indirect 25
pecuniary interest in a matter before the Board is disqualified from 26
participating in the hearing of the matter. 27
s 44 68 s 45
Gas Pipelines Access (Queensland)
ATTACHMENT (continued)
(3) A member of a panel will be appointed for a term of office of not 1
more than 5 years and is, on the expiration of a term of office, eligible for 2
reappointment. 3
(4) Despite a person ceasing to be a member of a panel through expiry of 4
a period of office, the person may continue as a member of the Board for 5
the purpose of completing part-heard proceedings. 6
governing hearings 7
Principles
44.(1) Subject to the Gas Pipelines Access (South Australia) Law and 8
any determination of the Board, proceedings before the Board are to be 9
conducted by way of a fresh hearing and for that purpose the Board may 10
receive evidence given orally or, if the Board determines, by affidavit. 11
(2) The Board-- 12
(a) is not bound by the rules of evidence and may inform itself as it 13
thinks fit; and 14
(b) must act according to equity, good conscience and the substantial 15
merits of the case and without regard to technicalities and forms. 16
(3) Questions of law or procedure arising before the Board will be 17
determined by the presiding member and other questions by unanimous or 18
majority decision of the members. 19
and procedures of the Board 20
Powers
45.(1) The Board may, for the purposes of proceedings before the 21
Board-- 22
(a) by summons signed on behalf of the Board by a member of the 23
Board or the Registrar, require the attendance of a person before 24
the Board; or 25
(b) by summons signed on behalf of the Board by a member of the 26
Board or the Registrar, require the production before the Board of 27
any relevant books, papers or documents; or 28
s 45 69 s 45
Gas Pipelines Access (Queensland)
ATTACHMENT (continued)
(c) inspect any books, papers or documents produced before it and 1
retain them for such reasonable period as it thinks fit and makes 2
copies of any of them or any of their contents; or 3
(d) require any person to make an oath or affirmation to answer truly 4
all questions put by a member of the Board, or a person 5
appearing before the Board, relating to a matter before the Board; 6
or 7
(e) require any person appearing before the Board to answer any 8
relevant questions put by a member of the Board or by a person 9
appearing before the Board. 10
(2) A person who-- 11
(a) has been served with a summons to appear before the Board and 12
fails, without reasonable excuse, to attend in obedience to the 13
summons; or 14
(b) has been served with a summons to produce books, papers or 15
documents and fails, without reasonable excuse, to comply with 16
the summons; or 17
(c) misbehaves before the Board, wilfully insults the Board or any 18
member of the Board, or interrupts the proceedings of the Board; 19
or 20
(d) refuses to be sworn or to affirm, or to answer any relevant 21
question when required to do so by the Board, 22
is guilty of an offence. 23
Maximum penalty--$10 000. 24
(3) The Board may-- 25
(a) sit at any time or place; 26
(b) adjourn proceedings from time to time and from place to place; 27
(c) refer a matter to an expert for report and accept the expert's report 28
in evidence. 29
(4) The Registrar must give the parties to proceedings reasonable notice 30
of the time and place of the proceedings. 31
s 46 70 s 47
Gas Pipelines Access (Queensland)
ATTACHMENT (continued)
(5) A party is entitled to appear before the Board personally or by 1
counsel or other representative. 2
(6) Subject to the Gas Pipelines Access (South Australia) Law, a party 3
must be allowed a reasonable opportunity to call or give evidence, to 4
examine or cross-examine witnesses and to make submissions to the 5
Board. 6
(7) The Board may make a determination in any proceedings in the 7
absence of a party to the proceedings if satisfied that the party was given 8
reasonable opportunity to appear but failed to do so. 9
(8) At the conclusion of proceedings, the Board must give to each party a 10
written statement of the reasons for its decision. 11
12
Immunity
46. No civil liability attaches to a member of the Board or the Registrar 13
of the Board for an act or omission by the Board, or by the member or 14
Registrar, in good faith in the exercise or discharge, or purported exercise or 15
discharge, of official powers or functions. 16
Division 4--Miscellaneous 17
18
Regulations
47.(1) The Governor may make such regulations as are contemplated by, 19
or necessary or expedient for the purposes of, the application of this Act in 20
this State. 21
(2) Without limiting the generality of subsection (1), the regulations may 22
fix fees in respect of any matter under this Act and provide for the waiver or 23
refund of such fees. 24
s 48 71 s 48
Gas Pipelines Access (Queensland)
ATTACHMENT (continued)
ART 7--LOCAL TRANSITIONAL AND 1
P
CONSEQUENTIAL PROVISIONS 2
1--Transitional provisions 3
Division
tariffs during transitional period 4
Reference
48.(1) In approving access arrangements under the Gas Pipelines Access 5
(South Australia) Law that will have effect during the transitional period, the 6
South Australian Independent Pricing and Access Regulator-- 7
(a) must take into account the need to manage the transition to 8
reference tariffs fixed in accordance with the principles set out in 9
the Law in an orderly fashion so as to avoid sudden significant 10
increases in the prices paid by consumers for services provided 11
by means of Code pipelines; and 12
(b) for that purpose, may require adjustments to be made to the 13
reference tariffs that would otherwise apply in accordance with 14
the principles set out in the law during the transitional period. 15
(2) An access arrangement must set out the nature of, and the reasons 16
for, an adjustment of a reference tariff under this section. 17
(3) In this section-- 18
"transitional period" means the period from the commencement of this 19
section to the date on which all consumers within the meaning of the 20
Gas Act 1997 are classified as contestable consumers for the purposes 21
of that Act. 22
s 49 72 s 50
Gas Pipelines Access (Queensland)
ATTACHMENT (continued)
2--Consequential amendments 1
Division
Subdivision 1--Preliminary 2
3
Interpretation
49. A reference in this Division to the principal Act is a reference to the 4
Act referred to in the heading to the Subdivision in which the reference 5
occurs. 6
Subdivision 2--Repeal of Natural Gas Pipelines Access Act 1995 7
8
Repeal
50.(1) The Natural Gas Pipelines Access Act 1995 (the former 9
legislation) is repealed. 10
(2) However, the former legislation (except Part 2) continues to apply in 11
relation to a Code pipeline until an access arrangement is approved under 12
the Gas Pipelines Access (South Australia) Law in relation to the pipeline. 13
(3) The regulations may modify the former legislation (including any 14
regulations made under the former legislation) for the purposes of its 15
continued application under subsection (2). 16
(4) Arbitration or legal proceedings under the former legislation relating 17
to a Code pipeline that have commenced but not been completed when an 18
access arrangement is approved in relation to the pipeline under the Gas 19
Pipelines Access (South Australia) Law may be continued under the former 20
legislation as if an access arrangement had not been so approved. 21
(5) For the purposes of this section, arbitration proceedings will be taken 22
to have commenced under the former legislation if a proponent of an access 23
proposal has, in accordance with that legislation, asked the regulator to refer 24
an access dispute to arbitration. 25
s 51 73 s 54
Gas Pipelines Access (Queensland)
ATTACHMENT (continued)
(6) An award of an arbitrator under the former legislation relating to a 1
Code pipeline will have effect as a determination of an arbitrator under the 2
Gas Pipelines Access (South Australia) Law. 3
3--Amendment of Gas Act 1997 4
Subdivision
of s 8--Functions 5
Amendment
51. Section 8 of the principal Act is amended by inserting after 6
paragraph (d) of subsection (1) the following paragraph-- 7
`(da)the provision of advice in relation to safety or technical standards 8
in the gas supply industry to the South Australian Independent 9
Pricing and Access Regulator at that regulator's request; and'. 10
of s 11--Obligation to preserve confidentiality 11
Amendment
52. Section 11 of the principal Act is amended by inserting in 12
subsection (2) `or the Gas Pipelines Access (South Australia) Law' after 13
`assisting the Pricing Regulator)'. 14
of s 18--Obligation to preserve confidentiality 15
Amendment
53. Section 18 of the principal Act is amended by inserting in 16
subsection (2) `or the Gas Pipelines Access (South Australia) Law' after 17
`assisting the Technical Regulator)'. 18
of s 24--Licence fees and returns 19
Amendment
54. Section 24 of the principal Act is amended by inserting in 20
subsection (3)(b) `and the Gas Pipelines Access (South Australia) Act 21
1997' after `this Act'. 22
s 55 74 s 55
Gas Pipelines Access (Queensland)
ATTACHMENT (continued)
4--Amendment of Petroleum Act 1940 1
Subdivision
of s. 80L--Minister may require operator to convey 2
Amendment
petroleum 3
55. Section 80L of the principal Act is amended by inserting after 4
subsection (2) the following subsection-- 5
`(3) This section does not apply in relation to the conveyance of 6
petroleum by means of a Code pipeline within the meaning of the Gas 7
Pipelines Access (South Australia) Law for which there is an approved 8
access arrangement under that Law.'. 9
10
75
Gas Pipelines Access (Queensland)
ATTACHMENT (continued)
CHEDULE 1 1
¡S
THIRD PARTY ACCESS TO NATURAL GAS 2
PIPELINES 3
PART 1--PRELIMINARY 4
5
Citation
1. This schedule and the National Third Party Access Code for Natural 6
Gas Pipeline Systems set out in Schedule 2 or, if that Code is amended in 7
accordance with this schedule, that Code as so amended and in force for the 8
time being may together be referred to as the Gas Pipelines Access Law. 9
10
Definitions
2. In this Law-- 11
"ACCC" means the Australian Competition and Consumer Commission 12
established by section 6A of the Trade Practices Act 1974 of the 13
Commonwealth and includes a member of the Commission or a 14
Division of the Commission performing functions of the 15
Commission. 16
"adjacent area", in respect of a State or Territory, means the area that is 17
identified in section 5A of the Petroleum (Submerged Lands) Act 1967 18
of the Commonwealth as the adjacent area in respect of that State or 19
Territory. 20
"asset" means any legal or equitable estate or interest (whether present or 21
future and whether vested or contingent) in real or personal property of 22
any description (including money) and includes securities, choses in 23
action and documents. 24
"Australian Competition Tribunal" means the Australian Competition 25
Tribunal referred to in the Trade Practices Act 1974 of the 26
76
Gas Pipelines Access (Queensland)
ATTACHMENT (continued)
Commonwealth and includes a member of the Tribunal or a Division 1
of the Tribunal performing functions of the Tribunal. 2
"civil penalty provision" means-- 3
(a) section 13 or 40; or 4
(b) a provision of the Code that, under the regulations, is a civil 5
penalty provision for the purposes of this Law. 6
"Code pipeline" has the same meaning as "covered pipeline" has in the 7
Code. 8
"Code Registrar" means a person appointed to or acting in the position of 9
Code Registrar appointed under the Gas Pipelines Access (South 10
Australia) Act 1997 of South Australia. 11
"Commonwealth Minister" means the local Minister within the meaning 12
of the gas pipelines access legislation of the Commonwealth; 13
"commencement date", in relation to a provision of this Law, means the 14
date on which that provision comes into operation for this scheme 15
participant. 16
"conduct provision" means-- 17
(a) section 13; or 18
(b) a provision of the Code that, under the Code, is a conduct 19
provision for the purposes of this Law. 20
"cross-boundary pipeline" means a distribution pipeline that is situated in 21
the jurisdictional areas of 2 or more scheme participants. 22
"distribution pipeline" means a pipeline-- 23
(a) that is described in the Code as a distribution pipeline and has not 24
been reclassified as a transmission pipeline; or 25
(b) that is classified in accordance with this Law as a distribution 26
pipeline, 27
and includes any extension or expansion of such a pipeline that, under 28
an access arrangement under the Code, is to be treated as part of the 29
pipeline. 30
77
Gas Pipelines Access (Queensland)
ATTACHMENT (continued)
"Federal Court" means the Federal Court of Australia. 1
"gas pipelines access legislation", in relation to a scheme participant, 2
means-- 3
(a) in the case of South Australia-- 4
(i) Parts 1, 2, 3, 4 and 5 of the Gas Pipelines Access (South 5
Australia) Act 1997 of South Australia; and 6
(ii) regulations in force under Part 3 of that Act; and 7
(iii) the Gas Pipelines Access Law (within the meaning of 8
section 3(1) of that Act), as applying as a law of South 9
Australia; and 10
(b) in the case of Western Australia-- 11
(i) provisions of an Act of Western Australia that substantially 12
correspond to the provisions of Parts 1, 2, 3, 4 and 5 of the 13
South Australian Act; and 14
(ii) regulations in force under the Western Australia Act that 15
make provisions substantially corresponding to the 16
provisions of regulations under Part 3 of the South 17
Australian Act; and 18
(iii) provisions that substantially correspond to the provisions 19
referred to in paragraph (a) of the definition of Gas Pipelines 20
Access Law in section 3(1) of the South Australian Act; and 21
(iv) the provisions referred to in paragraph (b) of that definition, 22
as applying as a law of Western Australia; 23
(c) in the case of any other scheme participant-- 24
(i) provisions of an Act of the scheme participant that 25
substantially correspond to the provisions of Parts 1, 2, 4 26
and 5 of the South Australian Act; and 27
(ii) regulations in force under Part 3 of the South Australian Act, 28
as applying as a law of that scheme participant; and 29
78
Gas Pipelines Access (Queensland)
ATTACHMENT (continued)
(iii) the Gas Pipelines Access Law (within the meaning of 1
section 3(1) of the South Australian Act), as applying as a 2
law of that scheme participant. 3
"jurisdictional area", in relation to a scheme participant, means-- 4
(a) if the scheme participant is the Commonwealth-- 5
(i) if the gas pipelines access legislation in force in the 6
Commonwealth applies in the adjacent area of a State or the 7
Northern Territory because of section 9(1A) or 11(1A) of 8
the P(SL) Act--the adjacent area in respect of that State or 9
Territory; and 10
(ii) if the gas pipelines access legislation in force in the 11
Commonwealth applies in an external Territory under 12
section 8 of the Gas Pipelines Access (Commonwealth) Act 13
1997 of the Commonwealth--the area within the limits of 14
that Territory and the adjacent area in respect of that 15
Territory; and 16
(iii) if the gas pipelines access legislation in force in the 17
Commonwealth applies in the Jervis Bay Territory under 18
section 8 of the Gas Pipelines Access (Commonwealth) Act 19
1997 of the Commonwealth--the area within the limits of 20
that Territory; and 21
(b) if the scheme participant is a State or the Northern Territory-- 22
(i) the area within the limits of that State or Territory and 23
includes all waters in the area described in Schedule 2 to the 24
P(SL) Act that relates to that State or Territory that are on the 25
landward side of the adjacent area in respect of that State or 26
Territory; and 27
(ii) if the gas pipelines access legislation of that State or 28
Territory applies in the adjacent area in respect of that State 29
or Territory because of section 9(1) or 11(1) of the P(SL) 30
Act--the adjacent area in respect of that State or Territory; 31
and 32
79
Gas Pipelines Access (Queensland)
ATTACHMENT (continued)
(iii) if the gas pipelines access legislation of that State or 1
Territory applies in an external Territory in accordance with 2
an Act in force in the Commonwealth--the area within the 3
limits of that external Territory and the adjacent area in 4
respect of that external Territory; and 5
(c) if the scheme participant is the Australian Capital Territory-- 6
(i) the area within the limits of that Territory; and 7
(ii) if the gas pipelines access legislation of that Territory applies 8
in an external Territory in accordance with an Act in force in 9
the Commonwealth--the area within the limits of that 10
external Territory and the adjacent area in respect of that 11
external Territory; and 12
(iii) if the gas pipelines access legislation in force in that Territory 13
applies in the Jervis Bay Territory in accordance with an Act 14
in force in the Commonwealth--the area within the limits of 15
that Territory. 16
"liabilities" means all liabilities, duties and obligations, whether actual, 17
contingent or prospective. 18
"National Gas Agreement" means the Natural Gas Pipelines Access 19
Agreement relating to third party access to natural gas pipeline systems 20
entered into by the Commonwealth, the States of New South Wales, 21
Victoria, Queensland, South Australia, Western Australia and 22
Tasmania and the Australian Capital Territory and the Northern 23
Territory on 7 November 1997. 24
"natural gas" means a substance-- 25
(a) which is in a gaseous state at standard temperature and pressure 26
and which consists of naturally occurring hydrocarbons, or a 27
naturally occurring mixture of hydrocarbons and non- 28
hydrocarbons, the principal constituent of which is methane; and 29
(b) which has been processed to be suitable for consumption. 30
"NCC" means the National Competition Council established by 31
section 29A of the Trade Practices Act 1974 of the Commonwealth. 32
80
Gas Pipelines Access (Queensland)
ATTACHMENT (continued)
"pipeline" means a pipe, or system of pipes, or part of a pipe, or system of 1
pipes, for transporting natural gas, and any tanks, reservoirs, 2
machinery or equipment directly attached to the pipe, or system of 3
pipes, but does not include-- 4
(a) unless paragraph (b) applies, anything upstream of a prescribed 5
exit flange on a pipeline conveying natural gas from a prescribed 6
gas processing plant; or 7
(b) if a connection point upstream of an exit flange on such a pipeline 8
is prescribed, anything upstream of that point; or 9
(c) a gathering system operated as part of an upstream producing 10
operation; or 11
(d) any tanks, reservoirs, machinery or equipment used to remove or 12
add components to or change natural gas (other than odourisation 13
facilities) such as a gas processing plant; or 14
(e) anything downstream of the connection point to a consumer. 15
"P(SL) Act" means the Petroleum (Submerged Lands) Act 1967 of the 16
Commonwealth. 17
"regulation" means a regulation made under Part 3 of the Gas Pipelines 18
Access (South Australia) Act 1997 of South Australia. 19
"regulatory provision" means-- 20
(a) section 40; or 21
(b) a provision of the Code that, under the Code, is a regulatory 22
provision for the purposes of this Law. 23
"relevant appeals body" means-- 24
(a) in relation to a decision of the Commonwealth Minister or the 25
ACCC, the Australian Competition Tribunal; 26
(b) in relation to a decision of the local Minister, the designated 27
appeals body; 28
(c) in relation to a decision of the local Regulator, the local appeals 29
body. 30
81
Gas Pipelines Access (Queensland)
ATTACHMENT (continued)
"relevant Minister"-- 1
(a) in relation to a scheme participant, means the local Minister 2
within the meaning of the gas pipelines access legislation of that 3
scheme participant; 4
(b) in relation to a decision under the Code as to whether a 5
transmission pipeline that is, or is to be, situated wholly within 6
the jurisdictional area of this scheme participant should be, or 7
should cease to be, a covered pipeline within the meaning of the 8
Code, means the designated Minister; 9
(c) in relation to a decision under the Code as to whether a 10
transmission pipeline that is, or is to be, situated in the 11
jurisdictional areas of 2 or more scheme participants, should be, 12
or should cease to be, a covered pipeline within the meaning of 13
the Code, means the Commonwealth Minister; 14
(d) in relation to a decision under the Code as to whether a 15
distribution pipeline that is, or is to be, situated wholly within the 16
jurisdictional area of this scheme participant should be, or should 17
cease to be, a covered pipeline within the meaning of the Code, 18
means the local Minister; 19
(e) in relation to a decision under the Code as to whether a 20
distribution pipeline that is, or is to be, situated in the 21
jurisdictional areas of 2 or more scheme participants should be, or 22
should cease to be, a covered pipeline within the meaning of the 23
Code, means the local Minister for the scheme participant with 24
which the pipeline is most closely connected, as determined under 25
Part 3. 26
"relevant Regulator"-- 27
(a) in relation to a transmission pipeline, or a matter concerning a 28
transmission pipeline or service provider of a transmission 29
pipeline, means the ACCC; 30
(b) in relation to a distribution pipeline, or a matter concerning a 31
distribution pipeline or service provider of a distribution pipeline, 32
that is, or is to be, situated wholly within the jurisdictional area of 33
this scheme participant, means the local Regulator; 34
82
Gas Pipelines Access (Queensland)
ATTACHMENT (continued)
(c) in relation to a distribution pipeline, or a matter concerning a 1
distribution pipeline or service provider of a distribution pipeline, 2
that is, or is to be, situated in the jurisdictional areas of 2 or more 3
scheme participants, means the local Regulator for the scheme 4
participant with which the pipeline is most closely connected, as 5
determined under Part 3. 6
"rights" means all rights, powers, privileges and immunities, whether 7
actual, contingent or prospective. 8
"scheme participant" means a State or Territory or the Commonwealth if, 9
under section 3, it is a scheme participant. 10
"service provider", in relation to a pipeline or proposed pipeline, means the 11
person who is, or is to be, the owner or operator of the whole or any 12
part of the pipeline or proposed pipeline. 13
"Territory" means the Australian Capital Territory or the Northern 14
Territory. 15
"transmission pipeline" means a pipeline-- 16
(a) that is described in the Code as a transmission pipeline and has 17
not been reclassified as a distribution pipeline; or 18
(b) that is classified in accordance with this Law as a transmission 19
pipeline, 20
and includes any extension or expansion of such a pipeline that, under 21
an access arrangement under the Code, is to be treated as part of the 22
pipeline. 23
participants 24
Scheme
3.(1) The Commonwealth, each of the States of New South Wales, 25
Victoria, Queensland, South Australia, Western Australia and Tasmania, 26
the Australian Capital Territory and the Northern Territory are scheme 27
participants. 28
(2) If-- 29
(a) the legislature of a scheme participant, other than South Australia, 30
Western Australia and Tasmania-- 31
83
Gas Pipelines Access (Queensland)
ATTACHMENT (continued)
(i) does not enact a law that substantially corresponds to 1
Parts 1, 2, 4 and 5 of the South Australian Act before the 2
expiration of one year after the enactment of that Act; or 3
(ii) having enacted such a law within that period, repeals it; or 4
(b) such a law, having been enacted, is not in operation before the 5
expiration of that period, 6
and the relevant Ministers of the other scheme participants so declare 7
in writing, the first-mentioned scheme participant ceases to be a 8
scheme participant. 9
(3) If-- 10
(a) parts 1, 2, 3, 4 and 5 of the South Australian Act are not in 11
operation before the expiration of one year after its enactment; and 12
(b) the relevant Ministers of the other scheme participants so declare 13
in writing, 14
South Australia ceases to be a scheme participant. 15
(4) If-- 16
(a) the legislature of Western Australia does not enact a law-- 17
(i) that contains provisions that substantially correspond to 18
parts 1, 2, 3, 4 and 5 of the South Australian Act; and 19
(ii) that contains provisions that substantially correspond to the 20
provisions referred to in paragraph (a) of the definition of 21
Gas Pipelines Access Law in section 3(1) of the South 22
Australian Act; and 23
(iii) that provides for the provisions referred to in paragraph (b) 24
of that definition to apply as a law of Western Australia; and 25
(iv) under which there are in force regulations that substantially 26
correspond to the regulations under Part 3 of the South 27
Australian Act, 28
before the expiration of one year after the enactment of that Act; 29
or 30
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Gas Pipelines Access (Queensland)
ATTACHMENT (continued)
(b) the legislature of Western Australia, having enacted such a law 1
within that period, repeals it; or 2
(c) such a law, having been enacted, is not in operation before the 3
expiration of that period, 4
and the relevant Ministers of the other scheme participants so declare 5
in writing, Western Australia ceases to be a scheme participant. 6
(5) If-- 7
(a) the relevant Ministers of the scheme participants, other than 8
Tasmania, are of the opinion that, in accordance with the National 9
Gas Agreement, Tasmania is required to seek the enactment by its 10
legislature of a law that corresponds to parts 1, 2, 4 and 5 of the 11
South Australian Act; and 12
(b) those relevant Ministers give notice accordingly to the relevant 13
Minister of Tasmania; and 14
(c) any of the following circumstances occur-- 15
(i) the legislature of Tasmania does not enact a law that 16
substantially corresponds to Parts 1, 2, 4 and 5 of the South 17
Australian Act before the expiration of 6 months after the 18
giving of the notice; or 19
(ii) the legislature of Tasmania, having enacted such a law 20
within that period, repeals it; or 21
(iii) such a law, having been enacted, is not in operation within 22
that period, 23
and the relevant Ministers of the other scheme participants so 24
declare in writing, Tasmania ceases to be a scheme participant. 25
(6) If the Commonwealth or a State or Territory ceases to be a scheme 26
participant, the Commonwealth, State or Territory becomes a scheme 27
participant again if-- 28
(a) it is a party to the National Gas Agreement; and 29
(b) there is in force a law of the Commonwealth, State or Territory of 30
a kind that, if not enacted and in operation, would cause the 31
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Commonwealth, State or Territory to cease to be a scheme 1
participant on a declaration under this section. 2
(7) If the Commonwealth or a State or Territory becomes a scheme 3
participant under subsection (6), the Commonwealth, State or Territory 4
ceases to be a scheme participant if-- 5
(a) there ceases to be in force a law of the Commonwealth, State or 6
Territory of the kind referred to in paragraph (b) of that 7
subsection; and 8
(b) the relevant Ministers of the other scheme participants so declare 9
in writing. 10
(8) If, at any time, all scheme participants agree that the Commonwealth 11
or a specified State or Territory will cease to be a scheme participant on a 12
specified date, the Commonwealth, State or Territory ceases to be a scheme 13
participant on that date. 14
(9) A notice must be published in the South Australian Government 15
Gazette of the date on which the Commonwealth or a State or Territory 16
becomes, or ceases to be, a scheme participant under subsection (2), (3), 17
(4), (5), (6), (7) or (8). 18
(10) If the legislature of the Commonwealth or a State or Territory enacts 19
a law while it is a scheme participant that, in the unanimous opinion of the 20
relevant Ministers of the other scheme participants, is inconsistent with this 21
Law, those other scheme participants may give notice to the relevant 22
Minister of the Commonwealth, State or Territory to the effect that, if the 23
inconsistent law remains in force as an inconsistent law for more than 24
6 months after the notice is given, the other scheme participants may declare 25
that the Commonwealth, State or Territory has ceased to be a scheme 26
participant. 27
(11) The Commonwealth or a State or Territory ceases to be a scheme 28
participant upon publication in the South Australian Government Gazette of 29
a declaration made by the Ministers of the other scheme participants in 30
accordance with subsection (10). 31
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(12) In this section-- 1
"South Australian Act" means the Gas Pipelines Access (South 2
Australia) Act 1997 of South Australia. 3
generally 4
Interpretation
4. The Appendix to this schedule contains miscellaneous provisions 5
relating to the interpretation of this law. 6
ART 2--NATIONAL THIRD PARTY ACCESS CODE 7
P
FOR NATURAL GAS PIPELINE SYSTEMS 8
Code 9
The
5. A provision of the Code that is inconsistent with a provision of this 10
Law (other than the Code) or of an Act of the legislature is of no effect to 11
the extent of the inconsistency. 12
of Code 13
Amendment
6.(1) If the relevant Ministers of the scheme participants have received 14
advice in accordance with any relevant provisions of the Code relating to 15
amendment of the Code, the relevant Ministers may, by agreement in 16
accordance with this Law, amend the Code to make provision for or with 17
respect to any matter relevant to the subject matter of the Code as set out in 18
Schedule 2 to the Gas Pipelines Access (South Australia) Act 1997 of South 19
Australia, as enacted. 20
(2) An agreement under subsection (1) must be made by all the relevant 21
Ministers unless subsection (3) applies. 22
(3) An agreement under subsection (1) may be made by two-thirds of 23
the relevant Ministers if it relates only to an amendment that-- 24
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(a) is not an amendment of a core provision within the meaning of 1
the Code; and 2
(b) does not extend the application of section 38; and 3
(c) does not insert a provision in the Code dealing with a matter not 4
dealt with in the Code as in force immediately before the 5
amendment is made. 6
(4) An agreement under subsection (1) is of no effect to the extent that it 7
amends, or purports to amend, or makes, or purports to make, provision 8
inconsistent with, a provision of the Code that specifies-- 9
(a) the matters about which the NCC must be satisfied in making a 10
recommendation under the Code as to whether a pipeline should 11
be, or should cease to be, a covered pipeline within the meaning 12
of the Code; or 13
(b) the matters about which the relevant Minister must be satisfied in 14
deciding under the Code whether a pipeline should be, or should 15
cease to be, a covered pipeline within the meaning of the Code. 16
(5) The relevant Ministers must ensure that-- 17
(a) a copy of each agreement made under this section is published in 18
the South Australian Government Gazette; and 19
(b) a notice of the making of each such agreement is published in a 20
daily newspaper circulating generally in Australia. 21
(6) An amendment of the Code under this section has effect on and from 22
the day on which the copy of the agreement for the amendment is published 23
in the South Australian Government Gazette or, if the agreement provides 24
that the amendment comes into operation on a later day, on and from that 25
later day. 26
(7) All conditions and preliminary steps required for the making of an 27
amendment of the Code are to be presumed to have been satisfied and 28
performed, in the absence of evidence to the contrary. 29
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of copies of amended Code 1
Availability
7. If the Code has been amended in accordance with section 6, the Code 2
Registrar-- 3
(a) must make a copy of the Code, as so amended, available for 4
inspection during ordinary working hours on business days at 5
such place or places as are prescribed by the regulations; and 6
(b) must ensure that copies of the Code, as so amended, are available 7
for purchase. 8
9
Evidence
8. A document purporting to be a copy of the Code as amended in 10
accordance with section 6 and endorsed with a certificate of the Code 11
Registrar certifying that the document is such a copy is evidence that the 12
document is such a copy. 13
PART 3--PIPELINES 14
15
Definitions
9.(1) In this Part-- 16
"authorised applicant", in relation to a pipeline, means-- 17
(a) a service provider of the pipeline; 18
(b) the ACCC; 19
(c) the NCC; 20
(d) a person who is a local Regulator within the meaning of the gas 21
pipelines access legislation of a scheme participant; 22
"classification" includes re-classification. 23
"classificationcriteria", in relation to a pipeline, means the criteria referred 24
to in subsection (2). 25
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"determination" includes re-determination. 1
"determination criteria", in relation to a pipeline and a scheme participant, 2
means the criteria referred to in subsection (3). 3
"pipeline" includes proposed pipeline. 4
(2) The classification criteria, in relation to a pipeline, are-- 5
(a) whether the primary function of the pipeline is-- 6
(i) to convey natural gas to a market (which is the primary 7
function of a transmission pipeline); or 8
(ii) to reticulate natural gas within a market (which is the 9
primary function of a distribution pipeline); 10
(b) whether the characteristics of the pipeline are those of a 11
transmission pipeline or a distribution pipeline having regard to 12
the characteristics and classification of the pipelines specified in 13
the Code as transmission pipelines or distribution pipelines and 14
to-- 15
(i) the diameter of the pipeline; 16
(ii) the pressure at which it is designed to operate; 17
(iii) the number of points at which gas can be fed into it; 18
(iv) the extent of the area served or to be served by it; 19
(v) its linear or dendritic configuration. 20
(3) The determination criteria, in relation to a pipeline and a scheme 21
participant, are-- 22
(a) whether more gas is to be delivered by the pipeline in the 23
jurisdictional area of that scheme participant than in the 24
jurisdictional area of any other scheme participant; 25
(b) whether more customers to be served by the pipeline are resident 26
in the jurisdictional area of that scheme participant than in the 27
jurisdictional area of any other scheme participant; 28
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(c) whether more of the network for the pipeline is in the 1
jurisdictional area of that scheme participant than in the 2
jurisdictional area of any other scheme participant; 3
(d) whether that scheme participant has greater prospects for growth 4
in the gas market served by the pipeline than any other scheme 5
participant; 6
(e) whether the regional economic benefits from competition are 7
likely to be greater for that scheme participant than for other 8
scheme participants. 9
for classification and determination of close connection 10
Application
for purposes of coverage under Code 11
10.(1) An authorised applicant may apply under this section-- 12
(a) for the classification of a pipeline as a transmission pipeline or a 13
distribution pipeline; and 14
(b) if the pipeline is, or is to be, situated in the jurisdictional area of 2 15
or more scheme participants and is classified as a result of the 16
application as a distribution pipeline, for the determination of the 17
scheme participant with which the pipeline is most closely 18
connected. 19
(2) If a distribution pipeline is, or is to be, extended so that it becomes, or 20
will become, a cross-boundary pipeline, an authorised applicant may apply 21
under this section for a determination of the scheme participant with which 22
the pipeline is most closely connected. 23
(3) An application under subsection (1) or (2) must be made in the form 24
approved by the Code Registrar-- 25
(a) to the relevant Minister of a scheme participant in the 26
jurisdictional area of which any part of the pipeline is or is to be 27
situated; or 28
(b) to the Commonwealth Minister. 29
(4) A Minister referred to in subsection (3) to whom the application is 30
made must forthwith give notice of the application-- 31
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(a) to each other Minister to whom the application could have been 1
made; and 2
(b) to the Code Registrar. 3
(5) The Ministers to whom the application is made or notified must, as 4
soon as possible-- 5
(a) in the case of an application under subsection (1)-- 6
(i) classify the pipeline, having regard to the classification 7
criteria, as a transmission pipeline or a distribution pipeline; 8
and 9
(ii) if the pipeline is, or is to be, situated in the jurisdictional 10
areas of 2 or more scheme participants, and is classified as a 11
distribution pipeline, determine the scheme participant with 12
which the pipeline is most closely connected, having regard 13
to the determination criteria and such other matters as the 14
Ministers consider relevant; or 15
(b) in the case of an application under subsection (2), determine the 16
scheme participant with which the pipeline is most closely 17
connected, having regard to the determination criteria and such 18
other matters as the Ministers consider relevant, 19
but, if the Ministers are unable to agree within a reasonable time on the 20
classification or determination, they must notify the Code Registrar 21
accordingly. 22
(6) If the Ministers agree on a classification and, if applicable, 23
determination, they must cause the Code Registrar and the relevant 24
Ministers of all other scheme participants to be notified of the decision. 25
(7) The relevant Minister of a scheme participant may, within 14 days 26
after receiving notification under subsection (6), object to the classification 27
or determination by writing given to the Code Registrar. 28
(8) If the Code Registrar receives no objection within the period referred 29
to in subsection (7), the Code Registrar-- 30
(a) must record the classification of the pipeline in accordance with 31
the agreement under subsection (6); and 32
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(b) must record the determination (if any) under that subsection; and 1
(c) must notify the NCC accordingly. 2
when Ministers do not agree 3
Classification
11.(1) If the Code Registrar-- 4
(a) is not notified within 42 days after receiving notice of an 5
application under section 10(1)-- 6
(i) that a pipeline has been classified by the Ministers as a 7
transmission pipeline or a distribution pipeline; and 8
(ii) if it is classified as a distribution pipeline and is, or is to be, 9
situated in the jurisdictional areas of 2 or more scheme 10
participants, that the scheme participant with which it is most 11
closely connected has been determined; or 12
(b) receives an objection under section 10(7), 13
the Code Registrar must notify the NCC that the classification or 14
determination has not been made or that an objection has been 15
received. 16
(2) The NCC must, within 14 days after receiving a notification under 17
subsection (1), give to the Commonwealth Minister and the relevant 18
Ministers of the scheme participants-- 19
(a) its recommendation as to the classification of the pipeline (having 20
regard to the classification criteria); and 21
(b) if the pipeline is classified as a distribution pipeline and is, or is to 22
be, situated in the jurisdictional areas of 2 or more scheme 23
participants, its determination (having regard to the determination 24
criteria) as to the scheme participant with which the pipeline is 25
most closely connected. 26
(3) Unless the Commonwealth Minister and the relevant Ministers 27
unanimously agree within 14 days after receiving the recommendation to 28
classify and, in the case of a distribution pipeline that is, or is to be, situated 29
in the jurisdictional areas of 2 or more scheme participants, make a 30
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determination in respect of, the pipeline otherwise than in accordance with 1
the recommendation of the NCC-- 2
(a) the pipeline is classified in accordance with the NCC's 3
recommendation; and 4
(b) if the pipeline is classified as a distribution pipeline and is, or is to 5
be, situated in the jurisdictional areas of 2 or more scheme 6
participants, the scheme participant with which the pipeline is 7
most closely connected is the scheme participant determined by 8
the NCC. 9
Registrar to record classification etc. 10
Code
12. The Code Registrar-- 11
(a) must record the classification of the pipeline in accordance with 12
the decision or recommendation, as the case requires, under 13
section 11; and 14
(b) if the pipeline is classified as a distribution pipeline and is a cross- 15
boundary pipeline, must record the scheme participant with which 16
the pipeline is most closely connected in accordance with the 17
decision or recommendation, as the case requires, under 18
section 11; and 19
(c) must notify the NCC accordingly. 20
or hindering access 21
Preventing
13.(1) A service provider or a person who is a party to an agreement 22
with a service provider relating to a service provided by means of a Code 23
pipeline or, as the result of an arbitration, is entitled to such a service or an 24
associate of a service provider or such a person must not engage in conduct 25
for the purpose of preventing or hindering the access of another person to a 26
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service provided by means of the Code pipeline.13 1
(2) For the purposes of subsection (1), a person is deemed to engage in 2
conduct for a particular purpose if-- 3
(a) the conduct is or was engaged in for that purpose or for a purpose 4
that includes, or included, that purpose; and 5
(b) that purpose is or was a substantial purpose. 6
(3) A person may be taken to have engaged in conduct for the purpose 7
referred to in subsection (1) even though, after all the evidence has been 8
considered, the existence of that purpose is ascertainable only by inference 9
from the conduct of the person or of any other person or from other 10
relevant circumstances. 11
(4) Subsection (3) does not limit the manner in which the purpose of a 12
person may be established for the purpose of subsection (1). 13
(5) In this section-- 14
(a) a reference to engaging in conduct is a reference to doing or 15
refusing to do any act, including refusing to supply a service or, 16
without reasonable grounds, limiting or disrupting a service, or 17
making, or giving effect to, a provision of, a contract or 18
arrangement, arriving at, or giving effect to, a provision of, an 19
understanding or requiring the giving of, or giving, a covenant; 20
(b) a reference to refusing to do an act includes a reference to-- 21
(i) refraining (otherwise than inadvertently) from doing that act; 22
or 23
(ii) making it known that that act will not be done. 24
(6) Subsection (1) does not apply to conduct engaged in in accordance 25
13 Examples of conduct which may be prohibited if the requisite purpose is
established include--
(a) refusing to supply, or limiting or disrupting the supply of, a service to a
user or prospective user for technical or safety reasons without reasonable
grounds;
(b) refusing to sell a marketable parcel (within the meaning of the Code) on
reasonable terms and conditions.
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with an agreement, if the agreement was in force on 30 March 1995. 1
(7) In this section-- 2
"associate", in relation to a person, has the meaning it would have under 3
Division 2 of Part 1.2 of the Corporations Law if sections 13, 14, 4
16(2) and 17 of that Law were repealed. 5
ART 4--ARBITRATION OF ACCESS DISPUTES 6
P
7
Definitions
14. In this Part-- 8
"access dispute" means a dispute between a service provider and another 9
person that, in accordance with the Code, may be referred to arbitration 10
under this Part. 11
"arbitrator" means the relevant Regulator or a person appointed by the 12
relevant Regulator to conduct an arbitration relating to an access 13
dispute. 14
"party" means a service provider or other person involved in an access 15
dispute. 16
of part 17
Application
15.(1) This Part applies if-- 18
(a) in accordance with the Code, a service provider or another person 19
notifies the relevant Regulator that an access dispute exists; and 20
(b) notification of the dispute is not withdrawn in accordance with the 21
Code. 22
(2) Subject to this Part, the provisions of the Code applying to an 23
arbitration of an access dispute apply to an arbitration under this Part. 24
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to conduct arbitration 1
Person
16.(1) The relevant Regulator must conduct the arbitration or appoint a 2
person to do so. 3
(2) The relevant Regulator may terminate the appointment of a person to 4
conduct the arbitration if-- 5
(a) the person is convicted of an indictable offence or an offence that, 6
if committed in the jurisdiction of this scheme participant, would 7
be an indictable offence; or 8
(b) the person is an insolvent under administration within the 9
meaning of the Corporations Law; or 10
(c) the relevant Regulator is satisfied that the person is mentally or 11
physically incapable of carrying out the duties of arbitrator, 12
and may appoint another person to conduct the arbitration. 13
ACCC conducts arbitration 14
Where
17.(1) For the purposes of a particular arbitration where it is the relevant 15
Regulator, the ACCC is to be constituted by 2 or more members of the 16
ACCC nominated in writing by the Chairperson of the ACCC. 17
(2) Subject to subsection (3), the Chairperson is to preside at an 18
arbitration. 19
(3) If the Chairperson is not a member of the ACCC as constituted under 20
subsection (1) in relation to a particular arbitration, the Chairperson must 21
nominate a member of the ACCC to preside at the arbitration. 22
(4) If a member of the ACCC who is one of the members who constitute 23
the ACCC for the purposes of a particular arbitration-- 24
(a) stops being a member of the ACCC; or 25
(b) for any reason, is not available for the purpose of the arbitration, 26
the Chairperson must either-- 27
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(c) direct that the ACCC is to be constituted for the purposes of 1
finishing the arbitration by the remaining member or members; 2
or 3
(d) direct that the ACCC is to be constituted for that purpose by the 4
remaining member or members together with one or more other 5
members of the ACCC. 6
(5) If a direction under subsection (4) is given, the ACCC as constituted 7
in accordance with the direction must continue and finish the arbitration and 8
may, for that purpose, have regard to any record of the proceedings of the 9
arbitration made by the ACCC as previously constituted. 10
(6) If the ACCC is constituted for an arbitration by 2 or more members 11
of the ACCC, any question before the ACCC is to be decided-- 12
(a) unless paragraph (b) applies, according to the opinion of the 13
majority of those members; or 14
(b) if the members are evenly divided on a question, according to the 15
opinion of the member who is presiding. 16
to be in private 17
Hearing
18.(1) Subject to subsection (2), an arbitration hearing is to be in private. 18
(2) If the parties agree, an arbitration hearing or part of an arbitration 19
hearing may be conducted in public. 20
(3) The arbitrator may give written directions as to the persons who may 21
be present at an arbitration hearing that is conducted in private. 22
(4) In giving directions under subsection (3), the arbitrator must have 23
regard to the wishes of the parties and the need for commercial 24
confidentiality. 25
to representation 26
Right
19. In an arbitration hearing under this Part, a party may appear in person 27
or be represented by someone else. 28
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1
Procedure
20.(1) In an arbitration hearing under this Part, the arbitrator-- 2
(a) is not bound by technicalities, legal forms or rules of evidence; 3
and 4
(b) must act as speedily as a proper consideration of the dispute 5
allows, having regard to the need carefully and quickly to inquire 6
into and investigate the dispute and all matters affecting the 7
merits, and fair settlement, of the dispute; and 8
(c) may gather information about any matter relevant to the access 9
dispute in any way the arbitrator thinks appropriate. 10
(2) Subject to the Code, the arbitrator may determine the periods that are 11
reasonably necessary for the fair and adequate presentation of the respective 12
cases of the parties in the arbitration hearing, and may require that the cases 13
be presented within those periods. 14
(3) The arbitrator may require evidence or argument to be presented in 15
writing, and may decide the matters on which the arbitrator will hear oral 16
evidence or argument. 17
(4) The arbitrator may determine that an arbitration hearing is to be 18
conducted by-- 19
(a) telephone; or 20
(b) closed circuit television; or 21
(c) any other means of communication. 22
powers of arbitrator 23
Particular
21.(1) The arbitrator may do any of the following things for the purpose 24
of arbitrating an access dispute-- 25
(a) give a direction in the course of, or for the purpose of, an 26
arbitration hearing; 27
(b) hear and determine the arbitration in the absence of a party who 28
has been given notice of the hearing; 29
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(c) sit at any place; 1
(d) adjourn to any time and place; 2
(e) refer any matter to an independent expert and accept the expert's 3
report as evidence. 4
(2) The arbitrator may make an interim determination. 5
6
Determination
22.(1) The arbitrator must make a determination in writing, signed by the 7
arbitrator, and must include in the determination a statement of reasons for 8
making the determination. 9
(2) If a determination of an arbitrator under this Part contains-- 10
(a) a clerical mistake; or 11
(b) an error arising from an accidental slip or omission; or 12
(c) a material miscalculation of figures or a material mistake in the 13
description of any person, thing or matter referred to in the 14
determination; or 15
(d) a defect in form, 16
the arbitrator may correct the determination or the Court, on the 17
application of a party, may make an order correcting the determination. 18
19
Contempt
23. A person must not do any act or thing in relation to the arbitration of 20
an access dispute that would be a contempt of court if the arbitrator were a 21
court of record. 22
Maximum penalty--imprisonment for 6 months. 23
of information 24
Disclosure
24.(1) An arbitrator may give an oral or written order to a person not to 25
divulge or communicate to anyone else specified information that was given 26
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to the person in the course of an arbitration unless the person has the 1
arbitrator's permission. 2
(2) A person must not contravene an order under subsection (1). 3
Maximum penalty--imprisonment for 6 months. 4
to take evidence on oath or affirmation 5
Power
25.(1) The arbitrator may take evidence on oath or affirmation and for 6
that purpose the arbitrator may administer an oath or affirmation. 7
(2) The arbitrator may summon a person to appear before the arbitrator 8
to give evidence and to produce such documents (if any) as are referred to 9
in the summons. 10
(3) The powers in this section may be exercised only for the purposes of 11
arbitrating an access dispute under this Part. 12
to attend as a witness 13
Failing
26. A person who is served, as prescribed by the regulations, with a 14
summons to appear as a witness before the arbitrator must not, without 15
reasonable excuse-- 16
(a) fail to attend as required by the summons; or 17
(b) fail to appear and report himself or herself from day to day unless 18
excused, or released from further attendance, by the arbitrator. 19
Maximum penalty--imprisonment for 6 months. 20
to answer questions etc. 21
Failing
27.(1) A person appearing as a witness before the arbitrator must not, 22
without reasonable excuse-- 23
(a) refuse or fail to be sworn or to make an affirmation; or 24
(b) refuse or fail to answer a question that the person is required to 25
answer by the arbitrator; or 26
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(c) refuse or fail to produce a document that he or she is required to 1
produce by a summons under this Part served on him or her as 2
prescribed. 3
Maximum penalty--imprisonment for 6 months. 4
(2) It is a reasonable excuse for the purposes of subsection (1) for an 5
individual to refuse or fail to answer a question or produce a document on 6
the ground that the answer or the production of the document might tend to 7
incriminate the individual or to expose the individual to a penalty. 8
(3) Subsection (2) does not limit what is a reasonable excuse for the 9
purposes of subsection (1). 10
etc. 11
Intimidation
28. A person must not-- 12
(a) threaten, intimidate or coerce another person; or 13
(b) cause or procure damage, loss or disadvantage to another person, 14
because that other person-- 15
(c) proposes to produce, or has produced, documents to the 16
arbitrator; or 17
(d) proposes to appear, or has appeared, as a witness before the 18
arbitrator. 19
Maximum penalty--imprisonment for 12 months. 20
may request arbitrator to treat material as confidential 21
Party
29.(1) A party to an arbitration hearing may-- 22
(a) inform the arbitrator that, in the party's opinion, a specified part of 23
a document contains confidential information; and 24
(b) request the arbitrator not to give a copy of that part to another 25
party. 26
(2) On receiving a request, the arbitrator must-- 27
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(a) inform the other party or parties that the request has been made 1
and of the general nature of the matters to which the relevant part 2
of the document relates; and 3
(b) ask the other party or parties whether there is any objection to the 4
arbitrator complying with the request. 5
(3) If there is an objection to the arbitrator complying with the request, 6
the party objecting may inform the arbitrator of the objection and of the 7
reasons for it. 8
(4) After considering-- 9
(a) a request; and 10
(b) any objection; and 11
(c) any further submissions that any party has made in relation to the 12
request, 13
the arbitrator may decide-- 14
(d) not to give the other party or parties a copy of so much of the 15
document as contains confidential information that the arbitrator 16
thinks should not be given; or 17
(e) to give the other party or another specified party a copy of the 18
whole, or part, of the part of the document that contains 19
confidential information subject to a condition that the party give 20
an undertaking not to disclose the information to another person 21
except to the extent specified by the arbitrator and subject to such 22
other conditions as the arbitrator determines. 23
osts 24
C
30. The costs of an arbitration, including the fees and costs of the 25
arbitrator, are in the discretion of the arbitrator who may-- 26
(a) direct to and by whom and in what manner the whole or any part 27
of those costs is to be paid; 28
(b) tax or settle the amount of costs to be so paid or any part of those 29
costs; 30
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(c) award costs to be taxed or settled as between party and party or as 1
between solicitor and client. 2
to Court 3
Appeal
31.(1) A party may appeal to the Court, on a question of law, from a 4
determination of an arbitrator under this Part. 5
(2) An appeal must be instituted-- 6
(a) not later than the 28th day after the day on which the decision is 7
made or within such further period as the Court (whether before 8
or after the end of that day) allows; and 9
(b) in accordance with the relevant Rules of Court. 10
(3) The Court may make an order staying or otherwise affecting the 11
operation or implementation of the determination of the arbitrator that the 12
Court thinks appropriate to secure the effectiveness of the hearing and 13
determination of the appeal. 14
ART 5--PROCEEDINGS FOR BREACH OF LAW 15
P
16
Proceedings
32.(1) A person may not bring civil proceedings in respect of a matter 17
arising under this Law except in accordance with this Part or Part 6. 18
(2) The relevant Regulator may, in accordance with this Part, bring civil 19
proceedings in respect of a civil penalty provision or a regulatory provision. 20
(3) The relevant Regulator or any other person may, in accordance with 21
this Part, bring civil proceedings in respect of a conduct provision. 22
(4) Nothing in subsection (1) or (2) affects the right of a person-- 23
(a) to bring civil proceedings in respect of any matter or thing, or 24
seek any relief or remedy, if the cause of action arises, or the 25
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relief or remedy is sought, on grounds that do not rely on this 1
Law; or 2
(b) to apply for an order for review under the Administrative 3
Decisions (Judicial Review) Act 1977 as applying as a law of this 4
scheme participant. 5
proceedings do not lie 6
Criminal
33.(1) Criminal proceedings do not lie against a person by reason only 7
that the person-- 8
(a) has contravened a provision of this Law; or 9
(b) has attempted to contravene such a provision; or 10
(c) has aided, abetted, counselled or procured a person to contravene 11
such a provision; or 12
(d) has induced, or attempted to induce, a person, whether by threats 13
or promises or otherwise, to contravene such a provision; or 14
(e) has been in any way, directly or indirectly, knowingly concerned 15
in, or party to, the contravention by a person of such a provision; 16
or 17
(f) has conspired with others to contravene such a provision. 18
(2) Subsection (1) does not apply in respect of a provision of this Law 19
for an offence against which a penalty is prescribed by this Law. 20
penalty 21
Civil
34.(1) The relevant Regulator may apply to the Court for an order under 22
this Part in respect of a contravention by a person of a civil penalty 23
provision or the doing by a person of any other thing mentioned in 24
subsection (3). 25
(2) An application under subsection (1) may not be made in respect of a 26
breach of a civil penalty provision if the breach is or has been the subject of 27
an application for an order under the gas pipelines access legislation of 28
another scheme participant. 29
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(3) If the Court is satisfied that a person-- 1
(a) has contravened a civil penalty provision; or 2
(b) has attempted to contravene such provision; or 3
(c) has aided, abetted, counselled or procured a person to contravene 4
such a provision; or 5
(d) has induced, or attempted to induce, a person whether by threats 6
or promises or otherwise, to contravene such a provision; or 7
(e) has been in any way, directly or indirectly, knowingly concerned 8
in, or party to, the contravention by a person of such a provision; 9
or 10
(f) has conspired with others to contravene such a provision, 11
the Court may order the person to pay to the appropriate Minister such 12
pecuniary penalty, in respect of each act or omission by the person to 13
which this section applies, as the Court determines to be appropriate 14
having regard to all relevant matters including-- 15
(g) the nature and extent of the act or omission and of any loss or 16
damage suffered as a result of the act or omission; and 17
(h) the circumstances in which the act or omission took place; and 18
(i) whether the person has previously been found by the Court in 19
proceedings under this Part to have contravened a civil penalty 20
provision. 21
(4) The pecuniary penalty payable under subsection (3) must not exceed 22
the penalty prescribed by the regulations for the act or omission to which 23
this section applies. 24
(5) In this section-- 25
"appropriate Minister" means-- 26
(a) in relation to a contravention of a civil penalty provision relating 27
to a transmission pipeline, or the service provider of a 28
transmission pipeline, the Commonwealth Minister; 29
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(b) in relation to a contravention of a civil penalty provision relating 1
to a distribution pipeline, or the service provider of a distribution 2
pipeline, situated in the jurisdictional area of 2 or more scheme 3
participants, the local Minister within the meaning of the gas 4
pipelines access legislation of the scheme participant with which 5
the pipeline is most closely connected; 6
(c) in any other case, the local Minister. 7
njunctions 8
I
35.(1) If, on an application in accordance with subsection (2), the Court 9
is satisfied that a person has engaged, or is proposing to engage, in conduct 10
that constitutes or would constitute-- 11
(a) a contravention of a regulatory provision or a conduct provision; 12
or 13
(b) attempting to contravene a regulatory provision or a conduct 14
provision, 15
the Court may grant an injunction in such terms as the Court 16
determines to be appropriate. 17
(2) An application under subsection (1) may be made-- 18
(a) in the case of a regulatory provision, or a conduct provision, 19
relating to a transmission pipeline or a service provider of a 20
transmission pipeline, by the ACCC; 21
(b) in the case of a regulatory provision, or a conduct provision, 22
relating to a distribution pipeline or the service provider of a 23
distribution pipeline, by the local Regulator; 24
(c) in the case of any conduct provision, by any person other than the 25
ACCC or the local Regulator (except as provided in 26
paragraphs (a) and (b)). 27
(3) If an application for an injunction under subsection (1) has been 28
made, the Court may, if the Court determines it to be appropriate, grant an 29
injunction by consent of all the parties to the proceedings, whether or not the 30
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Court is satisfied that a person has engaged, or is proposing to engage, in 1
conduct of a kind mentioned in subsection (1). 2
(4) If, in the opinion of the Court, it is desirable to do so, the Court may 3
grant an interim injunction pending determination of an application under 4
subsection (1). 5
(5) The Court may rescind or vary an injunction granted under 6
subsection (1) or (3). 7
(6) The power of the Court to grant an injunction restraining a person 8
from engaging in conduct may be exercised-- 9
(a) whether or not it appears to the Court that the person intends to 10
engage again, or to continue to engage, in conduct of that kind; 11
and 12
(b) whether or not the person has previously engaged in conduct of 13
that kind; and 14
(c) whether or not there is an imminent danger of substantial damage 15
to any other person if the person engages in conduct of that kind. 16
(7) The power of the Court to grant an injunction requiring a person to do 17
an act or thing may be exercised-- 18
(a) whether or not it appears to the Court that the person intends to 19
refuse or fail again, or to continue to refuse or fail, to do that act 20
or thing; and 21
(b) whether or not the person has previously refused or failed to do 22
that act or thing; and 23
(c) whether or not there is an imminent danger of substantial damage 24
to any other person if the person refuses or fails to do that act or 25
thing. 26
(8) If an application is made to the Court by the relevant Regulator for the 27
grant of an injunction under this section, the Court will not require the 28
applicant or any other person, as a condition of granting an interim 29
injunction, to give any undertakings as to damages. 30
(9) Nothing in this section affects any other power the Court may have to 31
grant injunctive relief. 32
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for damages for contravention of conduct provision 1
Actions
36.(1) A person who suffers loss or damage by conduct of another that 2
was done in contravention of a conduct provision may recover the amount 3
of the loss or damage by action against that other person or against any 4
person involved in the contravention. 5
(2) An action under subsection (1) may be commenced at any time 6
within 3 years after the date on which the cause of action accrued and may 7
not be commenced after that period. 8
(3) A reference in subsection (1) to a person involved in a contravention 9
of a conduct provision is a reference to a person who-- 10
(a) has aided, abetted, counselled or procured the contravention; or 11
(b) has induced, whether by threats or promises or otherwise, the 12
contravention; or 13
(c) has been in any way, directly or indirectly, knowingly concerned 14
in, or party to, the contravention; or 15
(d) has conspired with others to effect the contravention. 16
relief 17
Declaratory
37.(1) The Court, on an application under subsection (2), will, by order, 18
declare whether or not the person to which the application relates has 19
contravened a regulatory provision or conduct provision. 20
(2) An application under subsection (1) may be made-- 21
(a) in the case of a regulatory provision, or a conduct provision, 22
relating to a transmission pipeline or a service provider of a 23
transmission pipeline, by the ACCC; 24
(b) in the case of a regulatory provision, or a conduct provision, 25
relating to a distribution pipeline or a service provider of a 26
distribution pipeline, by the local Regulator; 27
(c) in the case of any conduct provision, by any person other than the 28
ACCC or the local Regulator (except as provided in 29
paragraphs (a) and (b)). 30
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(3) If the order declares the person to have contravened a regulatory 1
provision or conduct provision, the order may include one or more of the 2
following-- 3
(a) a requirement that the person cease, within a specified period, the 4
act, activity or practice constituting the contravention; 5
(b) a requirement that the person take such action, or adopt such 6
practice, as the Court requires for remedying the contravention or 7
preventing a recurrence of the contravention. 8
PART 6--ADMINISTRATIVE APPEALS 9
for review 10
Application
38.(1) A person adversely affected by a decision to which this section 11
applies may apply to the relevant appeals body for a review of the decision. 12
(2) The application must be made, in accordance with this Part and any 13
applicable law governing the practice and procedure of the relevant appeals 14
body, within 14 days after the decision is made. 15
(3) The relevant appeals body must make its determination on the review 16
within 90 days after receiving the application for review. 17
(4) The relevant appeals body may extend, or further extend, the period 18
referred to in subsection (3) by a period of 30 days if it considers that the 19
matter cannot be dealt with properly without the extension either because of 20
its complexity or because of other special circumstances. 21
(5) If the relevant appeals body extends the period, it must, before the 22
end of the period, notify the applicant of the extension and the reasons for it. 23
(6) An application under this section-- 24
(a) that relates to a decision under subsection (13)(c) or section 39(1) 25
does not operate to stay the decision; 26
(b) in any other case, operates to stay the decision unless, in the case 27
of a decision under subsection (13)(b) or (d), the relevant appeals 28
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body otherwise determines. 1
(7) On the application of a party to the proceedings under this section, the 2
relevant appeals body may conduct the proceedings in the absence of the 3
public. 4
(8) The relevant appeals body may require the relevant Regulator to give 5
information and other assistance, and to make reports, as specified by the 6
appeals body. 7
(9) In proceedings under this section, the relevant appeals body may 8
make an order affirming, or setting aside or varying immediately or as from 9
a specified future date, the decision under review and, for the purposes of 10
the review, may exercise the same powers with respect to the subject matter 11
of the decision as may be exercised with respect to that subject matter by the 12
person who made the decision. 13
(10) The relevant appeals body may make such orders (if any) as to costs 14
in respect of a proceeding as it thinks fit. 15
(11) The relevant appeals body may refuse to review a decision if it 16
considers that the application for review is trivial or vexatious. 17
(12) A determination by the relevant appeals body on the review of a 18
decision has the same effect as if it were made by the person who made the 19
decision. 20
(13) This section applies to a decision-- 21
(a) that a pipeline or proposed pipeline is, or is not, or ceases to be, or 22
does not cease to be, a Code pipeline; 23
(b) to add to, or to waive, the requirement under the Code that a 24
service provider be a body corporate or statutory authority or not 25
be a producer, purchaser or seller of natural gas or relating to the 26
separation of certain activities of a service provider; 27
(c) not to approve a contract, arrangement or understanding between 28
a service provider and an associate of a service provider; 29
(d) relating to any other matter that, under the Code, is a decision to 30
which this section applies. 31
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review of access arrangements 1
Merits
39.(1) If the decision of the relevant Regulator is-- 2
(a) to draft and approve an access arrangement; or 3
(b) to draft and approve revisions of an access arrangement, 4
either in place of an access arrangement or revisions submitted for 5
approval by a service provider or because a service provider fails to 6
submit an access arrangement or revisions as required by the Code-- 7
(c) the service provider; or 8
(d) a person who made a submission to the relevant Regulator on the 9
access arrangement or revisions submitted by the service provider 10
and whose interests are adversely affected by the decision, 11
may apply to the relevant appeals body for a review of the decision. 12
(2) An application under subsection (1)-- 13
(a) may be made only on the grounds, to be established by the 14
applicant-- 15
(i) of an error in the relevant Regulator's finding of facts; or 16
(ii) that the exercise of the relevant Regulator's discretion was 17
incorrect or was unreasonable having regard to all the 18
circumstances; or 19
(iii) that the occasion for exercising the discretion did not arise; 20
and 21
(b) may not raise any matter that was not raised in submissions to the 22
relevant Regulator before the decision was made. 23
(3) An application under subsection (1) must give details of the grounds 24
for making the application. 25
(4) In a review of a decision under this section, the relevant appeals body 26
may give directions to the parties excluding from the review specified facts, 27
findings, matters or actions that the relevant appeals body considers should 28
be excluded having regard to-- 29
(a) the likelihood of the decision being varied or set aside on account 30
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of those facts, findings, matters or actions; 1
(b) the significance to the parties of those facts, findings, matters or 2
actions; 3
(c) the amount of money involved; 4
(d) any other matters that the relevant appeals body considers 5
relevant. 6
(5) The relevant appeals body, in reviewing a decision under this section 7
must not consider any matter other than-- 8
(a) the application under subsection (1) and submissions in support 9
of it (other than any matter not raised in submissions before the 10
decision was made) and any written submissions made to the 11
relevant Regulator before the decision was made; 12
(b) the access arrangement and the access arrangement information 13
prepared by the service provider in accordance with the Code; 14
(c) any reports relied on by the relevant Regulator before the decision 15
was made; 16
(d) any draft decision, and submissions on any draft decision made 17
to the relevant Regulator; 18
(e) the decision of the relevant Regulator and the written record of it 19
and any written reasons for it; 20
(f) the transcript (if any) of any hearing conducted by the relevant 21
Regulator. 22
(6) Except as otherwise provided in this section, section 38 (except 23
subsections (1) and (13)) applies to an application under this section. 24
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PART 7--GENERAL 1
and haulage of natural gas 2
Supply
40.(1) If a producer states terms and conditions (whether or not including 3
the price) ("the first terms") on which the producer offers to supply 4
natural gas through a Code pipeline that is in operation at the time of the 5
offer to a person at a place other than the exit flange of the producer's 6
processing plant, the producer must, on request by the person, state terms 7
and conditions (including the price, if the price was included in the first 8
terms) ("the second terms") on which the producer will supply natural gas 9
to the person at the exit flange. 10
(2) If there is a difference in the price stated in the first terms and the 11
second terms, the producer must include in the second terms a statement of 12
the reasons for the difference. 13
(3) If the producer offers to supply natural gas to a person at a place other 14
than the exit flange of the producer's processing plant, the producer must, 15
on request, offer to supply the gas at the exit flange on the terms and 16
conditions (including price) stated in accordance with this section. 17
(4) In this section-- 18
"producer" means a person who carries on a business of producing natural 19
gas. 20
to obtain information and documents 21
Power
41.(1) If a relevant Regulator has reason to believe that a person has 22
information or a document that may assist the Regulator in the performance 23
of any of the Regulator's prescribed duties under this Law, the Regulator 24
may require the person to give the Regulator the information or a copy of 25
the document. 26
(2) A requirement must be made in a written notice that identifies the 27
information or document and that specifies-- 28
(a) by when the requirement must be complied with; and 29
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(b) in what form the information or copy of the document is to be 1
given to the relevant Regulator. 2
(3) The notice must also state that the requirement is made under this 3
section and must include a copy of this section. 4
(4) A person must not, without lawful excuse, fail to comply with any 5
requirement made under this section in a notice given to the person. 6
Maximum penalty--$10 000 or imprisonment for 12 months. 7
(5) If the person is a natural person, it is a lawful excuse for the purpose 8
of subsection (4) that compliance may tend to incriminate the person or 9
make the person liable to a penalty for any other offence. 10
(6) A person must not, in purported compliance with a requirement 11
made under this section, knowingly give the relevant Regulator information 12
that is false or misleading. 13
Maximum penalty--$10 000 or imprisonment for 12 months. 14
(7) A person must not-- 15
(a) threaten, intimidate or coerce another person; or 16
(b) take, threaten to take, incite or be involved in any action that 17
causes another person to suffer any loss, injury or disadvantage, 18
because that other person complied, or intends to comply, with a 19
requirement made under this section. 20
Maximum penalty--$10 000 or imprisonment for 12 months. 21
(8) A person is not liable in any way for any loss, damage or injury 22
suffered by another person because of the giving in good faith of a 23
document or information to the relevant Regulator under this section. 24
(9) In this section-- 25
"prescribed duty" means-- 26
(a) deciding whether to approve an access arrangement under the 27
Code; 28
(b) deciding whether to approve changes to an access arrangement 29
under the Code; 30
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(c) deciding whether to approve a contract, arrangement or 1
understanding between a service provider and an associate of a 2
service provider; 3
(d) monitoring compliance with the Code. 4
on disclosure of confidential information 5
Restriction
42.(1) This section applies if information or a document is given to the 6
relevant Regulator under section 41 and, at the time it is given, the person 7
giving it states that it is of a confidential or commercially-sensitive nature. 8
(2) Except as otherwise provided in the Code, the relevant Regulator 9
must not disclose the information or the contents of the document to any 10
person unless-- 11
(a) the relevant Regulator is of the opinion-- 12
(i) that the disclosure of the information or document would not 13
cause detriment to the person supplying it or to the person 14
from whom that person received it; or 15
(ii) that, although the disclosure of the information or document 16
would cause detriment to such a person, the public benefit in 17
disclosing it outweighs that detriment; and 18
(b) the relevant Regulator has given the person who supplied the 19
information or document a written notice-- 20
(i) stating that the relevant Regulator wishes to disclose the 21
information or contents of the document, specifying the 22
nature of the intended disclosure and setting out detailed 23
reasons why the Regulator wishes to make the disclosure; 24
and 25
(ii) stating that the Regulator is of the opinion required by 26
paragraph (a) and setting out detailed reasons why it is of 27
that opinion; and 28
(iii) setting out a copy of this section and section 43; and 29
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(c) if the relevant Regulator is aware that the person who supplied the 1
information or document in turn received the information or 2
document from another person and is aware of that other person's 3
identity and address, the relevant Regulator has given that other 4
person a written notice-- 5
(i) containing the details required by paragraph (b); and 6
(ii) stating that the relevant Regulator is of the opinion required 7
by paragraph (a) in relation to that other person and setting 8
out detailed reasons why it is of that opinion; and 9
(d) if the relevant Regulator is the ACCC and the information or 10
document is or includes personal information within the meaning 11
of the Privacy Act 1988 of the Commonwealth, the person to 12
whom it is disclosed undertakes to comply with the Information 13
Privacy Principles set out in section 14 of that Act in respect of 14
the information or document; and 15
(e) an application for review is not lodged in respect of any notice 16
given under paragraph (b) or (c) within the time permitted by 17
section 43(3). 18
(3) Subsection (2) does not prevent the relevant Regulator-- 19
(a) from disclosing information or the contents of a document to a 20
member of the staff of the relevant Regulator employed or 21
engaged for the purposes of this Law or to another relevant 22
Regulator; or 23
(b) from using information or a document for the purposes of civil or 24
criminal proceedings; or 25
(c) from supplying the information or document to the member of a 26
relevant appeals body for the purpose of proceedings in relation to 27
the information or document. 28
(4) If an application for review of a decision of the relevant Regulator is 29
lodged under section 43 with a relevant appeals body and-- 30
(a) the application is withdrawn or dismissed or the decision is 31
affirmed, the relevant Regulator may disclose any information, or 32
the contents of any document, that was the subject of the review 33
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in the manner set out in the notice given under subsection (2)(b) 1
or (c); or 2
(b) the decision is varied or set aside, the relevant Regulator may 3
disclose anything that the relevant appeals body permits the 4
relevant Regulator to disclose under section 43(4)(b) in the 5
manner specified by the relevant appeals body. 6
(5) For the purposes of this section, the disclosure of anything that is 7
already in the public domain at the time the relevant Regulator wishes to 8
disclose it cannot cause detriment to any person referred to in 9
subsection (2)(b) or (c). 10
for review of disclosure notice 11
Application
43.(1) A person who is given a notice under section 42(2)(b) or (c) and 12
who is aggrieved by a decision of the relevant Regulator to disclose 13
information or the contents of a document may apply to the relevant appeals 14
body for a review of the decision. 15
(2) An application may only be made on the ground that-- 16
(a) the decision was not made in accordance with law; or 17
(b) the decision is unreasonable having regard to all relevant 18
circumstances. 19
(3) The person must lodge the application with the relevant appeals body 20
within 7 working days after the person is given the notice. 21
(4) In granting an appeal under this section the relevant appeals body 22
may-- 23
(a) forbid disclosure by the relevant Regulator of the information or 24
document that is the subject of the review; or 25
(b) restrict the intended disclosure by the relevant Regulator of the 26
information or document within limits specified by the relevant 27
appeals body. 28
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(5) Except as otherwise provided in this section, section 38 (except 1
subsections (1), (2), (6) and (13)) applies to a review under this section. 2
3
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PPENDIX TO SCHEDULE 1 1
¡A
ISCELLANEOUS PROVISIONS RELATING TO 2
M
INTERPRETATION 3
PART 1--PRELIMINARY 4
of Appendix by contrary intention 5
Displacement
1. The application of this Appendix may be displaced, wholly or partly, 6
by a contrary intention appearing in this Law. 7
PART 2--GENERAL 8
to be construed not to exceed legislative power of Legislature 9
Law
2.(1) This Law is to be construed as operating to the full extent of, but so 10
as not to exceed, the legislative power of the Legislature of this scheme 11
participant. 12
(2) If a provision of this Law, or the application of a provision of this 13
Law to a person, subject matter or circumstance, would, but for this clause, 14
be construed as being in excess of the legislative power of the Legislature-- 15
(a) it is a valid provision to the extent to which it is not in excess of 16
the power; and 17
(b) the remainder of this Law, and the application of the provision to 18
other persons, subject matters or circumstances, is not affected. 19
(3) This clause applies to this Law in addition to, and without limiting the 20
effect of, any provision of this Law. 21
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section to be a substantive enactment 1
Every
3. Every section of this Law has effect as a substantive enactment 2
without introductory words. 3
that is, and is not, part of this Law 4
Material
4.(1) The heading to a Part, Division or Subdivision into which this Law 5
is divided is part of this Law. 6
(2) A Schedule, or Appendix to a Schedule, to this Law is part of this 7
Law. 8
(3) A heading to a section or subsection of this Law does not form part 9
of this Law. 10
to particular Acts and to enactments 11
References
5. In this Law-- 12
(a) an Act of this scheme participant may be cited-- 13
(i) by its short title; or 14
(ii) in another way sufficient in an Act of this scheme participant 15
for the citation of such an Act; and 16
(b) a Commonwealth Act may be cited-- 17
(i) by its short title; or 18
(ii) in another way sufficient in a Commonwealth Act for the 19
citation of such an Act, 20
together with a reference to the Commonwealth; and 21
(c) an Act of another scheme participant may be cited-- 22
(i) by its short title; or 23
(ii) in another way sufficient in an Act of the scheme participant 24
for the citation of such an Act, 25
together with a reference to the scheme participant. 26
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taken to be included in Act or Law citation etc. 1
References
6.(1) A reference in this Law to an Act includes a reference to-- 2
(a) the Act as originally enacted, and as amended from time to time 3
since its original enactment; and 4
(b) if the Act has been repealed and re-enacted (with or without 5
modification) since the enactment of the reference, the Act as re- 6
enacted, and as amended from time to time since its re-enactment. 7
(2) A reference in this Law to a provision of this Law or of an Act 8
includes a reference to-- 9
(a) the provision as originally enacted, and as amended from time to 10
time since its original enactment; and 11
(b) if the provision has been omitted and re-enacted (with or without 12
modification) since the enactment of the reference, the provision 13
as re-enacted, and as amended from time to time since its re- 14
enactment. 15
(3) Subclauses (1) and (2) apply to a reference in this Law to a law of 16
another scheme participant as they apply to a reference in this Law to an Act 17
and to a provision of an Act. 18
best achieving Law's purpose 19
Interpretation
7.(1) In the interpretation of a provision of this Law, the interpretation 20
that will best achieve the purpose or object of this Law is to be preferred to 21
any other interpretation. 22
(2) Subclause (1) applies whether or not the purpose is expressly stated 23
in this Law. 24
of extrinsic material in interpretation 25
Use
8.(1) In this clause-- 26
"extrinsic material" means relevant material not forming part of this Law, 27
including, for example-- 28
(a) material that is set out in the document containing the text of this 29
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Law as printed by authority of the Government Printer of South 1
Australia; and 2
(b) a relevant report of a Royal Commission, Law Reform 3
Commission, commission or committee of inquiry, or a similar 4
body, that was laid before the Legislative Council or House of 5
Assembly of South Australia before the provision concerned was 6
enacted; and 7
(c) a relevant report of a committee of the Legislative Council or 8
House of Assembly of South Australia that was made to the 9
Legislative Council or House of Assembly of South Australia 10
before the provision was enacted; and 11
(d) a treaty or other international agreement that is mentioned in this 12
Law; and 13
(e) an explanatory note or memorandum relating to the Bill that 14
contained the provision, or any relevant document, that was laid 15
before, or given to the members of, the Legislative Council or 16
House of Assembly of South Australia by the member bringing 17
in the Bill before the provision was enacted; and 18
(f) the speech made to the Legislative Council or House of 19
Assembly of South Australia by the member in moving a motion 20
that the Bill be read a second time; and 21
(g) material in the Votes and Proceedings of the Legislative Council 22
or House of Assembly of South Australia or in any official 23
record of debates in the Legislative Council or House of 24
Assembly of South Australia; and 25
(h) a document that is declared by this Law to be a relevant document 26
for the purposes of this clause; 27
"ordinary meaning" means the ordinary meaning conveyed by a 28
provision having regard to its context in this Law and to the purpose of 29
this Law. 30
(2) Subject to subclause (3), in the interpretation of a provision of this 31
Law, consideration may be given to extrinsic material capable of assisting in 32
the interpretation-- 33
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(a) if the provision is ambiguous or obscure, to provide an 1
interpretation of it; or 2
(b) if the ordinary meaning of the provision leads to a result that is 3
manifestly absurd or is unreasonable, to provide an interpretation 4
that avoids such a result; or 5
(c) in any other case, to confirm the interpretation conveyed by the 6
ordinary meaning of the provision. 7
(3) In determining whether consideration should be given to extrinsic 8
material, and in determining the weight to be given to extrinsic material, 9
regard is to be had to-- 10
(a) the desirability of a provision being interpreted as having its 11
ordinary meaning; and 12
(b) the undesirability of prolonging proceedings without 13
compensating advantage; and 14
(c) other relevant matters. 15
with forms 16
Compliance
9.(1) If a form is prescribed or approved by or for the purpose of this 17
Law, strict compliance with the form is not necessary and substantial 18
compliance is sufficient. 19
(2) If a form prescribed or approved by or for the purpose of this Law 20
requires-- 21
(a) the form to be completed in a specified way; or 22
(b) specified information or documents to be included in, attached to 23
or given with the form; or 24
(c) the form, or information or documents included in, attached to or 25
given with the form, to be verified in a specified way, 26
the form is not properly completed unless the requirement is complied 27
with. 28
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PART 3--TERMS AND REFERENCES 1
2
Definitions
10. In this Law-- 3
"Act" means an Act of the Legislature. 4
"affidavit", in relation to a person allowed by law to affirm, declare or 5
promise, includes affirmation, declaration and promise. 6
"amend" includes-- 7
(a) omit or omit and substitute; or 8
(b) alter or vary; or 9
(c) amend by implication. 10
"appoint" includes re-appoint. 11
"Australia" means the Commonwealth of Australia but, when used in a 12
geographical sense, does not include an external Territory. 13
"breach" includes fail to comply with. 14
"business day" means a day that is not-- 15
(a) a Saturday or Sunday; or 16
(b) a public holiday, special holiday or bank holiday in the place in 17
which any relevant act is to be or may be done. 18
"calendar month" means a period starting at the beginning of any day of 19
one of the 12 named months and ending-- 20
(a) immediately before the beginning of the corresponding day of the 21
next named month; or 22
(b) if there is no such corresponding day, at the end of the next 23
named month. 24
"calendar year" means a period of 12 months beginning on 1 January. 25
"commencement", in relation to this Law or an Act or a provision of this 26
Law or an Act, means the time at which this Law, the Act or provision 27
comes into operation. 28
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"Commonwealth" means the Commonwealth of Australia but, when used 1
in a geographical sense, does not include an external territory; 2
"confer", in relation to a function, includes impose. 3
"contravene" includes fail to comply with. 4
"definition" means a provision of this Law (however expressed) that-- 5
(a) gives a meaning to a word or expression; or 6
(b) limits or extends the meaning of a word or expression. 7
"document" includes-- 8
(a) any paper or other material on which there is writing; or 9
(b) any paper or other material on which there are marks, figures, 10
symbols or perforations having a meaning for a person qualified 11
to interpret them; or 12
(c) any disc, tape or other article or any material from which sounds, 13
images, writings or messages are capable of being reproduced 14
(with or without the aid of another article or device). 15
"estate" includes easement, charge, right, title, claim, demand, lien or 16
encumbrance, whether at law or in equity. 17
"expire" includes lapse or otherwise cease to have effect. 18
"fail" includes refuse. 19
"financial year" means a period of 12 months beginning on 1 July; 20
"function" includes duty. 21
"Gazette" means the Government Gazette of this scheme participant. 22
"Governor" means the Governor acting with the advice and consent of the 23
Executive Council. 24
"instrument" includes a statutory instrument. 25
"interest", in relation to land or other property, means-- 26
(a) a legal or equitable estate in the land or other property; or 27
(b) a right, power or privilege over, or in relation to, the land or other 28
property. 29
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"internal Territory" means the Australian Capital Territory, the Jervis Bay 1
Territory or the Northern Territory. 2
"Jervis Bay Territory" means the Territory mentioned in the Jervis Bay 3
Territory Acceptance Act 1915 of the Commonwealth. 4
"make" includes issue or grant. 5
"minor" means an individual who is under 18. 6
"modification" includes addition, omission or substitution. 7
"month" means a calendar month. 8
"named month" means one of the 12 months of the year. 9
"Northern Territory" means the Northern Territory of Australia. 10
"number" means-- 11
(a) a number expressed in figures or words; or 12
(b) a letter; or 13
(c) a combination of a number so expressed and a letter. 14
"oath", in relation to a person allowed by law to affirm, declare or promise, 15
includes affirmation, declaration or promise. 16
"office" includes position. 17
"omit", in relation to a provision of this Law or an Act, includes repeal. 18
"party" includes an individual or a body politic or corporate. 19
"penalty" includes forfeiture or punishment. 20
"person" includes an individual or a body politic or corporate. 21
"power" includes authority. 22
"prescribed" means prescribed by, or by regulations made or in force for 23
the purposes of or under, this Law. 24
"printed" includes typewritten, lithographed or reproduced by any 25
mechanical means. 26
"proceeding" means a legal or other action or proceeding. 27
"property" means any legal or equitable estate or interest (whether present 28
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or future, vested or contingent, or tangible or intangible) in real or 1
personal property of any description (including money), and includes 2
things in action. 3
"provision", in relation to this Law or an Act, means words or other matter 4
that form or forms part of this Law or the Act, and includes-- 5
(a) a Part, Division, Subdivision, section, subsection, paragraph, 6
subparagraph, subsubparagraph or Schedule of or to this Law or 7
the Act; or 8
(b) a section, clause, subclause, item, column, table or form of or in a 9
Schedule to this Law or the Act; or 10
(c) the long title and any preamble to the Act. 11
"record" includes information stored or recorded by means of a computer. 12
"repeal" includes-- 13
(a) revoke or rescind; or 14
(b) repeal by implication; or 15
(c) abrogate or limit the effect of this Law or instrument concerned; 16
or 17
(d) exclude from, or include in, the application of this Law or 18
instrument concerned any person, subject matter or circumstance. 19
"sign" includes the affixing of a seal or the making of a mark. 20
"statutory declaration" means a declaration made under an Act, or under 21
a Commonwealth Act or an Act of another jurisdiction, that authorises 22
a declaration to be made otherwise than in the course of a judicial 23
proceeding. 24
"statutory instrument" means an instrument (including a regulation) 25
made or in force under or for the purposes of this Law, and includes 26
an instrument made or in force under any such instrument. 27
"swear", in relation to a person allowed by law to affirm, declare or 28
promise, includes affirm, declare or promise. 29
"word" includes any symbol, figure or drawing. 30
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"writing" includes any mode of representing or reproducing words in a 1
visible form. 2
relating to defined terms and gender and number 3
Provisions
11.(1) If this Law defines a word or expression, other parts of speech 4
and grammatical forms of the word or expression have corresponding 5
meanings. 6
(2) Definitions in or applicable to this Law apply except so far as the 7
context or subject matter otherwise indicates or requires. 8
(3) In this Law, words indicating a gender include each other gender. 9
(4) In this Law-- 10
(a) words in the singular include the plural; and 11
(b) words in the plural include the singular. 12
of may and must etc. 13
Meaning
12.(1) In this Law, the word "may", or a similar word or expression, 14
used in relation to a power indicates that the power may be exercised or not 15
exercised, at discretion. 16
(2) In this Law, the word "must", or a similar word or expression, used 17
in relation to a power indicates that the power is required to be exercised. 18
(3) This clause has effect despite any rule of construction to the contrary. 19
and expressions used in statutory instruments 20
Words
13.(1) Words and expressions used in a statutory instrument have the 21
same meanings as they have, from time to time, in this Law, or relevant 22
provisions of this Law, under or for the purposes of which the instrument is 23
made or in force. 24
(2) This clause has effect in relation to an instrument except so far as the 25
contrary intention appears in the instrument. 26
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of express references to bodies corporate and individuals 1
Effect
14. In this Law, a reference to a person generally (whether the expression 2
"person", "another" or "whoever" or another expression is used)-- 3
(a) does not exclude a reference to a body corporate or an individual 4
merely because elsewhere in this Law there is particular reference 5
to a body corporate (however expressed); and 6
(b) does not exclude a reference to an individual or a body corporate 7
merely because elsewhere in this Law there is particular reference 8
to an individual (however expressed). 9
to Minister 10
References
15.(1) In this Law-- 11
(a) a reference to a Minister is a reference to a Minister of the Crown 12
of this scheme participant; and 13
(b) a reference to a particular Minister by title, or to "the Minister" 14
without specifying a particular Minister by title, includes a 15
reference to another Minister, or a member of the Executive 16
Council of this scheme participant, who is acting for and on 17
behalf of the Minister. 18
(2) In a provision of this Law, a reference to "the Minister", without 19
specifying a particular Minister by title is a reference to-- 20
(a) the Minister of this scheme participant administering the 21
provision; or 22
(b) if, for the time being, different Ministers of this scheme 23
participant administer the provision in relation to different 24
matters-- 25
(i) if only one Minister of this scheme participant administers 26
the provision in relation to the relevant matter, the Minister; 27
or 28
(ii) if 2 or more Ministers of this scheme participant administer 29
the provision in relation to the relevant matter, any one of 30
those Minister; or 31
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(c) if paragraph (b) does not apply and, for the time being, 2 or more 1
Ministers administer the provision, any one of the Ministers. 2
(3) For the removal of doubt, it is declared that if-- 3
(a) a provision of this Law is administered by 2 or more Ministers of 4
this scheme participant; and 5
(b) the provision requires or permits anything to be done in relation 6
to any of the Ministers, 7
the provision does not require or permit it to be done in a particular 8
case by or in relation to more than one of the Ministers. 9
of records kept in computers etc. 10
Production
16. If a person who keeps a record of information by means of a 11
mechanical, electronic or other device is required by or under this Law-- 12
(a) to produce the information or a document containing the 13
information to a court, tribunal or person; or 14
(b) to make a document containing the information available for 15
inspection by a court, tribunal or person, 16
then, unless the court, tribunal or person otherwise directs-- 17
(c) the requirement obliges the person to produce or make available 18
for inspection, as the case may be, a document that reproduces the 19
information in a form capable of being understood by the court, 20
tribunal or person; and 21
(d) the production to the court, tribunal or person of the document in 22
that form complies with the requirement. 23
scheme participant 24
This
17. In this Law-- 25
(a) a reference to an officer, office or statutory body is a reference to 26
such an officer, office or statutory body in and for this scheme 27
participant; and 28
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(b) a reference to a locality or other matter or thing is a reference to 1
such a locality or other matter or thing in and of this scheme 2
participant. 3
to officers and holders of offices 4
References
18. In this Law, a reference to a particular officer, or to the holder of a 5
particular office, includes a reference to the person for the time being 6
occupying or acting in the office concerned. 7
to certain provisions of Law 8
Reference
19. If a provision of this Law refers-- 9
(a) to a Part, section or Schedule by a number and without reference 10
to this Law, the reference is a reference to the Part, section or 11
Schedule, designated by the number, of or to this Law; or 12
(b) to a Schedule without reference to it by a number and without 13
reference to this Law, the reference, if there is only one Schedule 14
to this Law, is a reference to the Schedule; or 15
(c) to a Division, Subdivision, subsection, paragraph, subparagraph, 16
subsubparagraph, clause, subclause, item, column, table or form 17
by a number and without reference to this Law, the reference is a 18
reference to-- 19
(i) the Division, designated by the number, of the Part in which 20
the reference occurs; and 21
(ii) the Subdivision, designated by the number, of the Division 22
in which the reference occurs; and 23
(iii) the subsection, designated by the number, of the section in 24
which the reference occurs; and 25
(iv) the paragraph, designated by the number, of the section, 26
subsection, Schedule or other provision in which the 27
reference occurs; and 28
(v) the paragraph, designated by the number, of the clause, 29
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subclause, item, column, table or form of or in the Schedule 1
in which the reference occurs; and 2
(vi) the subparagraph, designated by the number, of the 3
paragraph in which the reference occurs; and 4
(vii) the subsubparagraph, designated by the number, of the 5
subparagraph in which the reference occurs; and 6
(viii)the section, clause, subclause, item, column, table or form, 7
designated by the number, of or in the Schedule in which the 8
reference occurs, 9
as the case requires. 10
ART 4--FUNCTIONS AND POWERS 11
P
of statutory functions 12
Performance
20.(1) If this Law confers a function or power on a person or body, the 13
function may be performed, or the power may be exercised, from time to 14
time as occasion requires. 15
(2) If this Law confers a function or power on a particular officer or the 16
holder of a particular office, the function may be performed, or the power 17
may be exercised, by the person for the time being occupying or acting in 18
the office concerned. 19
(3) If this Law confers a function or power on a body (whether or not 20
incorporated), the performance of the function, or the exercise of the power, 21
is not affected merely because of vacancies in the membership of the body. 22
to make instrument or decision includes power to amend or 23
Power
repeal 24
21. If this Law authorises or requires the making of an instrument or 25
decision-- 26
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(a) the power includes power to amend or repeal the instrument or 1
decision; and 2
(b) the power to amend or repeal the instrument or decision is 3
exercisable in the same way, and subject to the same conditions, 4
as the power to make the instrument or decision. 5
for which statutory instruments may make provision 6
Matters
22.(1) If this Law authorises or requires the making of a statutory 7
instrument in relation to a matter, a statutory instrument made under this 8
Law may make provision for the matter by applying, adopting or 9
incorporating (with or without modification) the provisions of-- 10
(a) an Act or statutory instrument; or 11
(b) another document (whether of the same or a different kind), 12
as in force at a particular time or as in force from time to time. 13
(2) If a statutory instrument applies, adopts or incorporates the 14
provisions of a document, the statutory instrument applies, adopts or 15
incorporates the provisions as in force from time to time, unless the 16
statutory instrument otherwise expressly provides. 17
(3) A statutory instrument may-- 18
(a) apply generally throughout the jurisdictional area of this scheme 19
participant or be limited in its application to a particular part of 20
that area; or 21
(b) apply generally to all persons, matters or things or be limited in 22
its application to-- 23
(i) particular persons, matters or things; or 24
(ii) particular classes of persons, matters or things; or 25
(c) otherwise apply generally or be limited in its application by 26
reference to specified exceptions or factors. 27
(4) A statutory instrument may-- 28
(a) apply differently according to different specified factors; or 29
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(b) otherwise make different provision in relation to-- 1
(i) different persons, matters or things; or 2
(ii) different classes of persons, matters or things. 3
(5) A statutory instrument may authorise a matter or thing to be from 4
time to time determined, applied or regulated by a specified person or body. 5
(6) If this Law authorises or requires a matter to be regulated by statutory 6
instrument, the power may be exercised by prohibiting by statutory 7
instrument the matter or any aspect of the matter. 8
(7) If this Law authorises or requires provision to be made with respect 9
to a matter by statutory instrument, a statutory instrument made under this 10
Law may make provision with respect to a particular aspect of the matter 11
despite the fact that provision is made by this Law in relation to another 12
aspect of the matter or in relation to another matter. 13
(8) A statutory instrument may provide for the review of, or a right of 14
appeal against, a decision made under the statutory instrument, or this Law, 15
and may, for that purpose, confer jurisdiction on any court, tribunal, person 16
or body. 17
(9) A statutory instrument may require a form prescribed by or under the 18
statutory instrument, or information or documents included in, attached to 19
or given with the form, to be verified by statutory declaration. 20
of validity and power to make 21
Presumption
23.(1) All conditions and preliminary steps required for the making of a 22
statutory instrument are presumed to have been satisfied and performed in 23
the absence of evidence to the contrary. 24
(2) A statutory instrument is taken to be made under all powers under 25
which it may be made, even though it purports to be made under this Law 26
or a particular provision of this Law. 27
may be made by name or office 28
Appointments
24.(1) If this Law authorises or requires a person or body-- 29
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(a) to appoint a person to an office; or 1
(b) to appoint a person or body to exercise a power; or 2
(c) to appoint a person or body to do another thing, 3
the person or body may make the appointment by-- 4
(d) appointing a person or body by name; or 5
(e) appointing a particular officer, or the holder of a particular office, 6
by reference to the title of the office concerned. 7
(2) An appointment of a particular officer, or the holder of a particular 8
office, is taken to be the appointment of the person for the time being 9
occupying or acting in the office concerned. 10
appointments 11
Acting
25.(1) If this Law authorises a person or body to appoint a person to act 12
in an office, the person or body may, in accordance with this Law, 13
appoint-- 14
(a) a person by name; or 15
(b) a particular officer, or the holder of a particular office, by 16
reference to the title of the office concerned, 17
to act in the office. 18
(2) The appointment may be expressed to have effect only in the 19
circumstances specified in the instrument of appointment. 20
(3) The appointer may-- 21
(a) determine the terms and conditions of the appointment, including 22
remuneration and allowances; and 23
(b) terminate the appointment at any time. 24
(4) The appointment, or the termination of the appointment, must be in, 25
or evidenced by, writing signed by the appointer. 26
(5) The appointee must not act for more than one year during a vacancy 27
in the office. 28
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(6) If the appointee is acting in the office otherwise than because of a 1
vacancy in the office and the office becomes vacant, then, subject to 2
subclause (2), the appointee may continue to act until- 3
(a) the appointer otherwise directs; or 4
(b) the vacancy is filled; or 5
(c) the end of a year from the day of the vacancy, 6
whichever happens first. 7
(7) The appointment ceases to have effect if the appointee resigns by 8
writing signed and delivered to the appointer. 9
(8) While the appointee is acting in the office-- 10
(a) the appointee has all the powers and functions of the holder of the 11
office; and 12
(b) this Law and other laws apply to the appointee as if the appointee 13
were the holder of the office. 14
(9) Anything done by or in relation to a person purporting to act in the 15
office is not invalid merely because-- 16
(a) the occasion for the appointment had not arisen; or 17
(b) the appointment had ceased to have effect; or 18
(c) the occasion for the person to act had not arisen or had ceased. 19
(10) If this Law authorises the appointer to appoint a person to act during 20
a vacancy in the office, an appointment to act in the office may be made by 21
the appointer whether or not an appointment has previously been made to 22
the office. 23
of appointment imply certain incidental powers 24
Powers
26.(1) If this Law authorises or requires a person or body to appoint a 25
person to an office-- 26
(a) the power may be exercised from time to time as occasion 27
requires; and 28
(b) the power includes-- 29
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(i) power to remove or suspend, at any time, a person 1
appointed to the office; and 2
(ii) power to appoint another person to act in the office if a 3
person appointed to the office is removed or suspended; and 4
(iii) power to reinstate or reappoint a person removed or 5
suspended; and 6
(iv) power to appoint a person to act in the office if it is vacant 7
(whether or not the office has ever been filled); and 8
(v) power to appoint a person to act in the office if the person 9
appointed to the office is absent or is unable to discharge the 10
functions of the office (whether because of illness or 11
otherwise). 12
(2) The power to remove or suspend a person under subclause (1)(b) 13
may be exercised even if this Law provides that the holder of the office to 14
which the person was appointed is to hold office for a specified period. 15
(3) The power to make an appointment under subclause (1)(b) may be 16
exercised from time to time as occasion requires. 17
(4) An appointment under subclause (1)(b) may be expressed to have 18
effect only in the circumstances specified in the instrument of appointment. 19
20
Delegation
27.(1) If this Law authorises a person to delegate a function or power, the 21
person may, in accordance with this Law, delegate the function or power 22
to-- 23
(a) a person by name; or 24
(b) a particular officer, or the holder of a particular office, by 25
reference to the title of the office concerned. 26
(2) The delegation-- 27
(a) may be general or limited; and 28
(b) may be made from time to time; and 29
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(c) may be revoked, wholly or partly, by the delegator. 1
(3) The delegation, or a revocation of the delegation, must be in, or 2
evidenced by, writing signed by the delegator or if the delegator is a body 3
corporate, by a person authorised by the body corporate for the purpose. 4
(4) A delegated function or power may be exercised only in accordance 5
with any conditions to which the delegation is subject. 6
(5) The delegate may, in the exercise of a delegated function or power, do 7
anything that is incidental to the delegated function or power. 8
(6) A delegated function or power that purports to have been exercised 9
by the delegate is taken to have been duly exercised by the delegate unless 10
the contrary is proved. 11
(7) A delegated function or power that is duly exercised by the delegate is 12
taken to have been exercised by the delegator. 13
(8) If, when exercised by the delegator, a function or power is, under this 14
Law, dependent on the delegator's opinion, belief or state of mind in relation 15
to a matter, the function or power, when exercised by the delegate, is 16
dependent on the delegate's opinion, belief or state of mind in relation to the 17
matter. 18
(9) If a function or power is delegated to a particular officer or the holder 19
of a particular office-- 20
(a) the delegation does not cease to have effect merely because the 21
person who was the particular officer or the holder of the 22
particular office when the power was delegated ceases to be the 23
officer or the holder of the office; and 24
(b) the function or power may be exercised by the person for the time 25
being occupying or acting in the office concerned. 26
(10) A function or power that has been delegated may, despite the 27
delegation, be exercised by the delegator. 28
of powers between enactment and commencement 29
Exercise
28.(1) If a provision of this Law (the "empowering provision") that 30
does not commence on its enactment would, had it commenced, confer a 31
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power-- 1
(a) to make an appointment; or 2
(b) to make a statutory instrument of a legislative or administrative 3
character; or 4
(c) to do another thing, 5
then-- 6
(d) the power may be exercised; and 7
(e) anything may be done for the purpose of enabling the exercise of 8
the power or of bringing the appointment, instrument or other 9
thing into effect, 10
before the empowering provision commences. 11
(2) If a provision of an Act of South Australia (the "empowering 12
provision") that does not commence on its enactment would, had it 13
commenced, amend a provision of this Law so that it would confer a 14
power-- 15
(a) to make an appointment; or 16
(b) to make a statutory instrument of a legislative or administrative 17
character; or 18
(c) to do another thing, 19
then-- 20
(d) the power may be exercised; and 21
(e)anything may be done for the purpose of enabling the exercise 22
of the power or of bringing the appointment, instrument or 23
other thing into effect, 24
before the empowering provision commences. 25
(3) If-- 26
(a) this Law has commenced and confers a power to make a 27
statutory instrument (the "basic instrument-making power"); 28
and 29
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(b) a provision of an Act of South Australia that does not commence 1
on its enactment would, had it commenced, amend this Law so as 2
to confer additional power to make a statutory instrument (the 3
"additional instrument-making power"), 4
then-- 5
(c) the basic instrument-making power and the additional instrument- 6
making power may be exercised by making a single instrument; 7
and 8
(d) any provision of the instrument that required an exercise of the 9
additional instrument-making power is to be treated as made 10
under subclause (2). 11
(4) If an instrument, or a provision of an instrument, is made under 12
subclause (1) or (2) that is necessary for the purpose of-- 13
(a) enabling the exercise of a power mentioned in the subclause; or 14
(b) bringing an appointment, instrument or other thing made or done 15
under such a power into effect, 16
the instrument or provision takes effect-- 17
(c) on the making of the instrument; or 18
(d) on such later day (if any) on which, or at such later time (if any) 19
at which, the instrument or provision is expressed to take effect. 20
(5) If-- 21
(a) an appointment is made under subclause (1) or (2); or 22
(b) an instrument, or a provision of an instrument, made under 23
subclause (1) or (2) is not necessary for a purpose mentioned in 24
subclause (4), 25
the appointment, instrument or provision take effect-- 26
(c) on the commencement of the relevant empowering provision; or 27
(d) on such later day (if any) on which, or at such later time (if any) 28
at which, the appointment, instrument or provision is expressed 29
to take effect. 30
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(6) Anything done under subclause (1) or (2) does not confer a right, or 1
impose a liability, on a person before the relevant empowering provision 2
commences. 3
(7) After the enactment of a provision mentioned in subclause (2) but 4
before the provision's commencement, this clause applies as if the 5
references in subclauses (2) and (5) to the commencement of the 6
empowering provision were references to the commencement of the 7
provision mentioned in subclause (2) as amended by the empowering 8
provision. 9
(8) In the application of this clause to a statutory instrument, a reference 10
to the enactment of the instrument is a reference to the making of the 11
instrument. 12
ART 5--DISTANCE AND TIME 13
P
relating to distance and time 14
Matters
29.(1) In the measurement of distance for the purposes of this Law, the 15
distance is to be measured along the shortest road ordinarily used for 16
travelling. 17
(2) If a period beginning on a given day, act or event is provided or 18
allowed for a purpose by this Law, the period is to be calculated by 19
excluding the day, or the day of the act or event, and-- 20
(a) if the period is expressed to be a specified number of clear days 21
or at least a specified number of days, by excluding the day on 22
which the purpose is to be fulfilled; and 23
(b) in any other case, by including the day on which the purpose is to 24
be fulfilled. 25
(3) If the last day of a period provided or allowed by this Law for doing 26
anything is not a business day in the place in which the thing is to be or may 27
be done, the thing may be done on the next business day in the place. 28
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(4) If the last day of a period provided or allowed by this Law for the 1
filing or registration of a document is a day on which the office is closed 2
where the filing or registration is to be or may be done, the document may 3
be filed or registered at the office on the next day that the office is open. 4
(5) If no time is provided or allowed for doing anything, the thing is to 5
be done as soon as possible, and as often as the prescribed occasion 6
happens. 7
(6) If, in this Law, there is a reference to time, the reference is, in relation 8
to the doing of anything in a jurisdiction, a reference to the legal time in the 9
jurisdiction. 10
PART 6--SERVICE OF DOCUMENTS 11
of documents 12
Service
30.(1) If this Law requires or permits a document to be served on a 13
person (whether the expression "deliver", "give", "notify", "send" or 14
"serve" or another expression is used), the document may be served-- 15
(a) on an individual-- 16
(i) by delivering it to the person personally; or 17
(ii) by leaving it at, or by sending it by post, telex, facsimile or 18
similar facility to, the address of the place of residence or 19
business of the person last known to the person serving the 20
document; or 21
(b) on a body corporate-- 22
(i) by leaving it at the registered office of the body corporate 23
with an officer of the body corporate; or 24
(ii) by sending it by post, telex, facsimile or similar facility to its 25
registered office. 26
(2) Nothing in subclause (1)-- 27
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(a) affects the operation of another law that authorises the service of a 1
document otherwise than as provided in the subclause; or 2
(b) affects the power of a court or tribunal to authorise service of a 3
document otherwise than as provided in the subclause. 4
of service by post etc. 5
Meaning
31.(1) If this Law requires or permits a document to be served by post 6
(whether the expression "deliver", "give", "notify", "send" or "serve" or 7
another expression is used), service-- 8
(a) may be effected by properly addressing, prepaying and posting 9
the document as a letter; and 10
(b) is taken to have been effected at the time at which the letter would 11
be delivered in the ordinary course of post, unless the contrary is 12
proved. 13
(2) If this Law requires or permits a document to be served by a 14
particular postal method (whether the expression "deliver", "give", 15
"notify", "send" or "serve" or another expression is used), the requirement 16
or permission is taken to be satisfied if the document is posted by that 17
method or, if that method is not available, by the equivalent, or nearest 18
equivalent, method provided for the time being by Australia Post. 19
PART 7--EFFECT OF REPEAL, AMENDMENT OR 20
EXPIRATION 21
of Law ceasing to have effect 22
Time
32. If a provision of this Law is expressed-- 23
(a) to expire on a specified day; or 24
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(b) to remain or continue in force, or otherwise have effect, until a 1
specified day, 2
this provision has effect until the last moment of the specified day. 3
Law provisions not revived 4
Repealed
33. If a provision of this Law is repealed or amended by an Act of South 5
Australia, or a provision of an Act of South Australia, the provision is not 6
revived merely because the Act or the provision of the Act-- 7
(a) is later repealed or amended; or 8
(b) later expires. 9
of operation of repealed Law provisions 10
Saving
34.(1) The repeal, amendment or expiry of a provision of this Law does 11
not-- 12
(a) revive anything not in force or existing at the time the repeal, 13
amendment or expiry takes effect; or 14
(b) affect the previous operation of the provision or anything 15
suffered, done or begun under the provision; or 16
(c) affect a right, privilege or liability acquired, accrued or incurred 17
under the provision; or 18
(d) affect a penalty incurred in relation to an offence arising under the 19
provision; or 20
(e) affect an investigation, proceeding or remedy in relation to such a 21
right, privilege, liability or penalty. 22
(2) Any such penalty may be imposed and enforced, and any such 23
investigation, proceeding or remedy may be begun, continued or enforced, 24
as if the provision had not been repealed or amended or had not expired. 25
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of repealed provisions 1
Continuance
35. If an Act of South Australia repeals some provisions of this Law and 2
enacts new provisions in substitution for the repealed provisions, the 3
repealed provisions continue in force until the new provisions commence. 4
and amending Acts to be read as one 5
Law
36. This Law and all Acts of South Australia amending this Law are to 6
be read as one. 7
PART 8--OFFENCES UNDER THIS LAW 8
at end of provision 9
Penalty
37. In this Law, a penalty specified at the end of-- 10
(a) a section (whether or not the section is divided into subsections); 11
or 12
(b) a subsection (but not at the end of a section); or 13
(c) a section or subsection and expressed in such a way as to indicate 14
that it applies only to part of the section or subsection, 15
indicates that an offence mentioned in the section, subsection or part is 16
punishable on conviction or, if no offence is mentioned, a 17
contravention of the section, subsection or part constitutes an offence 18
against the provision that is punishable, on conviction, by a penalty not 19
more than the specified penalty. 20
other than at end of provision 21
Penalty
38.(1) In this Law, a penalty specified for an offence, or a contravention 22
of a provision, indicates that the offence is punishable on conviction, or the 23
contravention constitutes an offence against the provision that is punishable, 24
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on conviction, by a penalty not more than the specified penalty. 1
(2) This clause does not apply to a penalty to which clause 37 applies. 2
offences and summary offences 3
Indictable
39.(1) An offence against this Law that is not punishable by 4
imprisonment is punishable summarily. 5
(2) An offence against this Law that is punishable by imprisonment is, 6
subject to subclause (3), punishable on indictment. 7
(3) If-- 8
(a) a proceeding for an offence against this Law that is punishable by 9
imprisonment is brought in a court of summary jurisdiction; and 10
(b) the prosecutor requests the court to hear and determine the 11
proceeding, 12
the offence is punishable summarily and the court must hear and 13
determine the proceeding. 14
(4) A court of summary jurisdiction must not-- 15
(a) impose, in relation to a single offence against this Law, a period 16
of imprisonment of more than 2 years; or 17
(b) impose, in relation to offences against this Law, cumulative 18
periods of imprisonment that are, in total, more than 5 years. 19
(5) Nothing in this clause renders a person liable to be punished more 20
than once in relation to the same offence. 21
jeopardy 22
Double
40. If an act or omission constitutes an offence-- 23
(a) under this Law; or 24
(b) under another law of this scheme participant or a law of another 25
scheme participant, 26
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and the offender has been punished in relation to the offence under a 1
law mentioned in paragraph (b), the offender is not liable to be 2
punished in relation to the offence under this Law. 3
and abetting, attempts etc. 4
Aiding
41.(1) A person who aids, abets, counsels or procures, or by act or 5
omission is in any way directly or indirectly concerned in or a party to, the 6
commission of an offence against this Law is taken to have committed that 7
offence and is liable to the penalty for the offence. 8
(2) A person who attempts to commit an offence against this Law 9
commits an offence and is punishable as if the attempted offence had been 10
committed. 11
PART 9--INSTRUMENTS UNDER THIS LAW 12
applies to statutory instruments 13
Appendix
42.(1) This Appendix applies to a statutory instrument, and to things that 14
may be done or are required to be done under a statutory instrument, in the 15
same way as it applies to this Law, and things that may be done or are 16
required to be done under this Law, except so far as the context or subject 17
matter otherwise indicates or requires. 18
(2) The fact that a provision of this Appendix refers to this Law and not 19
also to a statutory instrument does not, by itself, indicate that the provision 20
is intended to apply only to this Law. 21
22
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CHEDULE 2 1
¡S
NATIONAL THIRD PARTY ACCESS CODE FOR 2
NATURAL GAS PIPELINE SYSTEMS 3
Introduction 4
This Code establishes a national access regime for natural gas pipeline 5
systems. 6
The objective of this Code is to establish a framework for third party 7
access to gas pipelines that-- 8
(a) facilitates the development and operation of a national market for 9
natural gas; and 10
(b) prevents abuse of monopoly power; and 11
(c) promotes a competitive market for natural gas in which 12
customers may choose suppliers, including producers, retailers 13
and traders; and 14
(d) provides rights of access to natural gas pipelines on conditions 15
that are fair and reasonable for both Service Providers and Users; 16
and 17
(e) provides for resolution of disputes. 18
Under the Code, the owner or operator of a Pipeline that is Covered 19
under the Code is required to lodge an Access Arrangement with the 20
Relevant Regulator. The Access Arrangement is similar in many respects 21
to an undertaking under Part IIIA of the Trade Practices Act and is designed 22
to allow the owner or operator of the Covered Pipeline to develop its own 23
Tariffs and other terms and conditions under which access will be made 24
available, subject to the requirements of the Code. The Relevant Regulator 25
will seek comments on the Access Arrangement and then may either accept 26
it or reject it and specify amendments it requires to be made to the Access 27
Arrangement. If rejected, the Access Arrangement must be modified and 28
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resubmitted. Under certain circumstances, the Relevant Regulator may 1
draft and approve its own Access Arrangement. The legislation which 2
implements the Code provides for administrative review of certain 3
regulatory decisions made under the Code. 4
Important features of the Code are-- 5
· Coverage - the mechanism by which Pipelines (including 6
distribution systems) become subject to the Code; 7
· reliance on an up-front Access Arrangement outlining Services 8
and Reference Tariffs applicable to a Covered Pipeline; 9
· pricing principles; 10
· ring fencing; 11
· information disclosure requirements; 12
· binding arbitration where there is a dispute; and 13
· specific timelines for all processes. 14
The aim of the Code is to provide sufficient prescription so as to reduce 15
substantially the number of likely arbitrations, while at the same time 16
incorporating enough flexibility for the parties to negotiate contracts within 17
an appropriate framework. The Code has also been designed to provide a 18
clear national access regime, with consistency between different 19
jurisdictions. 20
This introduction to the Code and the overview in italics at the beginning 21
of each section of the Code do not form part of the Code but in certain 22
circumstances regard may be had to them in interpreting the Code (see 23
Sections 10.4 and 10.5). 24
25
Coverage
1. This section of the Code describes the kinds of gas infrastructure 26
which are subject to the Code and the basis on which particular 27
infrastructure is or may become subject to the Code. 28
In relation to the first issue, the scope of the Code is limited to Pipelines 29
used for the haulage of Natural Gas. The definition of Pipeline includes gas 30
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transmission pipelines and distribution networks and related facilities, but 1
excludes upstream facilities. 2
In relation to the second issue, a Pipeline may become Covered in 1 of 4 3
ways. 4
· Schedule A lists the Pipelines which are automatically Covered 5
by the Code (section 1.1). 6
· In relation to other Pipelines, a case by case approach applies 7
under which specific criteria are applied to individual Pipelines to 8
determine whether they are Covered (sections 1.2-1.19). 9
· In addition, where a Pipeline is not Covered a Service Provider 10
may itself request Coverage by proposing an Access 11
Arrangement for the Pipeline to the Relevant Regulator for 12
approval (sections 1.20 and 2.3). 13
· Finally, if a competitive tender process approved by the Relevant 14
Regulator is used to select the Service Provider for a new 15
Pipeline, that new Pipeline will be Covered from the time the 16
Relevant Regulator approves the outcome of the competitive 17
tender (section 1.21). 18
The Code accordingly provides a high degree of certainty for the 19
Pipelines identified in Schedule A, while retaining the flexibility 20
to bring in other or new Pipelines on a case-by-case basis. 21
Additional flexibility to respond to changing circumstances exists 22
as a result of the potential for Coverage to be Revoked where the 23
criteria for Coverage cease to be satisfied. 24
In simple terms, the process for case by case Coverage is as 25
follows-- 26
· any person may seek Coverage of a Pipeline by applying to 27
the National Competition Council (the NCC); 28
· the NCC publishes a public notice on the application and 29
seeks submissions, including from the Service Provider; 30
· the NCC considers the submissions and makes a 31
recommendation to the Relevant Minister, applying specified 32
criteria; and 33
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· the Relevant Minister considers the recommendation and 1
decides on Coverage. 2
The term "Pipeline" is defined in the Gas Pipelines Access Law 3
to include part of a Pipeline. Consequently, an application can be 4
made for the Coverage of the whole or any part of a Pipeline 5
provided the Pipeline or the relevant part of the Pipeline is owned 6
or operated by the same Service Provider or group of Service 7
Providers. 8
The process for Revocation is similar to the process for 9
Coverage. 10
As a decision to Cover a Pipeline or revoke Coverage of a 11
Pipeline can have major commercial implications for the Service 12
Provider and Prospective Users, the Gas Pipelines Access Law 13
provides a mechanism for review of the decision by the Relevant 14
Appeals Body. 15
An extensions/expansions policy in the Access Arrangement for 16
a Covered Pipeline will define when an extension to, or expansion 17
of the Capacity of, a Covered Pipeline will be treated as part of the 18
same Covered Pipeline and when that extension or expansion is 19
to be regarded as a separate Pipeline which may be the subject of 20
a separate Coverage application. 21
Pipelines in Schedule A are Covered 22
1.1 Each Pipeline listed in Schedule A is a Covered Pipeline from the 23
date of commencement of the Code. 24
NCC to Recommend on an Application for Coverage 25
1.2 Pipelines other than those listed in Schedule A may become Covered 26
after the commencement of the Code where a person applies to the NCC for 27
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the Pipeline to be Covered and, after receiving a recommendation from the 1
NCC, the Relevant Minister decides that the Pipeline should be Covered. 2
1.3 Any person, including the Relevant Regulator, may make an 3
application to the NCC requesting that a particular Pipeline be Covered. A 4
single application may be made under this section 1.3 for the Coverage of 5
the whole or any part of a Pipeline, provided that all of that Pipeline, or all 6
of that part of a Pipeline, is owned or operated by the same Service Provider 7
or group of Service Providers. The NCC may publish guidelines 8
concerning the form and content of Coverage applications and specifying 9
the amount of any fee to be paid on the making of an application. If it does 10
so, applications must be made in accordance with those guidelines. 11
1.4 When the NCC receives an application under section 1.3 the NCC 12
must-- 13
(a) if it considers that the application has been made on trivial or 14
vexatious grounds, reject the application without further 15
consideration; and 16
(b) in all other cases within 14 days after receipt of the application-- 17
(i) inform the Service Provider and each other person known to 18
the NCC who the NCC believes has a sufficient interest in 19
the matter that it has received the application; and 20
(ii) publish a notice in a national daily newspaper which at 21
least-- 22
(A) describes the Pipeline to which the application relates; 23
(B) states how copies of the application may be obtained; 24
and 25
(C) requests submissions within 21 days after the date of 26
the notice. 27
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1.5 The NCC must provide a copy of the application to any person 1
within 7 days after the person requests a copy and pays any reasonable fee 2
required by the NCC. 3
1.6 Within 35 days (but not earlier than 21 days) after the day on which a 4
notice is published under section 1.4(b), the NCC must prepare a draft 5
recommendation on the application and provide a copy of the draft 6
recommendation to the applicant, the Service Provider, each person who 7
made a submission and any other person who requests a copy. In 8
preparing the draft recommendation the NCC must consider any 9
submissions received within the time specified in the notice published under 10
section 1.4(b) and it may (but is not obliged to) consider any submissions 11
received after that time. 12
1.7 Within 28 days (but not earlier than 14 days) after the day on which 13
its draft recommendation became publicly available, the NCC must submit 14
a recommendation to the Relevant Minister-- 15
(a) that the Pipeline be Covered; or 16
(b) that the Pipeline not be Covered. 17
If the NCC recommends that the Pipeline be Covered, the NCC may 18
do so to a greater or lesser extent than requested by the applicant if, 19
having regard to the part of the Pipeline that is necessary to provide 20
Services that Prospective Users may seek, the NCC considers it 21
appropriate. The NCC may not recommend Coverage of a greater part 22
of a Pipeline than is owned or operated by the same Service Provider 23
or group of Service Providers. 24
1.8 In forming its recommendation the NCC must consider any 25
submissions received from the Service Provider, the applicant or any other 26
person within 14 days after the date on which its draft recommendation 27
became publicly available and it may (but is not obliged to) consider 28
submissions received after that time. 29
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1.9 Subject to sections 1.4(a) and 1.10, the NCC must recommend that 1
the Pipeline be Covered (either to the extent described, or to a greater or 2
lesser extent than that described, in the application) if the NCC is satisfied of 3
all of the following matters, and cannot recommend that the Pipeline be 4
Covered, to any extent, if the NCC is not satisfied of one or more of the 5
following matters-- 6
(a) that access (or increased access) to Services provided by means 7
of the Pipeline would promote competition in at least one market 8
(whether or not in Australia), other than the market for the 9
Services provided by means of the Pipeline; 10
(b) that it would be uneconomic for anyone to develop another 11
Pipeline to provide the Services provided by means of the 12
Pipeline; 13
(c) that access (or increased access) to the Services provided by 14
means of the Pipeline can be provided without undue risk to 15
human health or safety; and 16
(d) that access (or increased access) to the Services provided by 17
means of the Pipeline would not be contrary to the public interest. 18
1.10 At any time prior to the NCC making a recommendation the 19
relevant Service Provider may notify the NCC that it agrees to Coverage of 20
the Pipeline to the same extent as specified in the application. The NCC 21
may then recommend that the Pipeline be Covered to the same extent as 22
specified in the application without considering the matters set out in 23
paragraphs (a) to (d) of section 1.9. The NCC must forward the Service 24
Provider's notice to the Relevant Minister with its recommendation. 25
1.11 The NCC must provide a copy of its recommendation and the 26
reasons for the recommendation to the Service Provider, the applicant, each 27
person who made a submission and any other person who requests a copy. 28
1.12 The applicant may withdraw the application by notice to the NCC at 29
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any time before the Relevant Minister makes a decision concerning 1
Coverage of the Pipeline. 2
Relevant Minister to Decide on a Coverage Recommendation 3
1.13 Within 21 days after a Coverage recommendation is received by the 4
Relevant Minister, the Relevant Minister must make a decision-- 5
(a) that the Pipeline is Covered; or 6
(b) that the Pipeline is not Covered. 7
If the Relevant Minister decides that the Pipeline is Covered, the 8
Relevant Minister may do so to a greater or lesser extent than 9
requested by the applicant if, having regard to the part of the Pipeline 10
that is necessary to provide Services that Prospective Users may seek, 11
the Relevant Minister considers it appropriate. The Relevant Minister 12
may not decide that a greater part of a Pipeline is Covered than is 13
owned or operated by the same Service Provider or group of Service 14
Providers. 15
1.14 The Relevant Minister may require the NCC to provide such 16
information, reports and other assistance as the Relevant Minister considers 17
appropriate for the purpose of considering the application. 18
1.15 Subject to section 1.16, the Relevant Minister must decide that the 19
Pipeline is Covered (either to the extent described, or to a greater or lesser 20
extent than that described, in the application) if the Relevant Minister is 21
satisfied of all of the matters set out in paragraphs (a) to (d) of section 1.9, 22
but the Relevant Minister cannot decide that the Pipeline is Covered, to any 23
extent, if not satisfied of one or more of those matters. 24
1.16 If the NCC receives a notice under section 1.10, the Relevant 25
Minister may decide that the Pipeline is a Covered Pipeline without 26
considering the matters set out in paragraphs (a) to (d) of section 1.9. 27
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1.17 Promptly after making a decision the Relevant Minister must 1
provide a copy of the decision and reasons for the decision to the NCC, the 2
Relevant Regulator, the Service Provider, the applicant, each person who 3
made a submission to the NCC and any other person who requests a copy. 4
1.18 The decision on Coverage and the notice and reasons referred to in 5
section 1.17 must contain a detailed description of the Pipeline the subject of 6
the decision. 7
1.19 The decision on Coverage is subject to review by the Relevant 8
Appeals Body under the Gas Pipelines Access Law. Subject to the Gas 9
Pipelines Access Law, a decision on Coverage has effect on the date 10
specified by the Relevant Minister, which date must not be earlier than 11
14 days after the day the decision was made. 12
Pipelines subject to Access Arrangements submitted under section 2.3 13
are Covered 14
1.20 A Pipeline which is subject to an Access Arrangement submitted 15
under section 2.3 is Covered from the date that the Access Arrangement 16
becomes effective until the expiry date, if any, as contemplated under 17
section 3.20. An application may be made under section 1.3 requesting that 18
such a Pipeline remain Covered after the Access Arrangement expires if the 19
period from the date of the application to the date on which the Access 20
Arrangement expires is not more than 90 days. 21
New Pipelines the subject of an approved competitive tender are 22
Covered 23
1.21 If the Relevant Regulator makes a decision under section 3.32 24
approving the outcome of a competitive tender the Pipeline concerned shall 25
be a Covered Pipeline from the time of that decision. 26
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Prospective Service Provider may seek Opinion of NCC 1
1.22 A Prospective Service Provider may request an opinion from the 2
NCC as to whether a proposed Pipeline would meet the criteria for 3
Coverage in section 1.9. 4
1.23 The NCC may provide an opinion in response to a request under 5
section 1.22 but the opinion does not bind the NCC in relation to any 6
subsequent application for Coverage of the Pipeline. 7
Revocation of Coverage 8
1.24 Pipelines listed in Schedule A and Pipelines that have become 9
Covered after the commencement of the Code may cease to be Covered 10
where a person applies to the NCC for Coverage of the Covered Pipeline to 11
be revoked and, after receiving a recommendation from the NCC, the 12
Relevant Minister determines that Coverage of the Covered Pipeline should 13
be revoked. 14
1.25 Any person, including the Relevant Regulator, may make an 15
application to the NCC requesting that Coverage of a particular Covered 16
Pipeline be revoked. The NCC may publish guidelines concerning the form 17
and content of revocation applications and specifying the amount of any fee 18
to be paid on the making of an application. If it does so, applications must 19
be made in accordance with those guidelines. 20
1.26 When the NCC receives an application it must-- 21
(a) (except where the application has been made by the Relevant 22
Regulator) if it considers that the application has been made on 23
trivial or vexatious grounds, reject the application without further 24
consideration; 25
(b) in all other cases within 14 days after the receipt of the 26
application-- 27
(i) inform the Service Provider and each other person known to 28
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the NCC who the NCC believes has a sufficient interest in 1
the matter that it has received the application; and 2
(ii) publish a notice in a national daily newspaper which at 3
least-- 4
(A) describes the Covered Pipeline to which the application 5
relates; 6
(B) states how copies of the application may be obtained; 7
and 8
(C) requests submissions within 21 days after the date of 9
the notice. 10
1.27 The NCC must provide a copy of the application to any person 11
within 7 days after the person requests a copy and pays any reasonable fee 12
required by the NCC. 13
1.28 Within 35 days (but not earlier than 21 days) after the day on which 14
a notice is published under section 1.26(b), the NCC must prepare a draft 15
recommendation on the application and provide a copy of the draft 16
recommendation to the Service Provider, the applicant, each person who 17
made a submission and any other person who requests a copy. In 18
preparing the draft recommendation the NCC must consider any 19
submissions received within the time specified in the notice published under 20
section 1.26(b) and it may (but is not obliged to) consider any submissions 21
received after that time. 22
1.29 Within 28 days (but not earlier than 14 days) after the day on which 23
its draft recommendation became publicly available, the NCC must submit 24
a recommendation to the Relevant Minister-- 25
(a) that Coverage of the Covered Pipeline be revoked; or 26
(b) that Coverage of the Covered Pipeline not be revoked. 27
If the NCC recommends that Coverage of the Covered Pipeline be 28
revoked, it may do so to a greater or lesser extent than requested by the 29
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applicant if, having regard to the part of the Covered Pipeline that is 1
necessary to provide services that Prospective Users may seek, the 2
NCC considers it appropriate. 3
1.30 In forming its recommendation the NCC must consider any 4
submissions received from the Service Provider, the applicant or any other 5
person within 14 days after the date on which its draft recommendation 6
became publicly available and it may (but is not obliged to) consider any 7
submissions received after that time. 8
1.31 Subject to section 1.26(a), the NCC cannot recommend that 9
Coverage of the Covered Pipeline be Revoked, to any extent, if the NCC is 10
satisfied of all of the matters set out in paragraphs (a) to (d) of section 1.9, 11
but the NCC must recommend that Coverage of the Covered Pipeline be 12
revoked (either to the extent described, or to a greater or lesser extent than 13
that described, in the application) if the NCC is not satisfied of one or more 14
of those matters. 15
1.32 The NCC must provide a copy of its recommendation and the 16
reasons for the recommendation to the Service Provider, the applicant, each 17
person who made a submission and any other person who requests a copy. 18
1.33 The applicant may withdraw the application by notice to the NCC at 19
any time before the Relevant Minister makes a decision concerning 20
revocation of Coverage of the Covered Pipeline. 21
Relevant Minister to Decide on a Revocation Recommendation 22
1.34 Within 21 days after a revocation recommendation is received by 23
the Relevant Minister, the Relevant Minister must make a decision-- 24
(a) that Coverage of the Covered Pipeline is revoked; or 25
(b) that Coverage of the Covered Pipeline is not revoked. 26
If the Relevant Minister decides that Coverage of the Covered Pipeline 27
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is revoked, the Relevant Minister may do so to a greater or lesser 1
extent than requested by the applicant if, having regard to the part of 2
the Pipeline that is necessary to provide Services that Prospective 3
Users may seek, the Relevant Minister considers it appropriate. 4
1.35 The Relevant Minister may require the NCC to provide such 5
information, reports and other assistance as the Relevant Minister considers 6
appropriate for the purpose of considering the application. 7
1.36 The Relevant Minister must decide not to revoke Coverage of the 8
Covered Pipeline, to any extent, if the Relevant Minister is satisfied of all of 9
the matters set out in paragraphs (a) to (d) of section 1.9, but the Relevant 10
Minister must decide to revoke Coverage of the Covered Pipeline (either to 11
the extent described, or to a greater or lesser extent than that described, in 12
the application) if not satisfied of one or more of those matters. 13
1.37 Promptly after making a decision the Relevant Minister must 14
provide a copy of the decision and reasons for the decision to the NCC, the 15
Relevant Regulator, the Service Provider, the applicant, each person who 16
made a submission to the NCC and any other person who requests a copy. 17
1.38 The decision on revocation and the notice and reasons referred to in 18
section 1.37 must, if the decision is to revoke Coverage for part or all of the 19
Covered Pipeline, contain a detailed description of the Covered Pipeline the 20
subject of the decision. 21
1.39 A decision on revocation is subject to review by the Relevant 22
Appeals Body under the Gas Pipelines Access Law. Subject to the Gas 23
Pipelines Access Law, the decision on revocation has effect on the date 24
specified by the Relevant Minister, which date must not be earlier than 25
14 days after the day the decision was made. 26
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Extensions/Expansions of a Covered Pipeline 1
1.40 An extension to, or expansion of the Capacity of, a Covered 2
Pipeline shall be treated as part of the Covered Pipeline for all purposes 3
under the Code if the Extensions/Expansions Policy contained in the 4
Access Arrangement for that Covered Pipeline provides for that extension 5
or expansion to be treated as part of the Covered Pipeline. 6
1.41 The Service Provider must notify the Code Registrar of any 7
extension to, or expansion of the Capacity of, a Covered Pipeline which is 8
to be treated as part of the Covered Pipeline pursuant to section 1.40 when 9
the extension or expansion would require an amendment to the description 10
of the Covered Pipeline on the Public Register in order for that description 11
to remain an accurate description of the Covered Pipeline. 12
arrangements 13
Access
2. Where a Pipeline is Covered, this section of the Code requires a 14
Service Provider to establish an Access Arrangement to the satisfaction of 15
the Relevant Regulator for that Covered Pipeline. An Access Arrangement 16
is a statement of the policies and the basic terms and conditions which apply 17
to third party access to a Covered Pipeline. The Service Provider and a 18
User or Prospective User are free to agree to terms and conditions that 19
differ from the Access Arrangement (with the exception of the Queuing 20
Policy). If an access dispute arises, however, and is referred to the Relevant 21
Regulator, the Relevant Regulator (or any other Arbitrator it appoints) must 22
apply the provisions of the Access Arrangement in resolving the dispute. If 23
a Pipeline is not Covered a Service Provider may voluntarily propose an 24
Access Arrangement to the Relevant Regulator for approval. Upon 25
approval the Pipeline becomes a Covered Pipeline. 26
An Access Arrangement must be submitted to the Relevant Regulator 27
for approval. The Relevant Regulator may approve an Access Arrangement 28
only if the Access Arrangement satisfies the minimum requirements set out 29
in section 3. The Relevant Regulator must not refuse to approve an Access 30
Arrangement solely for the reason that the proposed Access Arrangement 31
does not address a matter that section 3 does not require an Access 32
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Arrangement to address. Subject to this limit, the Relevant Regulator has a 1
broad discretion to refuse to accept an Access Arrangement. If section 3 2
permits a range of outcomes on a particular issue (for example, any 3
Revisions Commencement Date is permitted), the Relevant Regulator may 4
reject an outcome proposed by the Service Provider which is within the 5
permitted range and require a particular outcome be included in the Access 6
Arrangement (for example, a particular Revisions Commencement Date). 7
An Access Arrangement submitted to the Relevant Regulator for 8
approval must be accompanied by Access Arrangement Information. 9
Access Arrangement Information should enable Users and Prospective 10
Users to understand the derivation of the elements of the proposed Access 11
Arrangement and form an opinion as to the compliance of the Access 12
Arrangement with the Code. The Access Arrangement Information must 13
include the categories of information identified in Attachment A to the 14
Code. 15
The process whereby a compulsory Access Arrangement is approved 16
can be summarised as follows-- 17
· The Service Provider submits a proposed Access Arrangement, 18
together with the Access Arrangement Information, to the 19
Relevant Regulator. 20
· The Relevant Regulator may require the Service Provider to 21
amend and resubmit the Access Arrangement Information. 22
· The Relevant Regulator publishes a public notice and seeks 23
submissions on the application. 24
· The Relevant Regulator considers the submissions, issues a draft 25
decision and then, after considering any submissions received on 26
the draft, makes a final decision which either-- 27
· approves the proposed Access Arrangement; or 28
· does not approve the proposed Access Arrangement and 29
states the revisions to the Access Arrangement which would 30
be required before the Relevant Regulator would approve it; 31
or 32
· approves a revised Access Arrangement submitted by the 33
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Service Provider which incorporates amendments specified 1
by the Relevant Regulator in its draft decision. 2
· If the Relevant Regulator does not approve the Access 3
Arrangement, the Service Provider may propose an 4
amended Access Arrangement which incorporates the 5
revisions required by the Relevant Regulator. If the Service 6
Provider does not do so, the Relevant Regulator can impose 7
its own Access Arrangement. 8
· The Gas Pipeline Access Law provides a mechanism for the 9
review of a decision by the Relevant Regulator to impose an 10
Access Arrangement. 11
A similar process applies in relation to voluntary Access Arrangements, 12
except that the Service Provider may withdraw the application at any time 13
prior to approval of the Access Arrangement and the Relevant Regulator 14
may only approve or disapprove the Access Arrangement; it may not 15
impose its own Access Arrangement. 16
An Access Arrangement must include a date for review. In addition, 17
changes to an Access Arrangement may be made before a review date if the 18
Relevant Regulator and the Service Provider agree. In either case if 19
revisions to the Access Arrangement are proposed, a process of public 20
consultation and approval by the Relevant Regulator, similar to that 21
followed for approving a compulsory Access Arrangement, must be 22
followed. The Relevant Regulator may, however, dispense with public 23
consultation if changes proposed between reviews are sufficiently minor. 24
Submission of Access Arrangements 25
2.1 The Relevant Regulator may at any time prepare and release for 26
public comment, discussion or issues papers and hold public consultations 27
concerning any matter relevant to its functions under the Code. 28
2.2 If a Pipeline is Covered, the Service Provider must submit a 29
proposed Access Arrangement together with the applicable Access 30
Arrangement Information for the Covered Pipeline to the Relevant 31
Regulator-- 32
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(a) within 90 days after the Pipeline becomes Covered under 1
section 1.19 or 1.21 if the Covered Pipeline is not described in 2
Schedule A; or 3
(b) within 90 days after the commencement of the Code if the 4
Covered Pipeline is described in Schedule A. 5
2.3 If a Pipeline is not Covered, a Service Provider may (or, in respect of 6
a proposed Pipeline, a Prospective Service Provider may) apply to the 7
Relevant Regulator for approval of an Access Arrangement by submitting 8
the proposed Access Arrangement to the Relevant Regulator together with 9
the applicable Access Arrangement Information. In sections 2.4 to 2.27 10
(inclusive) the term "Service Provider" includes a Prospective Service 11
Provider. In section 2.24 the term "Covered Pipeline" includes the Pipeline 12
the subject of an Access Arrangement submitted under this section 2.3. 13
2.4 If the Relevant Regulator so requires by a notice in writing (which 14
may be given either before or after the Service Provider submits an Access 15
Arrangement), the Service Provider must submit separate Access 16
Arrangements (together with Access Arrangement Information) for 17
different parts of the Covered Pipeline as specified by the Relevant 18
Regulator, so that the separate Access Arrangements in total apply to the 19
whole of the Covered Pipeline. The Service Provider may (if the Relevant 20
Regulator agrees) voluntarily submit separate Access Arrangements 21
(together with Access Arrangement Information) for different parts of the 22
Covered Pipeline, so that the separate Access Arrangements in total apply to 23
the whole of the Covered Pipeline. If separate Access Arrangements are 24
submitted in accordance with this clause each part of a Pipeline that is the 25
subject of an Access Arrangement will be treated as a separate Covered 26
Pipeline for all purposes under the Code. 27
2.5 An Access Arrangement may include any relevant matter but must 28
include at least the elements described in sections 3.1 to 3.20. 29
2.6 Access Arrangement Information must contain such information as 30
in the opinion of the Relevant Regulator would enable Users and 31
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Prospective Users to understand the derivation of the elements in the 1
proposed Access Arrangement and to form an opinion as to the compliance 2
of the Access Arrangement with the provisions of the Code. 3
2.7 The Access Arrangement Information may include any relevant 4
information but must include at least the categories of information described 5
in Attachment A. 6
2.8 Information included in Access Arrangement Information, including 7
information of a type described in Attachment A, may be categorised or 8
aggregated to the extent necessary to ensure the disclosure of the 9
information is, in the opinion of the Relevant Regulator, not unduly harmful 10
to the legitimate business interests of the Service Provider or a User or 11
Prospective User. However, nothing in this section 2.8 limits the Relevant 12
Regulator's power under the Gas Pipelines Access Law to obtain 13
information, including information in an uncategorised or unaggregated 14
form. 15
Public Consultation and Approval 16
2.9 At any time after the receipt of the applicable Access Arrangement 17
Information under section 2.2 or 2.3 and before a decision is made to 18
approve an Access Arrangement, the Relevant Regulator-- 19
(a) may, of its own volition, require the Service Provider to make 20
changes to the Access Arrangement Information if the Relevant 21
Regulator is not satisfied that the Access Arrangement 22
Information meets the requirements of sections 2.6 and 2.7; and 23
(b) must, if requested to do so by any person, consider whether the 24
Access Arrangement Information meets the requirements of 25
sections 2.6 and 2.7 and decide whether or not to require the 26
Service Provider to make changes to the Access Arrangement 27
Information accordingly. 28
If the Relevant Regulator requires the Service Provider to make 29
changes to the Access Arrangement Information it must specify the 30
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reasons for its decision and must specify a reasonable time by which 1
the proposed Access Arrangement Information that rectifies the 2
matters identified by the Relevant Regulator must be resubmitted. The 3
Relevant Regulator must not require information to be included in 4
Access Arrangement Information the release of which in the Relevant 5
Regulator's opinion could be unduly harmful to the legitimate business 6
interests of the Service Provider or a User or Prospective User. If the 7
Relevant Regulator requires the Service Provider to make changes to 8
the Access Arrangement Information, the Service Provider must 9
submit Access Arrangement Information amended as required by the 10
Relevant Regulator, by the date specified by the Relevant Regulator. 11
2.10 After receiving a proposed Access Arrangement the Relevant 12
Regulator must-- 13
(a) inform each person known to the Relevant Regulator who the 14
Relevant Regulator believes has a sufficient interest in the matter 15
that it has received the proposed Access Arrangement and Access 16
Arrangement Information; and 17
(b) publish a notice in a national daily newspaper which at least-- 18
(i) describes the Covered Pipeline to which the proposed 19
Access Arrangement relates; 20
(ii) states how copies of the proposed Access Arrangement and 21
the Access Arrangement Information may be obtained; and 22
(iii) requests submissions by a date specified in the notice. 23
2.11 The Relevant Regulator must provide a copy of the proposed 24
Access Arrangement and the Access Arrangement Information to any 25
person within 7 days after the person requests a copy and pays any 26
reasonable fee required by the Relevant Regulator. 27
2.12 The Relevant Regulator must consider any submissions received by 28
the date specified in the notice published under section 2.10(b) and it may 29
(but is not obliged) to consider any submissions received after that date. 30
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2.13 After considering submissions received by the date specified in the 1
notice published under section 2.10(b) the Relevant Regulator must issue a 2
draft decision which either-- 3
(a) proposes to approve the Access Arrangement; or 4
(b) proposes not to approve the Access Arrangement and states the 5
amendments (or nature of the amendments) which would have to 6
be made to the Access Arrangement in order for the Relevant 7
Regulator to approve it. 8
2.14 The Relevant Regulator must-- 9
(a) provide a copy of its draft decision to the Service Provider, any 10
person who made a submission on the matter and any other 11
person who requests a copy; and 12
(b) request submissions from persons to whom it provides the draft 13
decision by a date specified by the Relevant Regulator. 14
2.15 The Relevant Regulator must consider any submissions received by 15
the date specified by the Relevant Regulator under section 2.14 and it may 16
(but is not obliged) to consider any submissions received after that date. 17
2.16 After considering submissions received by the date specified by the 18
Relevant Regulator under section 2.14, the Relevant Regulator must issue a 19
final decision which-- 20
(a) approves the Access Arrangement; or 21
(b) does not approve the Access Arrangement and states the 22
amendments (or nature of the amendments) which would have to 23
be made to the Access Arrangement in order for the Relevant 24
Regulator to approve it and the date by which a revised Access 25
Arrangement must be resubmitted by the Service Provider; or 26
(c) approves a revised Access Arrangement submitted by the Service 27
Provider which the Relevant Regulator is satisfied incorporates 28
the amendments specified by the Relevant Regulator in its draft 29
decision. 30
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2.17 The Relevant Regulator must provide a copy of its final decision to 1
the Service Provider, any person who made a submission on the matter and 2
any other person who requests a copy. 3
2.18 If the Relevant Regulator decides not to approve the Access 4
Arrangement under section 2.16(b), the Service Provider must by the date 5
specified by the Relevant Regulator under section 2.16(b) submit a revised 6
Access Arrangement to the Relevant Regulator. 7
2.19 If the Service Provider submits a revised Access Arrangement by 8
the date specified by the Relevant Regulator under section 2.16(b), which 9
the Relevant Regulator is satisfied incorporates the amendments specified 10
by the Relevant Regulator in its final decision, the Relevant Regulator must 11
issue a final decision that approves the revised Access Arrangement. 12
2.20 If the Service Provider does not submit a revised Access 13
Arrangement by the date specified by the Relevant Regulator under 14
section 2.16(b) or submits a revised Access Arrangement which the 15
Relevant Regulator is not satisfied incorporates the amendments specified 16
by the Relevant Regulator in its final decision, the Relevant Regulator 17
must-- 18
(a) in the case of an Access Arrangement submitted under 19
section 2.2, draft and approve its own Access Arrangement, 20
instead of the Access Arrangement proposed by the Service 21
Provider; or 22
(b) in the case of an Access Arrangement submitted voluntarily 23
under section 2.3, not approve the Access Arrangement. 24
2.21 The Relevant Regulator must issue a final decision under 25
section 2.16 (and sections 2.19 and 2.20, if applicable) within six months of 26
receiving a proposed Access Arrangement. The Relevant Regulator must 27
also ensure that-- 28
(a) there is a period of at least 28 days between the publication of a 29
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notice under section 2.10(b) and the last day for submissions 1
specified in that notice; and 2
(b) there is a period of at least 14 days between the publication of a 3
draft decision under section 2.14 and the last day for submissions 4
on the draft decision specified by the Relevant Regulator; and 5
(c) there is a period of at least 14 days between the publication of a 6
final decision under section 2.16(b) and the date specified by the 7
Relevant Regulator as the last day for the Service Provider to 8
submit a revised Access Arrangement. 9
In all other respects the timing for the taking of each of the steps set 10
out in sections 2.9, 2.10 and 2.12 to 2.20 (inclusive) is a matter for the 11
Relevant Regulator to determine. 12
2.22 The Relevant Regulator may increase the period of six months 13
specified in section 2.21 by periods of up to two months on one or more 14
occasions provided it publishes in a national newspaper notice of the 15
decision to increase the period. 16
2.23 If a Service Provider fails to submit a proposed Access 17
Arrangement within the time required under section 2.2, the Relevant 18
Regulator may draft and approve its own Access Arrangement. Before 19
approving its own Access Arrangement under this section 2.23 the Relevant 20
Regulator must-- 21
(a) prepare an information package which, to the extent practicable, 22
meets the requirements of sections 2.6 and 2.7; and 23
(b) follow the process set out in sections 2.10 to 2.15 (inclusive) to 24
the extent practicable as though the Access Arrangement drafted 25
by the Relevant Regulator had been proposed by the Service 26
Provider and the information package prepared by the Relevant 27
Regulator had been Access Arrangement Information proposed 28
by the Service Provider. 29
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2.24 The Relevant Regulator may approve a proposed Access 1
Arrangement only if it is satisfied the proposed Access Arrangement 2
contains the elements and satisfies the principles set out in sections 3.1 to 3
3.20. The Relevant Regulator must not refuse to approve a proposed 4
Access Arrangement solely for the reason that the proposed Access 5
Arrangement does not address a matter that sections 3.1 to 3.20 do not 6
require an Access Arrangement to address. In assessing a proposed Access 7
Arrangement, the Relevant Regulator must take the following into 8
account-- 9
(a) the Service Provider's legitimate business interests and 10
investment in the Covered Pipeline; 11
(b) firm and binding contractual obligations of the Service Provider 12
or other persons (or both) already using the Covered Pipeline; 13
(c) the operational and technical requirements necessary for the safe 14
and reliable operation of the Covered Pipeline; 15
(d) the economically efficient operation of the Covered Pipeline; 16
(e) the public interest, including the public interest in having 17
competition in markets (whether or not in Australia); 18
(f) the interests of Users and Prospective Users; 19
(g) any other matters that the Relevant Regulator considers are 20
relevant. 21
2.25 The Relevant Regulator must not approve an Access Arrangement 22
(or draft and approve its own Access Arrangement) any provision of which 23
would, if applied, deprive any person of a contractual right in existence prior 24
to the date the proposed Access Arrangement was submitted (or required to 25
be submitted), other than an Exclusivity Right which arose on or after 26
30 March 1995. 27
2.26 A decision by the Relevant Regulator under section 2.20(a) or 2.23 28
is subject to review by the Relevant Appeals Body under the Gas Pipelines 29
Access Law. Subject to the Gas Pipelines Access Law, the Relevant 30
Regulator's decision to approve the proposed Access Arrangement has 31
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effect on the date specified by the Relevant Regulator, which date must be 1
not less than 14 days after the day the decision was made. 2
2.27 A Service Provider may withdraw a proposed Access Arrangement 3
submitted under section 2.3 at any time before it is approved by the 4
Relevant Regulator. In those circumstances the Service Provider is not 5
required to comply with a related decision made under section 2.9. 6
Review of an Access Arrangement 7
2.28 By the date provided for in the Access Arrangement as the 8
Revisions Submission Date (or as otherwise required by an Access 9
Arrangement), the Service Provider must, and at any other time the Service 10
Provider may, submit to the Relevant Regulator proposed revisions to the 11
Access Arrangement together with the applicable Access Arrangement 12
Information. 13
2.29 The Access Arrangement as revised by the proposed revisions may 14
include any relevant matter but must include at least the elements described 15
in sections 3.1 to 3.20. 16
2.30 At any time after receipt of the applicable Access Arrangement 17
Information under section 2.28 and before a decision is made to approve 18
revisions to an Access Arrangement the Relevant Regulator-- 19
(a) may, of its own volition, require the Service Provider to make 20
changes to the Access Arrangement Information if the Relevant 21
Regulator is not satisfied that the Access Arrangement 22
Information meets the requirements of sections 2.6 and 2.7; and 23
(b) must, if requested to do so by any person, consider whether the 24
Access Arrangement Information meets the requirements of 25
sections 2.6 and 2.7 and decide whether or not to require the 26
Service Provider to make changes to the Access Arrangement 27
Information accordingly. 28
If the Relevant Regulator requires the Service Provider to make 29
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changes to the Access Arrangement Information it must specify 1
the reasons for its decision and must specify a reasonable time by 2
which the proposed Access Arrangement Information that 3
rectifies the matters identified by the Relevant Regulator must be 4
resubmitted. The Relevant Regulator must not require 5
information to be included in the Access Arrangement 6
Information the release of which in the Relevant Regulator's 7
opinion could be unduly harmful to the legitimate business 8
interests of the Service Provider or a User or Prospective User. If 9
the Relevant Regulator requires the Service Provider to make 10
changes to the Access Arrangement Information, the Service 11
Provider must submit Access Arrangement Information 12
amended as required by the Relevant Regulator, by the date 13
specified by the Relevant Regulator. 14
2.31 After receiving a proposed revision to an Access Arrangement the 15
Relevant Regulator must-- 16
(a) inform each person known to the Relevant Regulator who the 17
Relevant Regulator believes has a sufficient interest in the matter 18
that it has received the proposed revision to the Access 19
Arrangement and Access Arrangement Information; and 20
(b) publish a notice in a national daily newspaper which at least-- 21
(i) describes the Covered Pipeline to which the proposed 22
revisions to the Access Arrangement relates; 23
(ii) states how copies of the revisions to the Access 24
Arrangement and the Access Arrangement Information may 25
be obtained; and 26
(iii) requests submissions by a date specified in the notice. 27
2.32 The Relevant Regulator must provide a copy of the proposed 28
revisions to the Access Arrangement and the Access Arrangement 29
Information to any person within 7 days after the person requests a copy 30
and pays any reasonable fee required by the Relevant Regulator. 31
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2.33 The Relevant Regulator may dispense with the requirement to 1
produce Access Arrangement Information in respect of proposed revisions 2
and may approve or not approve the proposed revisions without 3
consultation with, or receiving submissions from, persons other than the 4
Service Provider if-- 5
(a) the revisions have been proposed by the Service Provider other 6
than as required by the Access Arrangement; and 7
(b) the Relevant Regulator considers that the revisions proposed are 8
not material and will not result in changes to Reference Tariffs or 9
to the Services that are Reference Services. 10
2.34 The Relevant Regulator must consider any submissions received by 11
the date specified in the notice published under section 2.31(b) and it may 12
(but is not obliged) to consider any submissions received after that date. 13
2.35 After considering submissions received by the date specified in the 14
notice published under section 2.31(b) the Relevant Regulator must issue a 15
draft decision which either-- 16
(a) proposes to approve the revisions to the Access Arrangement; or 17
(b) proposes not to approve the revisions to the Access Arrangement 18
and provides reasons why the Relevant Regulator proposes not to 19
approve the revisions to the Access Arrangement (and, if the 20
revisions have been proposed by the Service Provider as required 21
by the Access Arrangement, states the amendments (or nature of 22
the amendments) which would have to be made to the revisions 23
in order for the Relevant Regulator to approve them). 24
2.36 The Relevant Regulator must-- 25
(a) provide a copy of its draft decision to the Service Provider, any 26
person who made a submission on the matter and any other 27
person who requests a copy; and 28
(b) request submissions on the draft decision from persons to whom 29
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it provides the draft decision by a date specified by the Relevant 1
Regulator. 2
2.37 The Relevant Regulator must consider any submissions received by 3
the date specified by the Relevant Regulator under section 2.36 and it may 4
(but is not obliged) to consider submissions received after that date. 5
2.38 After considering any submissions received by the date specified by 6
the Relevant Regulator under section 2.36, the Relevant Regulator must 7
issue a final decision which-- 8
(a) approves the revisions to the Access Arrangement; or 9
(b) does not approve the revisions to the Access Arrangement and, if 10
the revisions have been proposed by the Service Provider as 11
required by the Access Arrangement, states the amendments (or 12
nature of the amendments) which would have to be made to the 13
revisions in order for the Relevant Regulator to approve them and 14
the date by which the amended revisions to the Access 15
Arrangement must be resubmitted by the Service Provider; or 16
(c) approves amended revisions to the Access Arrangement 17
submitted by the Service Provider which the Relevant Regulator 18
is satisfied incorporate the amendments specified by the Relevant 19
Regulator in its draft decision. 20
2.39 The Relevant Regulator must provide a copy of its final decision to 21
the Service Provider, any person who made a submission on the matter and 22
other any person who requests a copy. 23
2.40 If the Relevant Regulator decides not to approve the revisions to the 24
Access Arrangement under section 2.38(b) the Service Provider must, if the 25
revisions it proposed were proposed as required by the Access 26
Arrangement, submit amended revisions to the Relevant Regulator by the 27
date specified by the Relevant Regulator under section 2.38(b). 28
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2.41 If the Service Provider submits amended revisions to the Access 1
Arrangement by the date specified by the Relevant Regulator under 2
section 2.38(b) which the Relevant Regulator is satisfied incorporate the 3
amendments specified by the Relevant Regulator in its final decision, the 4
Relevant Regulator must issue a final decision that approves the amended 5
revisions to the Access Arrangement. 6
2.42 If the Service Provider does not submit amended revisions to the 7
Access Arrangement by the date specified by the Relevant Regulator under 8
section 2.38(b) or submits amended revisions which the Relevant Regulator 9
is not satisfied incorporate the amendments specified by the Relevant 10
Regulator in its final decision, the Relevant Regulator must draft and 11
approve its own revisions to the Access Arrangement, instead of the 12
revisions proposed by the Service Provider. 13
2.43 The Relevant Regulator must issue a final decision under 14
section 2.38 (and sections 2.41 or 2.42 if applicable) within six months of 15
receiving proposed revisions to an Access Arrangement. The Relevant 16
Regulator must also ensure that-- 17
(a) there is a period of at least 28 days between the publication of a 18
notice under section 2.31(b) and the last day for submissions 19
specified in that notice; 20
(b) there is a period of at least 14 days between the publication of a 21
draft decision under section 2.36(b) and the last day for 22
submissions on the draft decision specified by the Relevant 23
Regulator; and 24
(c) there is a period of at least 14 days between the publication of a 25
final decision under section 2.38(b) and the date specified by the 26
Relevant Regulator as the last day for the Service Provider to 27
submit amended revisions to the Access Arrangement. 28
In all other respects the timing for the taking of each of the steps set 29
out in sections 2.30, 2.31 and 2.33 to 2.42 (inclusive) is a matter for 30
the Relevant Regulator to determine. 31
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2.44 The Relevant Regulator may increase the period of six months 1
specified in section 2.43 by periods of up to two months on one or more 2
occasions provided it publishes in a national newspaper notice of the 3
decision to increase the period. 4
2.45 If the Service Provider fails to submit revisions to an Access 5
Arrangement as required by the Access Arrangement, the Relevant 6
Regulator may draft and approve its own revisions to the Access 7
Arrangement. Before approving its own revisions to an Access 8
Arrangement under this section 2.45 the Relevant Regulator must-- 9
(a) prepare an information package which, to the extent practicable, 10
meets the requirements of sections 2.6 and 2.7; and 11
(b) follow the process set out in sections 2.31 to 2.37 to the extent 12
practicable as though the revisions to the Access Arrangement 13
drafted by the Relevant Regulator had been proposed by the 14
Service Provider and the information package drafted by the 15
Relevant Regulator had been Access Arrangement Information 16
proposed by the Service Provider. 17
2.46 The Relevant Regulator may approve proposed revisions to an 18
Access Arrangement only if it is satisfied the Access Arrangement as 19
revised would contain the elements and satisfy the principles set out in 20
sections 3.1 to 3.20. The Relevant Regulator must not refuse to approve 21
proposed revisions to the Access Arrangement solely for the reason that the 22
Access Arrangement as revised would not address a matter that sections 3.1 23
to 3.20 do not require an Access Arrangement to address. In assessing 24
proposed revisions to the Access Arrangement, the Relevant Regulator-- 25
(a) must take into account the factors described in section 2.24; and 26
(b) must take into account the provisions of the Access Arrangement. 27
2.47 The Relevant Regulator must not approve revisions to an Access 28
Arrangement (or draft and approve its own revisions to an Access 29
Arrangement) if a provision of the Access Arrangement as revised would, 30
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if applied, deprive any person of a contractual right in existence prior to the 1
date the revisions to the Access Arrangement were submitted (or were 2
required to be submitted), other than an Exclusivity Right which arose on or 3
after 30 March 1995. 4
2.48 A decision by the Relevant Regulator under section 2.42 or 2.45 is 5
subject to review by the Relevant Appeals Body under the Gas Pipelines 6
Access Law. Subject to the Gas Pipelines Access Law, revisions to an 7
Access Arrangement come into effect on the date specified by the Relevant 8
Regulator in its decision to approve the revisions (which date must not be 9
earlier than either a date 14 days after the day the decision was made or, 10
except where the Service Provider submitted the revisions voluntarily or 11
because a mechanism of a type referred to in section 3.18(a) included in the 12
Access Arrangement was triggered, the Revisions Commencement Date). 13
Changes to an Approved Access Arrangement between Reviews 14
2.49 An Access Arrangement which has become effective may only be 15
changed pursuant to this section 2. 16
Access Arrangement not to limit Access 17
2.50 For the avoidance of doubt, nothing (except for the Queuing Policy) 18
contained in an Access Arrangement (including the description of Services 19
in a Services Policy) limits-- 20
(a) the Services a Service Provider can agree to provide to a User or 21
Prospective User; 22
(b) the Services which can be the subject of a dispute under section 6; 23
(c) the terms and conditions a Service Provider can agree with a User 24
or Prospective User; or 25
(d) the terms and conditions which can be the subject of a dispute 26
under section 6. 27
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Previous Access Arrangements 1
2.51 If an Access Arrangement or Access Arrangement Information or 2
both with respect to a Covered Pipeline have been accepted by the Relevant 3
Regulator under the Gas Supply Act 1996 (NSW) prior to the 4
commencement of the Gas Pipeline Access Law in New South Wales a 5
Service Provider need not submit a proposed Access Arrangement in 6
accordance with section 2.2 with respect to the Covered Pipeline concerned. 7
In such circumstances the Access Arrangement or Access Arrangement 8
Information or both accepted under the Gas Supply Act 1996 (NSW) shall 9
be deemed to have been accepted under this Code and to be the Access 10
Arrangement or Access Arrangement Information with respect to the 11
relevant Covered Pipeline for all purposes under this Code. 12
2.52 A Service Provider need not submit a proposed Access 13
Arrangement or Access Arrangement Information in accordance with 14
section 2.2 with respect to a Covered Pipeline where-- 15
(a) before the date on which this Code takes effect, the Service 16
Provider (or, where the Service Provider does not at the relevant 17
time yet exist, a person able to represent and bind the future 18
Service Provider) has submitted a proposed Access Arrangement 19
with respect to the Covered Pipeline together with the applicable 20
Access Arrangement Information (if relevant) to the person who 21
is under this Code the Relevant Regulator for that Covered 22
Pipeline; and 23
(b) that Relevant Regulator, having-- 24
(i) in substance done the things it would have been required to 25
do in relation to the proposed Access Arrangement and the 26
applicable Access Arrangement Information submitted in 27
accordance with section 2.2; and 28
(ii) certified in writing that those things have been done, 29
has approved the proposed Access Arrangement and Access 30
Arrangement Information. 31
In such circumstances the proposed Access Arrangement and Access 32
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Arrangement Information shall be deemed to have been accepted 1
under this Code and to be the Access Arrangement and Access 2
Arrangement Information with respect to the relevant Covered Pipeline 3
for all purposes under this Code. 4
of an access arrangement 5
Content
3. An Access Arrangement must, as a minimum, include the elements 6
described in section 3 of the Code. Section 3 establishes the following 7
requirements-- 8
Services Policy - An Access Arrangement must include a policy 9
on the Services to be offered. The Services Policy must-- 10
· include a description of one or more Services which are 11
to be offered; 12
· where reasonable and practical, allow Prospective 13
Users to obtain a Service that includes only those 14
elements that the User wishes to be included in the 15
Service; and 16
· where reasonable and practical, allow Prospective 17
Users to obtain a separate tariff in regard to a separate 18
element of a Service. 19
Reference Tariff - An Access Arrangement must contain one or more 20
Reference Tariffs (the Relevant Regulator may require more than one 21
Reference Tariff when appropriate). A Reference Tariff operates as a 22
benchmark tariff for a specific Service, in effect giving the User a right 23
of access to the specific Service at the Reference Tariff, and giving the 24
Service Provider the right to levy the Reference Tariff for that Service. 25
Ordinarily a Reference Tariff must be set in accordance with the 26
principles set out in section 8. 27
As an alternative it is possible to have Reference Tariffs for a new 28
Pipeline set by a competitive tender process. Any person may conduct 29
a competitive tender to determine Reference Tariffs for a new Pipeline 30
(and a review date for those Reference Tariffs). The person conducting 31
a tender must first obtain the approval of the Relevant Regulator for the 32
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tender process proposed. Before granting approval the Relevant 1
Regulator must be satisfied, amongst other things, that the successful 2
tenderer will be selected principally on the basis that the tender will 3
deliver the lowest sustainable tariffs to users generally over the life of 4
the proposed Pipeline. 5
After the tender process has been conducted and the successful tender 6
selected, the person conducting the tender must submit the outcome of 7
the process to the Relevant Regulator for the Relevant Regulator's final 8
approval. Before granting final approval the Relevant Regulator must 9
be satisfied, amongst other things, that the tender process proposed 10
was followed and that the successful tenderer was selected in 11
accordance with the selection criteria set out in the tender approval 12
request. Once final approval is granted the Reference Tariffs proposed 13
by the successful tenderer will become the Reference Tariffs for the 14
proposed Pipeline. 15
It is intended that by using this process, Reference Tariffs will have 16
been set in a competitive market and will therefore naturally achieve 17
the objectives in section 8.1. 18
Terms and Conditions - An Access Arrangement must include the 19
terms and conditions on which the Service Provider will supply each 20
Reference Service. 21
Capacity Management Policy - An Access Arrangement must state 22
whether the Covered Pipeline is a Contract Carriage Pipeline or a 23
Market Carriage Pipeline. 24
Trading Policy - An Access Arrangement for a Contract Carriage 25
Pipeline must include a policy on the trading of capacity. The Trading 26
Policy must, amongst other things, allow a User to transfer capacity-- 27
· without the Service Provider's consent, if the contract 28
between the User and the Service Provider is unaltered by 29
the Transfer; and 30
· with the Service Provider's consent, in any other case. 31
Consent may be withheld only on reasonable commercial or 32
technical grounds. 33
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Queuing Policy - An Access Arrangement must include a policy for 1
defining the priority that Prospective Users have to negotiate for 2
specific Capacity (a Queuing Policy). 3
Extensions/Expansions Policy - An Access Arrangement must 4
include a policy setting out a method for determining whether an 5
extension or expansion to the Covered Pipeline is or is not to be treated 6
as part of the Covered Pipeline for the purposes of the Code. 7
Review Date - An Access Arrangement must include a date on or by 8
which revisions to the Access Arrangement must be submitted and a 9
date on which the revised Access Arrangement is intended to 10
commence. 11
Services to be Offered 12
3.1 An Access Arrangement must include a policy on the Service or 13
Services to be offered (a Services Policy). 14
3.2 The Services Policy must comply with the following principles-- 15
(a) The Access Arrangement must include a description of one or 16
more Services that the Service Provider will make available to 17
Users or Prospective Users, including-- 18
(i) one or more Services that are likely to be sought by a 19
significant part of the market; and 20
(ii) any Service or Services which in the Relevant Regulator's 21
opinion should be included in the Services Policy. 22
(b) To the extent practicable and reasonable, a User or Prospective 23
User must be able to obtain a Service which includes only those 24
elements that the User or Prospective User wishes to be included 25
in the Service. 26
(c) To the extent practicable and reasonable, a Service Provider must 27
provide a separate Tariff for an element of a Service if this is 28
requested by a User or Prospective User. 29
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Reference Tariffs and Reference Tariff Policy 1
3.3 An Access Arrangement must include a Reference Tariff for-- 2
(a) at least one Service that is likely to be sought by a significant part 3
of the market; and 4
(b) each Service that is likely to be sought by a significant part of the 5
market and for which the Relevant Regulator considers a 6
Reference Tariff should be included. 7
3.4 Unless a Reference Tariff has been determined through a competitive 8
tender process as outlined in sections 3.21 to 3.36, an Access Arrangement 9
and any Reference Tariff included in an Access Arrangement must, in the 10
Relevant Regulator's opinion, comply with the Reference Tariff Principles 11
described in section 8. 12
3.5 An Access Arrangement must also include a policy describing the 13
principles that are to be used to determine a Reference Tariff (a Reference 14
Tariff Policy). A Reference Tariff Policy must, in the Relevant Regulator's 15
opinion, comply with the Reference Tariff Principles described in section 8. 16
Terms and Conditions 17
3.6 An Access Arrangement must include the terms and conditions on 18
which the Service Provider will supply each Reference Service. The terms 19
and conditions included must, in the Relevant Regulator's opinion, be 20
reasonable. 21
Capacity Management Policy 22
3.7 An Access Arrangement must include a statement (a Capacity 23
Management Policy) that the Covered Pipeline is either-- 24
(a) a Contract Carriage Pipeline; or 25
(b) a Market Carriage Pipeline. 26
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3.8 The Relevant Regulator must not accept an Access Arrangement 1
which states that the Covered Pipeline is a Market Carriage Pipeline unless 2
the Relevant Minister of each Scheme Participant in whose Jurisdictional 3
Area the Pipeline is wholly or partly located has given a notice to the 4
Relevant Regulator permitting the Covered Pipeline to be a Market Carriage 5
Pipeline. 6
Trading Policy 7
3.9 The Access Arrangement for a Covered Pipeline which is described 8
in the Access Arrangement as a Contract Carriage Pipeline must include a 9
policy that explains the rights of a User to trade its right to obtain a Service 10
to another person (a Trading Policy). 11
3.10 The Trading Policy must comply with the following principles-- 12
(a) A User must be permitted to transfer or assign all or part of its 13
Contracted Capacity without the consent of the Service Provider 14
concerned if-- 15
(i) the User's obligations under the contract with the Service 16
Provider remain in full force and effect after the transfer or 17
assignment; and 18
(ii) the terms of the contract with the Service Provider are not 19
altered as a result of the transfer or assignment (a Bare 20
Transfer). 21
In these circumstances the Trading Policy may require that the 22
transferee notify the Service Provider prior to utilising the portion 23
of the Contracted Capacity subject to the Bare Transfer and of the 24
nature of the Contracted Capacity subject to the Bare Transfer, but 25
the Trading Policy must not require any other details regarding 26
the transaction to be provided to the Service Provider. 27
(b) Where commercially and technically reasonable, a User must be 28
permitted to transfer or assign all or part of its Contracted 29
Capacity other than by way of a Bare Transfer with the prior 30
consent of the Service Provider. The Service Provider may 31
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withhold its consent only on reasonable commercial or technical 1
grounds and may make its consent subject to conditions only if 2
they are reasonable on commercial and technical grounds. The 3
Trading Policy may specify conditions in advance under which 4
consent will or will not be given and conditions that must be 5
adhered to as a condition of consent being given. 6
(c) Where commercially and technically reasonable, a User must be 7
permitted to change the Delivery Point or Receipt Point from that 8
specified in any contract for the relevant Service with the prior 9
written consent of the Service Provider. The Service Provider 10
may withhold its consent only on reasonable commercial or 11
technical grounds and may make its consent subject to conditions 12
only if they are reasonable on commercial and technical grounds. 13
The Trading Policy may specify conditions in advance under 14
which consent will or will not be given and conditions that must 15
be adhered to as a condition of consent being given. 16
3.11 Examples of things that would be reasonable for the purposes of 17
section 3.10(b) and (c) are-- 18
(a) the Service Provider refusing to agree to a User's request to 19
change its Delivery Point where a reduction in the amount of the 20
Service provided to the original Delivery Point will not result in a 21
corresponding increase in the Service Provider's ability to provide 22
that Service to the alternative Delivery Point; and 23
(b) the Service Provider specifying that, as a condition of its 24
agreement to a change in the Delivery Point or Receipt Point, the 25
Service Provider must receive the same amount of revenue it 26
would have received before the change. 27
Queuing Policy 28
3.12 An Access Arrangement must include a policy for determining the 29
priority that a Prospective User has, as against any other Prospective User, 30
to obtain access to Spare Capacity and Developable Capacity (and to seek 31
dispute resolution under section 6) where the provision of the Service 32
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sought by that Prospective User may impede the ability of the Service 1
Provider to provide a Service that is sought or which may be sought by 2
another Prospective User (a Queuing Policy). 3
3.13 The Queuing Policy must-- 4
(a) set out sufficient detail to enable Users and Prospective Users to 5
understand in advance how the Queuing Policy will operate; 6
(b) accommodate, to the extent reasonably possible, the legitimate 7
business interests of the Service Provider and of Users and 8
Prospective Users; and 9
(c) generate, to the extent reasonably possible, economically efficient 10
outcomes. 11
3.14 The Relevant Regulator may require the Queuing Policy to deal with 12
any other matter the Relevant Regulator thinks fit taking into account the 13
matters listed in section 2.24. 14
3.15 Notwithstanding anything else contained in this Code, the Service 15
Provider must comply with the Queuing Policy specified in the Service 16
Provider's Access Arrangement. 17
Extensions/Expansions Policy 18
3.16 An Access Arrangement must include a policy (an 19
Extensions/Expansions Policy) which sets out-- 20
(a) the method to be applied to determine whether any extension to, 21
or expansion of the Capacity of, the Covered Pipeline-- 22
(i) should be treated as part of the Covered Pipeline for all 23
purposes under the Code; or 24
(ii) should not be treated as part of the Covered Pipeline for any 25
purpose under the Code; 26
(for example, the Extensions/Expansions Policy could provide 27
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that the Service Provider may, with the Relevant Regulator's 1
consent, elect at some point in time whether or not an extension 2
or expansion will be part of the Covered Pipeline or will not be 3
part of the Covered Pipeline); 4
(b) specify how any extension or expansion which is to be treated as 5
part of the Covered Pipeline will affect Reference Tariffs (for 6
example, the Extensions/Expansions Policy could provide-- 7
(i) Reference Tariffs will remain unchanged but a Surcharge 8
may be levied on Incremental Users where permitted by 9
sections 8.25 and 8.26; or 10
(ii) specify that a review will be triggered and that the Service 11
Provider must submit revisions to the Access Arrangement 12
pursuant to section 2.28); 13
(c) if the Service Provider agrees to fund New Facilities if certain 14
conditions are met, a description of those New Facilities and the 15
conditions on which the Service Provider will fund the New 16
Facilities. 17
The Relevant Regulator may not require the Extensions/Expansions 18
Policy to state that the Service Provider will fund New Facilities unless 19
the Service Provider agrees. 20
Review and Expiry of the Access Arrangement 21
3.17 An Access Arrangement must include-- 22
(a) a date upon which the Service Provider must submit revisions to 23
the Access Arrangement (a Revisions Submission Date); and 24
(b) a date upon which the next revisions to the Access Arrangement 25
are intended to commence (a Revisions Commencement Date). 26
In approving the Revisions Submissions Date and Revisions 27
Commencement Date, the Relevant Regulator must have regard to the 28
objectives in section 8.1, and may in making its decision on an Access 29
Arrangement (or revisions to an Access Arrangement), if it considers 30
it necessary having had regard to the objectives in section 8.1-- 31
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(i) require an earlier or later Revisions Submission Date and 1
Revisions Commencement Date than proposed by the 2
Service Provider in its proposed Access Arrangement; 3
(ii) require that specific major events be defined that trigger an 4
obligation on the Service Provider to submit revisions prior 5
to the Revisions Submission Date. 6
3.18 An Access Arrangement Period accepted by the Relevant Regulator 7
may be of any length; however, if the Access Arrangement Period is more 8
than five years, the Relevant Regulator must not approve the Access 9
Arrangement without considering whether mechanisms should be included 10
to address the risk of forecasts on which the terms of the Access 11
Arrangement were based and approved proving incorrect. These 12
mechanisms may include-- 13
(a) requiring the Service Provider to submit revisions to the Access 14
Arrangement prior to the Revisions Submission Date if certain 15
events occur, for example-- 16
(i) if a Service Provider's profits derived from a Covered 17
Pipeline are outside a specified range or if the value of 18
Services reserved in contracts with Users are outside a 19
specified range; 20
(ii) if the type or mix of Services provided by means of a 21
Covered Pipeline changes in a certain way; or 22
(b) a Service Provider returning some or all revenue or profits in 23
excess of a certain amount to Users, whether in the form of lower 24
charges or some other form. 25
Where a mechanism is included in an Access Arrangement pursuant 26
to section 3.18(a), the Relevant Regulator must investigate no less 27
frequently than once every five years whether a review event identified 28
in the mechanism has occurred. 29
3.19 Nothing in section 3.18 shall be taken to imply that the Relevant 30
Regulator may not approve an Access Arrangement Period longer than 31
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5 years if the Relevant Regulator considers this appropriate, having regard 1
to the objectives of section 8.1. 2
3.20 An Access Arrangement submitted under section 2.3 may include a 3
date at which time the Access Arrangement will expire. If an Access 4
Arrangement submitted under section 2.3 expires, the Covered Pipeline the 5
subject of the Access Arrangement ceases to be Covered on the expiry date. 6
The Service Provider must notify the Code Registrar if a Pipeline ceases to 7
be Covered under this section and the Code Registrar must update the 8
Public Register accordingly. 9
Determining Reference Tariffs through a Competitive Tender Process 10
3.21 Any person who wishes to conduct a tender in relation to a Pipeline 11
that has not been built may make an application to the Relevant Regulator (a 12
Tender Approval Request) requesting the Relevant Regulator to approve 13
the use of a tender process to determine-- 14
(a) Reference Tariffs for certain Reference Services to be provided by 15
means of the proposed Pipeline; 16
(b) other specified items which are required to be included in an 17
Access Arrangement and which are directly relevant to the 18
determination of the Reference Tariffs concerned (including, 19
without limitation, the Revisions Submission Date and Revisions 20
Commencement Date). 21
3.22 A Tender Approval Request must-- 22
(a) nominate the location or locations from where the proposed 23
Pipeline will take gas and the location or locations of the gas 24
market to which the proposed Pipeline will deliver gas; 25
(b) detail the process (including procedures and rules) proposed to be 26
followed in conducting the tender process, including the 27
minimum requirements which a tender must meet before it will 28
be accepted as a conforming tender (for example, the date by 29
which tenders must be received); 30
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(c) detail the selection criteria to be applied in selecting the successful 1
tender; and 2
(d) specify a possible Revisions Commencement Date or a series of 3
possible Revisions Commencement Dates to be established for 4
the proposed Pipeline, in relation to which tenderers are asked to 5
submit tenders and propose Reference Tariffs. 6
The specification of a Revisions Commencement Date in a Tender 7
Approval Request and a decision to approve such a Tender Approval 8
Request do not limit in any way the Relevant Regulator's discretion to 9
approve or not approve a Revisions Commencement Date pursuant to 10
section 3.33(d). 11
3.23 Subject to section 3.27, within 14 days after receiving a Tender 12
Approval Request which conforms with section 3.22 the Relevant 13
Regulator must-- 14
(a) inform each person known to the Relevant Regulator who the 15
Relevant Regulator believes has a sufficient interest in the matter 16
that it has received a Tender Approval Request; and 17
(b) publish a notice in a national daily newspaper which at least-- 18
(i) describes the proposed Pipeline to which the Tender 19
Approval Request relates; 20
(ii) states how copies of the Tender Approval Request can be 21
obtained; and 22
(iii) requests submissions by a date specified in the notice (not 23
being a date earlier than 14 days, or later than 28 days, after 24
the date of the notice). 25
3.24 The Relevant Regulator must provide a copy of those parts of the 26
Tender Approval Request that it has not agreed to keep confidential to any 27
person within seven days after the person requests a copy and pays any 28
reasonable fee required by the Relevant Regulator. 29
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3.25 Within 28 days of the date specified in the notice published under 1
section 3.23(b), the Relevant Regulator must make a decision in relation to a 2
Tender Approval Request that-- 3
(a) approves the Tender Approval Request; or 4
(b) does not approve the Tender Approval Request. 5
In making a decision under this section 3.25 the Relevant Regulator 6
must consider any submissions received within the time specified in 7
the notice published under section 3.23(b) and may (but is not obliged 8
to) consider any submissions received after the time. 9
3.26 The Relevant Regulator may reject a Tender Approval Request 10
without further consideration if it is of the opinion that the application has 11
been made on trivial or vexatious grounds. 12
3.27 The Relevant Regulator may at any time decide not to approve a 13
Tender Approval Request if it is of the opinion that the person who 14
submitted the Tender Approval Request may have, or may appear to have, a 15
conflict of interest if it conducted the tender process. The Relevant 16
Regulator may decide not to approve a Tender Approval Request under this 17
section 3.27 without conducting the public consultation required under 18
section 3.23. If the Relevant Regulator decides not to approve a Tender 19
Approval Request under this section 3.27 on conflict of interest grounds, 20
another person may submit a new Tender Approval Request under 21
section 3.21 in relation to the same proposed Pipeline. 22
3.28 The Relevant Regulator must decide to approve a Tender Approval 23
Request if satisfied of all of the following and must decide not to approve a 24
Tender Approval Request if not satisfied of all of the following-- 25
(a) (new pipeline): that the proposed Pipeline will be a new 26
Pipeline; 27
(b) (public interest and Reference Tariff objectives): that using 28
the tender process as outlined in the Tender Approval Request to 29
determine Reference Tariffs is in the public interest and is an 30
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appropriate mechanism in the circumstances for ensuring that 1
Reference Tariffs achieve the objectives in section 8.1; 2
(c) (tender process will be competitive): that the number and 3
character of tenders likely to be received would be such as to 4
ensure a competitive outcome; and 5
(d) (exclusion of certain tenders): that the proposed procedures and 6
rules to be followed in conducting the proposed tender will result 7
in a tender being excluded from consideration if it-- 8
(i) does not include a statement of the Reference Tariffs the 9
tenderer proposes and the Reference Services to which those 10
Reference Tariffs would apply; 11
(ii) does not include a policy on whether the additional revenue 12
which would result if the volume of gas actually transported 13
by the proposed Pipeline exceeds a certain volume will either 14
be retained by the Service Provider or returned in whole or 15
in part to Users in the form of lower charges or some other 16
form (an Additional Revenue Policy); 17
(iii) does not provide that the residual value of the proposed 18
Pipeline after the expiration of the initial Reference Tariff 19
will be based on depreciation over the Pipeline's economic 20
life; 21
(iv) limits or purports to limit the Services to which access might 22
be sought under this Code; or 23
(v) otherwise includes elements inconsistent with this Code 24
except as contemplated by section 3.34; 25
(e) (consideration of all conforming tenders): that the proposed 26
procedures and rules to be followed in conducting the proposed 27
tender will result in no tender being excluded from consideration 28
except in the circumstances outlined in paragraph (d) or if the 29
tender does not conform to other reasonable requirements in the 30
request for tenders or does not meet reasonable prudential and 31
technical requirements; 32
(f) (selection criteria): that the selection criteria to be applied in 33
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conducting the proposed tender-- 1
(i) will result in the successful tender being selected principally 2
on the basis that the tender will deliver the lowest sustainable 3
tariffs (including but not limited to Reference Tariffs) to 4
Users generally over the economic life of the proposed 5
Pipeline; and 6
(ii) are likely to result in Reference Tariffs that meet the criteria 7
specified in section 3.33(c); 8
(g) (determination of items with the Reference Tariffs): that the 9
tender documents specify which items required to be included in 10
an Access Arrangement other than Reference Tariffs will be 11
determined by the tender and that those items are directly relevant 12
to the determination of Reference Tariffs; 13
(h) (configuration of Pipeline not limited): that the tender 14
documents published by the person conducting the tender will not 15
specify the configuration of the proposed Pipeline, including the 16
areas the proposed Pipeline will service, pipeline dimensions, 17
level of compression or other technical specifications, unless the 18
Relevant Regulator is satisfied it would be appropriate to do so; 19
(i) (other documents): that any document supporting or relating to 20
the tender process is consistent with this Code and does not 21
purport to limit-- 22
(i) the Services which the Service Provider may provide or to 23
which access may be sought under this Code; 24
(ii) the configuration of the proposed Pipeline including the 25
areas the Proposed Pipeline will service, pipeline 26
dimensions, level of compression and other technical 27
specifications unless the Relevant Regulator is satisfied it 28
would be appropriate to do so; or 29
(iii) the construction or operation of other Pipelines which could 30
deliver gas to the same gas market as the proposed Pipeline. 31
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3.29 If the Relevant Regulator has made a decision under section 3.25 1
approving a Tender Approval Request and a tender process has been 2
conducted, the person who conducted the tender process may apply in 3
writing to the Relevant Regulator for final approval under section 3.32 (a 4
Final Approval Request). A Final Approval Request must include a 5
statement of which tender was selected and the reasons for that selection 6
based on the selection criteria. 7
3.30 After the successful tenderer has been selected, the Relevant 8
Regulator may permit the person who conducted the tender process and the 9
successful tenderer to agree to changes to the terms of the tender which 10
result in minor changes to the Reference Tariffs proposed in the tender, 11
provided the Relevant Regulator is satisfied the changes are consistent with 12
the requirements in section 3.28(a) to (i). The amended Reference Tariffs 13
shall be considered to be the Reference Tariffs determined in accordance 14
with the tender process for the purposes of the Relevant Regulator making a 15
decision to approve or not approve a Final Approval Request. 16
3.31 The Relevant Regulator may before it makes a decision under 17
section 3.32 require the person who submitted the Final Approval Request 18
to provide the Relevant Regulator with any information or assistance the 19
Relevant Regulator reasonably requires. 20
3.32 If the Relevant Regulator receives a Final Approval Request, the 21
Relevant Regulator must within 28 days of receiving all information it 22
requires under section 3.31 make a decision that-- 23
(a) approves the Final Approval Request; or 24
(b) does not approve the Final Approval Request. 25
3.33 The Relevant Regulator must decide to approve the Final Approval 26
Request if satisfied of all of the following and must decide not to approve 27
the Final Approval Request if not satisfied of all of the following-- 28
(a) that the successful tender was selected in accordance with the 29
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selection criteria specified in the Tender Approval Request 1
approved by the Relevant Regulator under section 3.25; 2
(b) that the tender process was conducted in accordance with the 3
procedures and rules specified in the Tender Approval Request 4
approved by the Relevant Regulator under section 3.25; 5
(c) that the Reference Tariffs determined in accordance with the 6
tender process-- 7
(i) achieve the objectives in section 8.1; and 8
(ii) contain or reflect an allocation of costs between Services and 9
an allocation of costs between Users which is fair and 10
reasonable; 11
(d) that the Revisions Commencement Date in the Access 12
Arrangement for the proposed Pipeline is not later than 15 years 13
after the Access Arrangement for the proposed Pipeline is 14
approved or such later date as the Relevant Regulator considers 15
appropriate for the proposed Pipeline on the basis of the proposed 16
tariffs (including but not limited to Reference Tariffs); and 17
(e) that the successful tenderer's Access Arrangement for the 18
proposed Pipeline will contain an Additional Revenue Policy that 19
is appropriate for the proposed Pipeline on the basis of the 20
proposed tariffs (including but not limited to Reference Tariffs). 21
3.34 If the Relevant Regulator makes a decision under section 3.32 22
approving a Final Approval Request then the proposed Pipeline concerned 23
shall be a Covered Pipeline from the time of that decision. In any Access 24
Arrangement for that Covered Pipeline-- 25
(a) for each Reference Service for which a Reference Tariff was 26
determined by the tender process, the Reference Tariff shall be the 27
Reference Tariff that was determined in accordance with the 28
tender process and approved by the Relevant Regulator; and 29
(b) each other item required to be included in an Access 30
Arrangement, which the tender documents specified would be 31
determined by the tender process, shall be as determined in 32
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accordance with the tender process and approved by the Relevant 1
Regulator. 2
Nothing in this section 3.34 limits the Reference Services for which 3
the Relevant Regulator can require a Reference Tariff to be established. 4
3.35 If the Relevant Regulator makes a decision under section 3.32 5
approving a Final Approval Request, then the Access Arrangement 6
Information for that Covered Pipeline need not contain the information 7
required by sections 2.6 and 2.7, or any other information, in respect of 8
Reference Tariffs determined pursuant to section 3.34(a). 9
3.36 Nothing in section 3.34 limits or affects the operation of any 10
provision of this Code except the provisions of section 3 relating to the 11
content of an Access Arrangement to the extent that a Reference Tariff or 12
other item included in the Access Arrangement may, under section 3.34, be 13
determined in accordance with the tender process. 14
fencing arrangements 15
Ring
4. This section of the Code requires a Service Provider to establish 16
arrangements to segregate or "ring fence" its business of providing Services 17
using a Covered Pipeline. As a minimum, a Service Provider must-- 18
· be a legal entity; 19
· not carry on a Related Business (essentially a business of 20
producing, purchasing or selling Natural Gas); 21
· establish and maintain separate accounts for the activity that is the 22
subject of each Access Arrangement; 23
· establish and maintain a consolidated set of accounts for all the 24
activities undertaken by the Service Provider; 25
· allocate costs shared between different accounts in a fair and 26
reasonable manner; 27
· ensure that Confidential Information provided by a User or a 28
Prospective User is used only for the purposes for which it was 29
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provided and is not disclosed without the User or Prospective 1
User's consent; 2
· ensure that Confidential Information obtained by a Service 3
Provider which might reasonably be expected to materially affect 4
the commercial interests of a User or Prospective User is not 5
disclosed to any other person without the permission of the User 6
or Prospective User to whom the information pertains; 7
· ensure that Marketing Staff of a Service Provider are not also 8
working for an Associate that takes part in a Related Business; 9
and 10
· ensure that Marketing Staff of an Associate that takes part in a 11
Related Business are not also working for the Service Provider. 12
In addition to these minimum requirements, the Relevant Regulator 13
may require the Service Provider to meet additional ring fencing 14
obligations. The Relevant Regulator also has a discretion to dispense 15
with some of the ring fencing obligations. The Gas Pipelines Access 16
Law provides a mechanism for review by the Relevant Appeals Body 17
of a decision by the Relevant Regulator in relation to imposing 18
additional ring fencing obligations or waiving minimum ring fencing 19
obligations. 20
This section of the Code also requires the Service Provider to establish 21
procedures to ensure compliance with the ring fencing obligations. 22
Ring Fencing Minimum Obligations 23
4.1 A person who is a Service Provider in respect of a Covered Pipeline 24
(regardless of whether they are also a Service Provider in respect of a 25
Pipeline that is not Covered) must comply with the following (but in the 26
case of paragraphs (a), (b), (h) and (i), as from the date that is 6 months 27
after the relevant Pipeline became Covered)-- 28
(a) be a legal entity incorporated pursuant to the Corporations Law, a 29
statutory corporation, a government or an entity established by 30
royal charter; 31
(b) not carry on a Related Business; 32
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(c) establish and maintain a separate set of accounts in respect of the 1
Services provided by each Covered Pipeline in respect of which 2
the person is a Service Provider; 3
(d) establish and maintain a separate consolidated set of accounts in 4
respect of the entire business of the Service Provider; 5
(e) allocate any costs that are shared between an activity that is 6
covered by a set of accounts described in section 4.1(c) and any 7
other activity according to a methodology for allocating costs that 8
is consistent with the principles in section 8.1 and is otherwise 9
fair and reasonable; 10
(f) ensure that all Confidential Information provided by a User or 11
Prospective User is used only for the purpose for which that 12
information was provided and that such information is not 13
disclosed to any other person without the approval of the User or 14
Prospective User who provided it, except-- 15
(i) if the Confidential Information comes into the public domain 16
otherwise than by disclosure by the Service Provider; or 17
(ii) to comply with any law, any legally binding order of a court, 18
government, government or semi-government authority or 19
administrative body or the listing rules of any relevant 20
recognised Stock Exchange; 21
(g) ensure that all Confidential Information obtained by the Service 22
Provider or by its servants, consultants, independent contractors 23
or agents in the course of conducting its business and which 24
might reasonably be expected to affect materially the commercial 25
interests of a User or Prospective User is not disclosed to any 26
other person without the approval of the User or Prospective User 27
to whom that information pertains, except-- 28
(i) if the Confidential Information comes into the public domain 29
otherwise than by disclosure by the Service Provider; or 30
(ii) to comply with any law, any legally binding order of a court, 31
government, government or semi-government authority or 32
administrative body or the listing rules of any relevant 33
recognised Stock Exchange; 34
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(h) ensure that its Marketing Staff are not also servants, consultants, 1
independent contractors or agents of an Associate that takes part 2
in a Related Business and, in the event that they become or are 3
found to be involved in a Related Business contrary to this 4
section, must procure their immediate removal from its 5
Marketing Staff; and 6
(i) ensure that none of its servants, consultants, independent 7
contractors or agents are Marketing Staff of an Associate that 8
takes part in a Related Business and, in the event that any 9
servants, consultants, independent contractors or agents are found 10
to be the Marketing Staff of such an Associate contrary to this 11
section, must procure their immediate removal from their 12
position with the Service Provider. 13
4.2 In complying with sections 4.1(c), (d) and (e) a Service Provider 14
must-- 15
(a) if the Relevant Regulator has published general accounting 16
guidelines for Service Providers which apply to the accounts 17
being prepared, comply with those guidelines; or 18
(b) if the Relevant Regulator has not published such guidelines, 19
comply with guidelines prepared by the Service Provider and 20
approved by the Relevant Regulator or, if there are no such 21
guidelines, comply with such guidelines (if any) as the Relevant 22
Regulator advises the Service Provider apply to that Service 23
Provider from time to time. 24
Such guidelines may, amongst other things, require the accounts to 25
contain sufficient information, and to be presented in such a manner, 26
as would enable the verification by the Relevant Regulator of the 27
calculation of the Reference Tariffs for Covered Pipelines. 28
Additional Ring Fencing Obligations 29
4.3 The Relevant Regulator may by notice to a Service Provider require 30
the Service Provider to comply with obligations in addition to those 31
contained in section 4.1, having regard to the following objectives-- 32
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(a) ensuring that the Service Provider does not have regard to the 1
interests of an Associate in priority to the interests of other Users 2
or Prospective Users with respect to the supply of Services 3
(except as provided for on a basis that deals fairly between all 4
Users and Prospective Users under an applicable Queuing 5
Policy); and 6
(b) ensuring that ring fencing obligations do not impose unreasonable 7
compliance costs on the Service Provider or its Associates. 8
The Service Provider must comply with any additional obligations 9
imposed under this section 4.3. 10
4.4 Without limiting the additional obligations that may be imposed 11
under section 4.3, the Relevant Regulator may require that-- 12
(a) the Service Provider ensure its Additional Staff are not also 13
servants, consultants, independent contractors or agents of an 14
Associate that takes part in a Related Business and, in the event 15
that they become or are found to be involved in a Related 16
Business, ensure their immediate removal from the Additional 17
Staff; 18
(b) at least one director of the Service Provider is not also a director 19
of a company (whether or not an Associate) that takes part in a 20
Related Business or is or may become a User; and 21
(c) the electronic, physical and procedural security measures 22
employed in respect of the offices of the Service Provider and of 23
all offices of its Associates are satisfactory to the Relevant 24
Regulator. 25
The examples given in this section 4.4 shall not be construed as 26
limiting the types of action a Service Provider may have to take in 27
order to comply with section 4.1. 28
Procedures for Adding Ring Fencing Obligations 29
4.5 The Relevant Regulator must before issuing a notice under 30
section 4.3-- 31
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(a) inform each person known to the Relevant Regulator who the 1
Relevant Regulator believes has a sufficient interest in the matter 2
that it is considering issuing a notice under section 4.3 with 3
respect to a particular Service Provider; and 4
(b) publish a notice in a national daily newspaper which at least-- 5
(i) states who the Service Provider concerned is and the 6
obligations the Relevant Regulator is considering adding; 7
(ii) requests submissions by a date specified in the notice (not 8
being a date earlier than 14 days after the date of the notice). 9
4.6 The Relevant Regulator must consider any submissions received by 10
the date specified in the notice published under section 4.5(b) and may (but 11
is not obliged) to consider any submissions received after that date. 12
4.7 Within 14 days after the last day for submissions specified in the 13
notice published under section 4.5(b) the Relevant Regulator must issue a 14
draft decision stating whether or not it intends to issue a notice under 15
section 4.3. 16
4.8 The Relevant Regulator must-- 17
(a) provide a copy of its draft decision to the Service Provider, any 18
person who made a submission on the matter and any other 19
person who requests a copy; and 20
(b) request submissions from persons to whom it provides the draft 21
decision by a specified date (not being a date earlier than 14 days 22
after the date the draft decision was issued). 23
4.9 The Relevant Regulator must consider any submissions it receives by 24
the date specified by the Relevant Regulator under section 4.8 and it may 25
(but is not obliged) to consider any submissions received after that date. 26
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4.10 Within 21 days after the last day for submissions on the draft 1
decision specified by the Relevant Regulator, the Relevant Regulator must 2
issue a final decision stating whether or not it will issue a notice under 3
section 4.3. 4
4.11 Subject to the Gas Pipelines Access Law, a notice under section 4.3 5
has effect 14 days after the notice is given to the Service Provider or such 6
later date as the Relevant Regulator specifies in the notice. A Service 7
Provider may under the Gas Pipelines Access Law have a decision to issue 8
a notice under section 4.3 reviewed by the Relevant Appeals Body. 9
Compliance Procedures and Compliance Reporting 10
4.12 A Service Provider must establish and maintain appropriate internal 11
procedures to ensure it complies with its obligations under this section 4. 12
The Relevant Regulator may require the Service Provider to demonstrate the 13
adequacy of these procedures upon reasonable notice. However, any 14
statement made or assurance given by the Relevant Regulator concerning 15
the adequacy of the Service Provider's compliance procedures does not 16
affect the Service Provider's obligations under this section 4. 17
4.13 A Service Provider must provide a report to the Relevant Regulator, 18
at reasonable intervals determined by the Relevant Regulator, describing the 19
measures taken by the Service Provider to ensure compliance with its 20
obligations under this section 4, and providing an accurate assessment of 21
the effect of those measures. 22
4.14 A Service Provider must provide a report of any breach of any of its 23
obligations under this section 4 to the Relevant Regulator immediately upon 24
becoming aware that the breach has occurred. 25
Waiver of Ring Fencing Obligations 26
4.15 The Relevant Regulator may by notice to a Service Provider waive 27
any of a Service Provider's obligations under-- 28
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(a) section 4.1(b) where the Relevant Regulator is satisfied that-- 1
(i) either the Covered Pipeline is not a significant part of the 2
Pipeline system in any State or Territory in which it is 3
located or there is more than one Service Provider in relation 4
to the Covered Pipeline and the Service Provider concerned 5
does not have a significant interest in the Covered Pipeline 6
and does not actively participate in the management or 7
operation of the Covered Pipeline; and 8
(ii) the administrative costs to the Service Provider and its 9
Associates of complying with that obligation outweighs any 10
public benefit arising from the Service Provider meeting the 11
obligation, taking into account arrangements put in place by 12
the Service Provider (if any) to ensure that Confidential 13
Information the subject of sections 4.1(f) and (g) is not 14
disclosed to the Service Provider or is not disclosed to the 15
servants, consultants, independent contractors or agents of 16
the Service Provider who take part in a Related Business; 17
and 18
(iii) an arrangement has been established between the Service 19
Provider and the Relevant Regulator which the Relevant 20
Regulator is satisfied replicates the manner in which 21
section 7.1 would operate if the Service Provider complied 22
with section 4.1(b); and 23
(b) sections 4.1(h) and (i) where the Relevant Regulator is satisfied 24
that the administrative costs to the Service Provider and its 25
Associates of complying with that obligation outweigh any public 26
benefit arising from the Service Provider meeting the obligation. 27
Procedures for Waiving Ring Fencing Obligations 28
4.16 A Service Provider may apply to the Relevant Regulator requesting 29
the Relevant Regulator to issue a notice under section 4.15. 30
4.17 When the Relevant Regulator receives an application under 31
section 4.16 the Relevant Regulator must-- 32
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(a) if it considers that the application has been made on trivial or 1
vexatious grounds, reject the application without further 2
consideration; or 3
(b) in all other cases within 14 days after receipt of the application-- 4
(i) inform each person known to the Relevant Regulator who 5
the Relevant Regulator believes has a sufficient interest in the 6
matter that it has received the application; and 7
(ii) publish a notice in a national daily newspaper which at 8
least-- 9
(A) states who the Service Provider concerned is and the 10
obligations that the application seeks to have waived; 11
(B) states how copies of the application can be obtained; 12
(C) requests submissions by a date specified in the notice 13
(not being a date earlier than 14 days after the date of 14
the notice). 15
4.18 The Relevant Regulator must provide a copy of the application to 16
any person within 7 days after the person requests a copy and pays any 17
reasonable fee required by the Relevant Regulator. 18
4.19 The Relevant Regulator must consider any submissions received by 19
the date specified in the notice published under section 4.17(b) and it may 20
(but is not obliged) to consider any submissions received after that date. 21
4.20 Within 14 days after the last day for submissions specified in the 22
notice published under section 4.17(b) the Relevant Regulator must issue a 23
draft decision stating whether or not it intends to issue a notice under 24
section 4.15. 25
4.21 The Relevant Regulator must-- 26
(a) provide a copy of its draft decision to the Service Provider, any 27
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person who made a submission on the matter and any other 1
person who requests a copy; and 2
(b) request submissions from persons to whom it provides the draft 3
decision by a specified date (not being a date earlier than 14 days 4
after the date the draft decision was issued). 5
4.22 The Relevant Regulator must consider any submissions it receives 6
by the date specified by the Relevant Regulator under section 4.21 and it 7
may (but is not obliged) to consider any submissions received after that 8
date. 9
4.23 Within 21 days after the last day for submissions on the draft 10
decision specified by the Relevant Regulator, the Relevant Regulator must 11
issue a final decision stating whether or not it will issue a notice under 12
section 4.15. 13
4.24 Subject to the Gas Pipelines Access Law, a notice under 14
section 4.15 has effect 14 days after the notice is given to the Service 15
Provider or such later date as the Relevant Regulator specifies in the notice. 16
A Service Provider or other person adversely affected may under the Gas 17
Pipelines Access Law have a decision by the Relevant Regulator to issue or 18
not issue a notice under section 4.15 reviewed by the Relevant Appeals 19
Body. 20
and timelines for negotiation 21
Information
5. This section of the Code places obligations on Service Providers and 22
Users to disclose to the market information relevant to obtaining access to 23
Services provided by means of a Covered Pipeline. 24
Service Providers are required to-- 25
· establish, and provide to bona fide Prospective Users who request 26
it, an Information Package containing general information on the 27
terms and conditions of access and explaining how to make a 28
specific access request; 29
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· respond within 30 days to a specific request for access; and 1
· establish and maintain a public register of Spare and Developable 2
Capacity. 3
Users with Contracted Capacity which they do not expect to use must 4
make available to any person who requests it information about the 5
quantity, type and timing of that unutilised Contracted Capacity. The 6
User may notify the Service Provider of its unutilised Contracted 7
Capacity so that it is included on the Service Provider's public register. 8
General Requests from Prospective Users 9
5.1 A Service Provider must establish and maintain an Information 10
Package in relation to each Covered Pipeline that contains at least the 11
following information-- 12
(a) the Access Arrangement and Access Arrangement Information 13
for the relevant Covered Pipeline; 14
(b) a summary of the contents of the public register referred to in 15
section 5.9, updated at reasonable intervals; 16
(c) information relating to all major trunk and mains pipes comprised 17
in the relevant Covered Pipeline (for example, a map showing the 18
location and size of those pipes); 19
(d) a description of the Service Provider's procedures relating to 20
specific access requests, including a detailed description of the 21
information the Service Provider requires in order to consider an 22
access request; and 23
(e) any other information the Relevant Regulator reasonably requires 24
to be included under section 5.2. 25
5.2 The Relevant Regulator may require the Service Provider to amend 26
or include additional information in the Information Package if the Relevant 27
Regulator considers the amendment or additional information will assist 28
Prospective Users to decide whether or not to seek Services from the 29
Service Provider or to determine how to go about seeking Services from the 30
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Service Provider. The Relevant Regulator must not require information to 1
be included in the Information Package if its disclosure could in the 2
Relevant Regulator's opinion be unduly harmful to the legitimate business 3
interests of the Service Provider or a User or Prospective User. 4
5.3 The Service Provider must provide a copy of the Information 5
Package to any bona fide Prospective User within 14 days after the 6
Prospective User requests a copy and pays any applicable fee. The Service 7
Provider may require the payment of a reasonable fee (determined in a 8
manner approved by the Relevant Regulator) for copying the Access 9
Arrangement Information, but must not charge a fee for any other item 10
included in the Information Package. 11
Specific Requests from Prospective Users 12
5.4 If a Service Provider receives a specific request for access to a 13
Service provided by means of a Covered Pipeline it must, within 30 days 14
after it has received the information required to consider the request (as set 15
out in the Information Package), respond to the Prospective User-- 16
(a) confirming that Spare Capacity exists to satisfy the request and 17
specifying the charges and terms and conditions upon which it 18
will make the Service available; or 19
(b) advising that Spare Capacity does not exist to satisfy the request; 20
or 21
(c) advising that investigations are required to be undertaken prior to 22
responding to the request. 23
5.5 If the Service Provider advises that investigations are required to be 24
undertaken prior to responding to the request, it must also advise the 25
Prospective User of-- 26
(a) the nature of the investigations; 27
(b) a plan, including a time schedule, for completing the 28
investigations; and 29
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(c) any reasonable costs which the Prospective User may be required 1
to meet in respect of the investigations. 2
Upon obtaining the Prospective User's consent to the plan and the 3
proposed allocation of costs, the Service Provider must proceed 4
forthwith with the agreed plan. 5
5.6 If the Service Provider advises that Capacity does not exist to satisfy 6
the request, it must provide an explanation outlining those aspects of the 7
request which cannot be satisfied and indicating, based on current 8
commitments, when the requirement might be able to be satisfied. 9
5.7 If a Prospective User or a Service Provider provides the other with 10
information pursuant to section 5.4, 5.5 or 5.6 which it notifies the other is 11
confidential, the recipient must not disclose that information to any other 12
person except-- 13
(a) if the information comes into the public domain otherwise than 14
by disclosure by the recipient; or 15
(b) to comply with any law, any legally binding order of a court, 16
government, government or semi-government authority or 17
administrative body or the listing rules of any relevant recognised 18
Stock Exchange. 19
Information Provided by Users to the Market 20
5.8 Notwithstanding anything contained in an Access Arrangement, 21
where a User does not expect to utilise fully its Contracted Capacity and 22
where the unutilised Contracted Capacity is a Marketable Parcel then the 23
User-- 24
(a) must promptly provide to any person who requests it information 25
about the quantity, type and timing of the unutilised Contracted 26
Capacity and may make publicly available the proposed terms 27
and conditions (which may include price) for the sale of the 28
unutilised Contracted Capacity; and 29
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(b) may notify the Service Provider of the unutilised Contracted 1
Capacity, including the quantity, type and timing of the unutilised 2
Contracted Capacity and the proposed terms and conditions 3
(which may include price) for the sale of the unutilised Contracted 4
Capacity. 5
Public Register of Capacity 6
5.9 The Service Provider must establish and maintain a public register 7
which includes-- 8
(a) an indication of the Spare Capacity that it reasonably believes 9
exists for delivery to defined points along the Covered Pipeline 10
(being defined points that are likely to be relevant commercially 11
for a significant number of Prospective Users and the number of 12
which is reasonable on commercial and technical grounds); 13
(b) to the extent that it is commercially and technically reasonable to 14
include it, information on planned or committed Developable 15
Capacity and reasonably expected additions to Spare Capacity at 16
the defined points along the Covered Pipeline referred to in 17
paragraph (a), except where such disclosure may be unduly 18
harmful to the legitimate business interests of the Service 19
Provider or a User or Prospective User; and 20
(c) information provided to the Service Provider by a User under 21
section 5.8(b). 22
Where a Covered Pipeline comprises a hierarchy of pipes that are 23
differentiated by, amongst other things, pipeline operating pressure and 24
pipeline diameter, the information referred to in paragraphs (a) and (b) 25
may be limited to the trunk and mains pipes. 26
resolution 27
Dispute
6. This section of the Code establishes a mechanism whereby disputes 28
between Prospective Users and Service Providers about the terms and 29
conditions of access can be submitted to the Arbitrator for arbitration. 30
This section of the Code sets out rules relating to notification of a 31
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dispute, withdrawal and termination of a dispute, the nature of the 1
arbitration decision to be made and certain guidelines and restrictions 2
the Arbitrator must follow in making its decision. The Gas Pipelines 3
Access Law contains the detailed procedural rules that will apply in an 4
arbitration. 5
The Code does not limit the ability of a Service Provider and User to 6
reach an agreement about access without recourse to these dispute 7
resolution procedures. The Code also does not limit the terms and 8
conditions on which a Service Provider and User can reach agreement. 9
In particular, parties can agree to a Tariff other than the Reference 10
Tariff. The provisions in section 6 will apply only if parties cannot 11
reach agreement and a dispute is notified to the Relevant Regulator. 12
The dispute resolution mechanism applies only to a dispute about 13
Service provided by means of a Covered Pipeline (for example, a 14
dispute about access to Spare or Developable Capacity or a dispute 15
about interconnection). Spare Capacity is defined as meaning, in the 16
case of a Contract Carriage Pipeline, essentially, capacity that has not 17
already been reserved in a contract plus contractually reserved capacity 18
that is not being used. Although the Arbitrator can determine that 19
access should be provided to contractually reserved capacity that is not 20
being used, it must not make a decision that deprives a person of a 21
contractual right. Consequently, access to contracted but unused 22
capacity can be ordered on an interruptible basis but the original 23
contract holder retains a priority right to that capacity. 24
Although an Access Arrangement (apart from the Queuing Policy) 25
cannot limit the scope for commercial negotiation, or limit the range of 26
matters that can be the subject of an access dispute, the Arbitrator is 27
bound to apply the provisions of the Access Arrangement in an access 28
arbitration. The implications of this are that-- 29
· except in relation to the Queuing Policy, the dispute resolution 30
procedure is the mechanism through which a User can require the 31
Service Provider to grant access according to the terms of the 32
Access Arrangement (for example, to grant access to the 33
Reference Service at the Reference Tariff); and 34
· the Access Arrangement provides a degree of certainty as to the 35
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outcome of an access dispute. 1
· The Arbitrator may before arbitrating a dispute-- 2
· require the parties to continue negotiations or engage in 3
some alternative dispute resolution process; and 4
· require written reports from the parties. 5
If the Arbitrator decides the sole subject of dispute is what tariff should 6
apply to a Reference Service, the Arbitrator may short cut the dispute 7
resolution process and make an immediate decision requiring the 8
Reference Service to be provided at the Reference Tariff. 9
In any other case, the arbitrator must in reaching a decision-- 10
· apply the provisions of the Access Arrangement; and 11
· take into account the factors listed in section 6.15. 12
· The Arbitrator must not make a decision that-- 13
· is inconsistent with the Access Arrangement; 14
· would prevent a User from obtaining a Service to the 15
extent provided for in a contract; 16
· deprives a person of any contractual right that existed 17
prior to the notification of the dispute, other than an 18
Exclusivity Right which arose on or after 30 March 19
1995; 20
· affects the valid priority rights of another person under 21
the Queuing Policy; or 22
· requires a Service Provider, User or Prospective User 23
to accept a tariff for a Reference Service other than the 24
Reference Tariff. 25
Because the Arbitrator cannot deprive a person of a contractual right, 26
"foundation shippers" contracts cannot be overturned by the Arbitrator 27
at either the Service Provider's or foundation shipper's request. 28
The Arbitrator is also precluded from granting access where the 29
Service Provider reasonably believes that access is incompatible with 30
the safe operation of the Covered Pipeline and prudent pipeline practice 31
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accepted in the industry. If the Arbitrator is precluded from granting 1
access on these grounds, the Service Provider must disclose to the 2
Prospective User the assumptions it used in forming its belief. The 3
Prospective User also has the option of requiring an independent 4
expert to provide an opinion on the matter. The expert opinion cannot 5
override the Service Provider's reasonable belief on safety. In certain 6
circumstances, however, further action could be taken by the Relevant 7
Regulator or the Prospective User under the hindering provisions of 8
the Gas Pipelines Access Law if the advice of the expert contradicts the 9
position of the Service Provider. In certain circumstances, the 10
Arbitrator may require a Service Provider to install a New Facility to 11
expand capacity. 12
The final decision has effect 14 days after the decision is made. The 13
Service Provider is bound by the decision. The Prospective User is 14
also bound by the decision unless it notifies the Arbitrator within 15
14 days of the decision that it does not intend to be bound by the 16
decision. As part of a decision, the Arbitrator may require the parties 17
to represent the decision in the form of a binding contract. 18
Notification of a Dispute 19
6.1 If a Prospective User and a Service Provider are unable to agree on 20
one or more aspects of access to a Service the Prospective User or Service 21
Provider may notify the Relevant Regulator in writing that a dispute exists. 22
A Prospective User or Service Provider may not give a notice to the 23
Relevant Regulator under this section unless an Access Arrangement has 24
been accepted by the Relevant Regulator (or the Relevant Regulator has 25
drafted and approved its own Access Arrangement) with respect to the 26
Covered Pipeline concerned. 27
6.2 On receiving the notification, the Relevant Regulator must give notice 28
in writing of the access dispute to-- 29
(a) the Service Provider, if another person notified the access dispute; 30
(b) the other person, if the Service Provider notified the access 31
dispute. 32
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The parties to an arbitration are the Prospective User or Users and the 1
Service Provider or Providers who are in dispute and no other persons. 2
6.3 Before arbitrating a dispute, the Arbitrator may-- 3
(a) require the parties to continue negotiations or engage in an 4
alternative dispute resolution process; and 5
(b) require reports from each party setting out the nature of the latest 6
offers, the basis upon which those offers were made and the 7
nature of any conflicts of interest that the Service Provider may 8
have that may affect its willingness to resolve the dispute with the 9
Prospective User. 10
6.4 Unless the Arbitrator makes a decision under section 6.3, the 11
Arbitrator must require the parties to make submissions to the Arbitrator 12
regarding the dispute by a specified date. 13
Withdrawal and Termination of a Dispute 14
6.5 The person who notified the dispute under section 6.1 or the 15
Prospective User may withdraw notification of a dispute at any time by 16
notice to the Arbitrator. If the notification is withdrawn, it is taken for the 17
purposes of this section 6 never to have been given. 18
6.6 The Relevant Regulator may at any time terminate an arbitration 19
(without making a decision) if the Relevant Regulator considers that-- 20
(a) the notification of the dispute was vexatious; or 21
(b) the subject-matter of the dispute is trivial, misconceived or 22
lacking in substance; or 23
(c) the party who notified the dispute has not engaged in negotiations 24
in good faith. 25
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The Arbitration 1
6.7 Unless the Arbitrator terminates the arbitration under section 6.6, the 2
Arbitrator must make a decision on access by the Prospective User to a 3
Service. 4
6.8 The Arbitrator's decision may deal with any matter relating to the 5
provision of a Service to a Prospective User. By way of example, the 6
decision may-- 7
(a) require the Service Provider to offer to enter into a contract to 8
provide a Service to the Prospective User at a specified Tariff and 9
on specified terms and conditions; or 10
(b) require the Service Provider to install a New Facility to increase 11
the Capacity of the Covered Pipeline pursuant to section 6.22. 12
The decision does not have to require the Service Provider to provide a 13
Service to the Prospective User. 14
6.9 Subject to section 6.14, in making a decision under section 6.7 the 15
Arbitrator must-- 16
(a) consider submissions received from the parties before the date 17
specified by the Arbitrator under section 6.4; 18
(b) after considering submissions received by the date specified by 19
the Arbitrator under section 6.4, provide a draft decision to the 20
parties and request submissions from the parties by a specified 21
date; 22
(c) consider submissions received from the parties before the date 23
specified by the Arbitrator under paragraph (b); and 24
(d) after considering submissions received by the date specified by 25
the Arbitrator under paragraph (b) provide a final decision to the 26
parties. 27
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6.10 The Arbitrator may, but need not, by whatever means it considers 1
appropriate seek written submissions from persons who are not parties to 2
the dispute and take those submissions into account in making its decision 3
under section 6.7. 4
6.11 The Arbitrator must provide a final decision under section 6.7 5
within three months of requiring parties to make submissions under 6
section 6.4. The Arbitrator must also ensure that there is a period of at least 7
14 days-- 8
(a) between requiring parties to make submissions under section 6.4 9
and the last day for such submissions specified by the Arbitrator; 10
and 11
(b) between providing a draft decision to the parties under 12
section 6.9(b) and the last day for submissions on the draft 13
decision specified by the Arbitrator. 14
In all other respects the timing for the taking of each of the steps set 15
out in section 6.9 is a matter for the Arbitrator to determine. 16
6.12 The Arbitrator may increase the period of three months specified in 17
section 6.11 by periods of up to one month on one or more occasions 18
provided it provides the parties (and each person who has made a written 19
submission to the Arbitrator) with a notice of the decision to increase the 20
period. 21
6.13 Subject to sections 6.19 and 6.20, if-- 22
(a) the sole subject of a dispute is the question of which Tariff should 23
apply to a Reference Service; and 24
(b) a decision requiring the Service Provider to provide the 25
Prospective User with the Reference Service that the Prospective 26
User seeks would not be inconsistent with sections 6.18 and 6.21, 27
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the Arbitrator must make a decision requiring the Service Provider to 1
provide the Prospective User with the Reference Service that the 2
Prospective User seeks at the Reference Tariff and on the terms and 3
conditions specified under section 3.6. 4
6.14 The Arbitrator need not before making a decision under section 6.13 5
issue a draft decision. 6
Guidance for the Arbitrator 7
6.15 When arbitrating a dispute the Arbitrator must, subject to 8
sections 6.18(b), (c) and (d), apply the provisions of the Access 9
Arrangement for the Covered Pipeline concerned. In addition, the 10
Arbitrator must take into account-- 11
(a) the Service Provider's legitimate business interests and 12
investment in the Covered Pipeline; 13
(b) the costs to the Service Provider of providing access, including 14
any costs of extending the Covered Pipeline, but not costs 15
associated with losses arising from increased competition in 16
upstream or downstream markets; 17
(c) the economic value to the Service Provider of any additional 18
investment that the Prospective User or the Service Provider has 19
agreed to undertake; 20
(d) the interests of all Users; 21
(e) firm and binding contractual obligations of the Service Provider 22
or other persons (or both) already using the Covered Pipeline; 23
(f) the operational and technical requirements necessary for the safe 24
and reliable operation of the Covered Pipeline; 25
(g) the economically efficient operation of the Covered Pipeline; and 26
(h) the benefit to the public from having competitive markets. 27
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6.16 A Service Provider must comply with a decision of the Arbitrator 1
made under this section 6 from the date specified by the Arbitrator. 2
6.17 The Arbitrator may refuse to make a decision that requires the 3
Service Provider to provide a particular Service to the Prospective User if, 4
without limitation, the Arbitrator considers there is substantial competition 5
in the market for the provision of the Service in question. 6
Restrictions on Decisions 7
6.18 Subject to sections 6.19 and 6.20 and to the Queuing Policy 8
contained in the Access Arrangement, the Arbitrator must not make a 9
decision that-- 10
(a) subject to paragraphs (b), (c) and (d), is inconsistent with the 11
Access Arrangement; 12
(b) would impede the existing right of a User to obtain Services; 13
(c) would deprive any person of a contractual right that existed prior 14
to the notification of the dispute, other than an Exclusivity Right 15
which arose on or after 30 March 1995; 16
(d) is inconsistent with the applicable Queuing Policy; or 17
(e) requires the Service Provider to provide, or the User or 18
Prospective User to accept, a Reference Service at a Tariff other 19
than the Reference Tariff. 20
Effect of a Surcharge 21
6.19 If-- 22
(a) a dispute relates (wholly or partly) to the Tariff to be charged for a 23
Service; and 24
(b) but for this section, the Arbitrator would have made a decision 25
requiring the Service Provider to provide a specified Service at a 26
specified Tariff (which could be the Reference Service at the 27
Reference Tariff); and 28
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(c) the Prospective User is a Prospective Incremental User; and 1
(d) there is a Surcharge relating to the relevant Incremental Capacity, 2
the Arbitrator's decision under section 6.7 or section 6.13 may require 3
the Service Provider to provide the Service that would (but for this 4
section) have been specified under paragraph (b) at a Tariff equal to the 5
Tariff that would (but for this section) have been specified under 6
paragraph (b) plus the Surcharge. 7
Prior Capital Contributions 8
6.20 If a User or Prospective User claims it has funded the construction 9
of all or part of a Covered Pipeline, either directly or by agreeing to pay the 10
Service Provider a higher charge than it would have paid in the absence of 11
such a capital contribution, then in making a decision the Arbitrator must-- 12
(a) consider whether the User or Prospective User did make a capital 13
contribution to the construction of all or part of the Covered 14
Pipeline; and 15
(b) consider the extent to which the User or Prospective User has 16
recouped any such capital contribution. 17
If the Arbitrator considers that the User or Prospective User has made 18
a capital contribution which has not been fully recouped, the 19
Arbitrator's decision under section 6.7 or section 6.13 may require the 20
Service Provider to provide the Service at a Tariff set in a way that 21
allows the User or Prospective User to recoup some or all of the 22
unrecouped portion of the capital contribution. 23
Safe Operation of a Covered Pipeline 24
6.21 Where the Service Provider reasonably believes that it is not 25
possible to accommodate a Prospective User's requirement for a Service 26
consistently with the safe operation of the Covered Pipeline and prudent 27
pipeline practices accepted in the industry-- 28
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(a) the Arbitrator must not make a decision that the Service Provider 1
reasonably believes is not consistent with the safe operation of the 2
Covered Pipeline and prudent pipeline practices accepted in the 3
industry; 4
(b) where the Service is being sought by the Prospective User on a 5
non interruptible basis, the Arbitrator may require the Service 6
Provider to offer a similar Service on an interruptible basis and 7
for the corresponding interruptible price, where that would be 8
consistent with the safe operation of the Covered Pipeline and 9
prudent pipeline practices accepted in the industry; and 10
(c) the Service Provider must disclose to the Prospective User the 11
assumptions it has used in determining that it is not possible to 12
accommodate the Prospective User's requirement for a Service 13
consistently with the safe operation of the Covered Pipeline and 14
prudent pipeline practices accepted in the industry and must 15
provide the Prospective User with the option of having an 16
independent expert nominated by the Service Provider, at the cost 17
of the Prospective User, give a (nonbinding) opinion on the 18
matter. 19
Obligation to Develop Capacity 20
6.22 In making a decision under section 6.7 or section 6.13 the Arbitrator 21
may require the Service Provider to expand the Capacity of a Covered 22
Pipeline to meet the requirements of a Prospective User, provided that-- 23
(a) the Service Provider is not required to extend the geographical 24
range of a Covered Pipeline; 25
(b) the expansion is technically and economically feasible and 26
consistent with the safe and reliable provision of the Service; 27
(c) the Service Provider's legitimate business interests are protected; 28
(d) the Prospective User does not become the owner of a Covered 29
Pipeline or part of a Covered Pipeline without the agreement of 30
the Service Provider; and 31
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(e) the Service Provider is not required to fund part or all of the 1
expansion (except where the Extensions/Expansions Policy in the 2
Access Arrangement for the Covered Pipeline states that the 3
Service Provider will fund the New Facility and the conditions 4
specified in the Extensions/Expansions Policy have been met). 5
6.23 If the Arbitrator requires the Service Provider to install a New 6
Facility under section 6.22 and the Prospective User bears the cost of the 7
expenditure on the New Facility, then-- 8
(a) all expenditure on the New Facility constitutes New Facilities 9
Investment by the Service Provider for the purposes of 10
determining the Reference Tariffs; 11
(b) the Service Provider must levy a Surcharge on Incremental Users 12
(apart from the Prospective User) consistent with the principles 13
for Surcharges contained in section 8 (with the Prospective User 14
treated as if it were paying a Surcharge for the purposes of 15
calculating a fair and reasonable Surcharge for other Incremental 16
Users); and 17
(c) the terms of access for the Prospective User shall reflect the value 18
to the Service Provider of the contribution made by the 19
Prospective User. 20
Prospective User May Decide Not to Take a Service 21
6.24 Where a decision made under section 6.7 or section 6.13 requires 22
the Service Provider to provide, and the Prospective User to accept, a 23
Service on terms and conditions specified in the decision, then-- 24
(a) subject to paragraph (b), the Prospective User becomes bound by 25
the decision on the 14th day after the day on which the decision 26
was made, or, if earlier, on the day the Prospective User notifies 27
the Service Provider that it intends to be bound by the decision; 28
and 29
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(b) the Prospective User is not bound by the decision if it notifies the 1
Arbitrator that it does not intend to be bound by the decision 2
within 14 days after the day on which the decision was made 3
(unless it has previously notified the Service Provider under 4
paragraph (a), in which case paragraph (a) applies). 5
Reservation of Capacity During an Access Dispute 6
6.25 No priority rights of a User or Prospective User who is a party to a 7
dispute shall be altered during the period of that dispute until the Arbitrator's 8
decision has been made under section 6.7 or section 6.13. 9
Obligation to Reflect the Decision in a Draft Contract 10
6.26 Where a decision under section 6.7 or section 6.13 requires the 11
Service Provider to provide a Service to the Prospective User on terms and 12
conditions specified in the decision, the Arbitrator may, as part of that 13
decision, require the Service Provider and Prospective User to represent that 14
decision in the form of a contract between the parties and to submit to the 15
Arbitrator, within 14 days following the date the decision comes into effect, 16
either (at the choice of the Service Provider or Prospective User)-- 17
(a) a copy of a draft contract; or 18
(b) a copy of a signed contract. 19
6.27 If the parties do not submit the draft contract (or a copy of a signed 20
contract) to the Arbitrator within the 14 day period referred to in 21
section 6.26, then the Arbitrator may make a decision on the form of any 22
terms and conditions in the draft contract that have not been resolved within 23
that time. 24
regulatory and miscellaneous provisions 25
General
7. This section of the Code contains a number of miscellaneous 26
provisions, including provisions dealing with the following. 27
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Associate Contracts - A Service Provider is required to obtain the 1
Relevant Regulator's consent before entering into certain contracts 2
(principally any contract with an Associate for the provision of a 3
Service provided by means of a Covered Pipeline). The Relevant 4
Regulator's decision to not approve an Associate Contract may be 5
subject to review by the Relevant Appeals Body under the Gas 6
Pipelines Access Law. 7
Decisions of the NCC, Relevant Minister, Relevant Regulator and 8
Arbitrator - Each decision to be made by the NCC, Relevant 9
Minister, Relevant Regulator or Arbitrator under the Code must 10
include reasons. A copy of the decision and the reasons for it should 11
be placed on a Public Register. 12
Extensions to Time Limits - Provision is made for the extension of 13
certain time limits in the Code. 14
Approval of Relevant Regulator Required for Associate Contracts 15
7.1 A Service Provider must not enter into an Associate Contract without 16
first obtaining the approval of the Relevant Regulator. The Relevant 17
Regulator must not refuse to approve a proposed Associate Contract unless 18
it considers that the contract would have the effect, or would be likely to 19
have the effect, of substantially lessening, preventing or hindering 20
competition in a market. 21
7.2 If an Associate Contract provides for the supply of Services at the 22
Reference Tariff the Relevant Regulator may make a decision under 23
section 7.1 without conducting public consultation. 24
7.3 In all other cases the Relevant Regulator must, prior to making a 25
decision under section 7.1, conduct such public consultations as it considers 26
appropriate. In conducting such public consultations the Relevant Regulator 27
may, but need not, make public the content of part or all of the Associate 28
Contract. The Relevant Regulator must not make public any part of the 29
Associate Contract which the Service Provider claims is confidential or 30
commercially sensitive except where the Relevant Regulator is of the 31
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opinion the disclosure of the part of the Associate Contract concerned 1
would not be unduly harmful to the legitimate business interests of the 2
Service Provider or a User or Prospective User. 3
7.4 The Relevant Regulator is deemed to have approved an Associate 4
Contract if it does not notify the Service Provider that it does not approve 5
the Contract within-- 6
(a) 21 days after the day on which the Service Provider's application 7
to enter into the Associate Contact was received by the Relevant 8
Regulator; or 9
(b) if, within that 21 day period, the Relevant Regulator notifies the 10
Service Provider that it requires additional information from the 11
Service Provider to consider the application - the period of 12
21 days after the day on which the Service Provider's application 13
to enter into the Associate Contract was received by the Relevant 14
Regulator plus the number of days in the period commencing on 15
the day on which the Relevant Regulator gave notice to the 16
Service Provider and ending on the day on which the Relevant 17
Regulator receives the additional information from the Service 18
Provider. 19
7.5 If the Relevant Regulator conducts a public consultation in relation to 20
an Associate Contract the references in clause 7.4 to 21 days shall be read as 21
references to 49 days. 22
7.6 A decision by the Relevant Regulator not to approve an Associate 23
Contract is subject to review by the Relevant Appeals Body under the Gas 24
Pipelines Access Law. 25
Decisions by the NCC, Relevant Minister, Relevant Regulator and 26
Arbitrator 27
7.7 If the NCC, Relevant Minister, Relevant Regulator or Arbitrator is 28
required under this Code to make a draft decision or a final decision, the 29
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NCC, Relevant Minister, Relevant Regulator or Arbitrator concerned must 1
include its reasons in its draft decision or final decision. 2
7.8 Subject to section 7.12, the NCC shall as soon as possible provide to 3
the Code Registrar to place on the Public Register a copy of-- 4
(a) each application for Coverage of a Pipeline and application for 5
revocation of Coverage of a Pipeline; 6
(b) each submission received by the NCC in relation to any such 7
application; 8
(c) each recommendation made by the NCC in relation to any such 9
application and the reasons given for such a recommendation; and 10
(d) each decision made by the Relevant Minister (and the Relevant 11
Appeals Body under the Gas Pipelines Access Law, if applicable) 12
in relation to any such application and the reasons given for such 13
a decision, including a description of the Pipeline the subject of 14
that decision. 15
7.9 Subject to section 7.12, each Relevant Regulator shall as soon as 16
possible provide to the Code Registrar to place on the Public Register-- 17
(a) in relation to Access Arrangements a copy of-- 18
(i) each proposed Access Arrangement or proposed revisions 19
of an Access Arrangement; 20
(ii) each proposed Access Arrangement Information or 21
proposed revisions of Access Arrangement Information; 22
(iii) each submission received by the Relevant Regulator in 23
relation to the Access Arrangement or revisions to the 24
Access Arrangement; 25
(iv) each submission received by the Relevant Regulator in 26
relation to the Access Arrangement Information or revisions 27
to the Access Arrangement Information; 28
(v) each draft decision and final decision made by the Relevant 29
Regulator (and the Relevant Appeals Body under the Gas 30
Pipelines Access Law if applicable) in relation to a proposed 31
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Access Arrangement, proposed revisions to an Access 1
Arrangement, proposed Access Arrangement Information 2
or proposed revisions to Access Arrangement Information 3
and the reasons given for each such draft or final decision; 4
(vi) if an Access Arrangement submitted under section 2.3 is 5
accepted, a description of the Pipeline which thereby became 6
Covered; 7
(b) in relation to competitive tender processes a copy of-- 8
(i) each Tender Approval Request and Final Approval Request 9
the Relevant Regulator receives; 10
(ii) each submission and other document the Relevant Regulator 11
receives relating to a Tender Approval Request and Final 12
Approval Request; 13
(iii) each decision by the Relevant Regulator relating to a Tender 14
Approval Request or Final Approval Request and the 15
reasons given for each such decision; 16
(iv) a description of any proposed Pipeline that becomes a 17
Covered Pipeline pursuant to section 3.34; 18
(c) in relation to arbitrations, if the Regulator considers it appropriate, 19
a copy of each draft or final decision of the Relevant Regulator (or 20
an Arbitrator appointed by it) under section 6 of the Code and the 21
reasons given for each such draft or final decision; 22
(d) in relation to ring fencing a copy of-- 23
(i) each application received by the Relevant Regulator under 24
section 4; 25
(ii) each submission received by the Relevant Regulator in 26
relation to adding to or waiving ring fencing obligations; 27
(iii) any draft or final decision by the Relevant Regulator (and the 28
Relevant Appeals Body under the Gas Pipelines Access Law 29
if applicable) to add to or waive ring fencing obligations and 30
the reasons given for any such draft or final decision; 31
(e) in relation to Associate Contracts a copy of-- 32
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(i) each decision made by the Relevant Regulator under 1
section 7.1 and the reasons given for any such decision; 2
(ii) if the Relevant Regulator considers it appropriate, the 3
proposed Associate Contract. 4
Public Register 5
7.10 Subject to section 7.12 the Code Registrar shall keep a Public 6
Register and place on that register-- 7
(a) a description of each Covered Pipeline; 8
(b) each document provided to it by the NCC under section 7.8 of the 9
Code and section 10 or 11 of the Gas Pipelines Access Law; 10
(c) each document provided to it by a Relevant Regulator under 11
section 7.9; and 12
(d) each document provided to it by a Service Provider under either 13
section 1.41 or section 3.20. 14
Treatment of Confidential Information 15
7.11 Where a person furnishes information or a document to the NCC, 16
Relevant Minister or Relevant Regulator (other than in compliance with a 17
notice given by the Relevant Regulator under section 41 of the Gas 18
Pipelines Access Law) the person may, at the time when the document is 19
furnished, state that the information or document or part of the information 20
or document is of a confidential or commercially sensitive nature. 21
7.12 The NCC, Relevant Minister and Relevant Regulator must not 22
disclose the contents of any such information or document or any such part 23
of the information or document to any person or provide it to the Code 24
Registrar to place on the Public Register except where the NCC, Relevant 25
Minister or Relevant Regulator is of the opinion that the disclosure of the 26
information or document or part of the information or document would not 27
be unduly harmful to the legitimate business interests of the Service 28
Provider or a User or Prospective User. 29
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7.13 Notwithstanding section 7.12 the information provided to the Code 1
Registrar by the Relevant Regulator under section 7.9 must include at least 2
the information stated below for the decision identified-- 3
(a) A decision in relation to an Access Arrangement or revisions to 4
an Access Arrangement-- 5
(i) the valuations derived from employing each asset valuation 6
methodology to which regard was had pursuant to 7
section 8.10(a) and (b) and the assumptions on which those 8
valuations were based; 9
(ii) the Initial Capital Base for a Covered Pipeline that is in 10
existence at the Commencement of the Code; 11
(iii) a summary of the assumptions and reasoning that resulted in 12
the figure adopted as the Initial Capital Base for a Covered 13
Pipeline that is in existence at the commencement of the 14
Code, including if the Initial Capital Base for a Covered 15
Pipeline that is in existence at the commencement of the 16
Code is outside the range of values determined according to 17
sections 8.10(a) and (b), detailed reasons as to why a figure 18
outside that range was selected. 19
(b) A decision in relation to an Access Arrangement or revisions to 20
an Access Arrangement where the decision was to approve a 21
proposed Access Arrangement or proposed revisions: details of 22
where the assumptions adopted by the Regulator in approving the 23
(or drafting and approving its own) Access Arrangement differ 24
from the assumptions described in the Access Arrangement 25
Information and reasons for that difference. 26
7.14 The Relevant Regulator may provide a person who makes a request 27
for further information with such further information relevant to the 28
decision as it sees fit, other than information which could not be provided to 29
the Code Registrar under section 7.12. 30
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Operational Guidelines 1
7.15 In exercising any functions under the Code the Relevant Regulator 2
and the Arbitrator may take into account any guidelines on operational 3
procedures approved by the Relevant Ministers of all the Scheme 4
Participants on the recommendation of the NGPAC. 5
Extensions to Time Limits 6
7.16 If any section of this Code requires the NCC or the Relevant 7
Minister to do something within a certain period, the NCC or the Relevant 8
Minister, as the case may be, may, in a particular case, increase the period it 9
has to do the thing in question by the period originally specified in the 10
section of the Code concerned. 11
7.17 The NCC or the Relevant Minister may only increase the period it 12
has to do a thing under section 7.16 if, before the day on which the Code 13
would have required the thing to be done, it publishes in a national 14
newspaper notice of the decision to increase the period. 15
7.18 The NCC and the Relevant Minister may increase the period it has 16
to do a thing any number of times provided on each occasion it does so it 17
complies with section 7.17. 18
7.19 The Relevant Regulator may on one or more occasions, at its 19
discretion, grant extensions to any time period in this Code that applies to a 20
person other than the Relevant Regulator, the NCC or the Relevant Minister, 21
provided that an application for that extension has been received by it before 22
the expiration of the time period in question. Time periods applying to the 23
Relevant Regulator, NCC or Relevant Minister may be extended as 24
otherwise provided in this Code. 25
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tariff principles 1
Reference
8. This section of the Code sets out the principles with which 2
Reference Tariffs and a Reference Tariff Policy (the principles 3
underlying the calculation of Reference Tariffs) included in an Access 4
Arrangement must comply. 5
General Principles 6
The Reference Tariff Principles are designed to ensure that certain key 7
principles are reflected in the Reference Tariff Policy and in the 8
calculation of all Reference Tariffs. Within these parameters, the 9
Reference Tariff Principles are designed to provide a high degree of 10
flexibility so that the Reference Tariff Policy can be designed to meet 11
the specific needs of each pipeline system. The overarching 12
requirement is that when Reference Tariffs are determined and 13
reviewed, they should be based on the efficient cost (or anticipated 14
efficient cost) of providing the Reference Services. 15
The Principles also require that, where appropriate, Reference Tariffs 16
be designed to provide the Service Provider with the ability to earn 17
greater profits (or less profits) than anticipated between reviews if it 18
outperforms (or underperforms against) the benchmarks that were 19
adopted in setting the Reference Tariffs. The intention is that, to the 20
extent possible, Service Providers be given a market-based incentive to 21
improve efficiency and to promote efficient growth of the gas market 22
(an Incentive Mechanism). 23
The Reference Tariff Policy and all Reference Tariffs should be 24
designed to achieve a number of objectives, including providing the 25
Service Provider with the opportunity to earn a stream of revenue that 26
recovers the costs of delivering the Reference Service over the 27
expected life of the assets used in delivering that Service, to replicate 28
the outcome of a competitive market, and to be efficient in level and 29
structure. 30
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Principles for determining the Total Revenue 1
Reference Tariffs are to be set on the basis of the sales of all Services 2
provided by the Covered Pipeline delivering (or being forecast to 3
deliver) a certain amount of revenue (Total Revenue) over the period 4
for which the Reference Tariffs remain in effect (the Reference Tariff 5
Period). 6
The Reference Tariff Principles specify three methodologies for 7
determining the Total Revenue-- 8
· Cost of Service: where the Total Revenue is set to recover 9
`costs' with those costs to be calculated on the basis of a 10
return (Rate of Return) on the value of the assets that form 11
the Covered Pipeline (Capital Base), depreciation on the 12
Capital Base (Depreciation) and the operating, maintenance 13
and other non-capital costs (Non-Capital Costs) incurred in 14
delivering all Services. 15
· IRR: where the Total Revenue is set to provide an acceptable 16
Internal Rate of Return (IRR) for the Covered Pipeline on 17
the basis of forecast costs and sales. 18
· NPV: where the Total Revenue is set to deliver a Net Present 19
Value (NPV) for the Covered Pipeline (on the basis of 20
forecast costs and sales) equal to zero, using an acceptable 21
discount rate. 22
While these methodologies are different ways of assessing the Total 23
Revenue, their outcomes should be consistent (for example, it is 24
possible to express any NPV calculation in terms of a Cost of Service 25
calculation by the choice of an appropriate depreciation schedule). In 26
addition, other methodologies that can be translated into one of these 27
forms are acceptable (such as a method that provides a real rate of 28
return on an inflation-indexed capital base). 29
The principles that guide the determination of the Reference Tariff 30
Period are set out in Section 3 of the Code. These principles permit the 31
Reference Tariff Period to be any length of time that is consistent with 32
the objectives for setting Reference Tariffs. However, the Relevant 33
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Regulator must consider (but is not bound to require) inserting 1
safeguards against excessive forecast error if the Reference Tariff 2
Period is over five years. 3
The Reference Tariff Principles recognise that these methods for 4
calculating the Total Revenue may provide a range of feasible 5
outcomes. In narrowing this range, the Relevant Regulator is 6
permitted to have regard to various financial and performance 7
indicators. 8
Broad principles for establishing the Capital Base when Reference 9
Tariffs are set initially and reviewed are set out, including principles 10
for-- 11
· establishing the Initial Capital Base (including principles for 12
valuing pipelines in existence at the commencement of the 13
Code and those that come into existence after the 14
commencement of the Code); 15
· valuing investment in new facilities (including principles for 16
determining whether New Facilities Investment may be 17
included in the Capital Base, and for addressing differences 18
between forecast and actual capital expenditure) and 19
· reducing the Capital Base where assets cease to contribute, 20
or make a reduced contribution, to the delivery of Services. 21
These principles apply equally to all of the methodologies for 22
assessing Total Revenue, and to clarify this, certain detailed principles 23
are translated into a form that is applicable to the IRR and NPV 24
methodologies. 25
Broad principles for determining the Rate of Return are also set out, 26
essentially requiring a return which is commensurate with the 27
prevailing conditions in the market for funds and the risks involved in 28
delivering the Reference Service. 29
A number of principles are specified for the Depreciation Schedule, 30
which include that-- 31
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· the time-path for Reference Tariffs that is implied by the 1
Depreciation Schedule be consistent with efficient market 2
growth, and in particular, to avoid delivering Reference 3
Tariffs that are excessively high in early years and low in 4
later years; 5
· depreciation should be over the economic life of the assets 6
that form the Covered Pipeline; and 7
· assets be depreciated only once for the purposes of setting 8
Reference Tariffs. 9
Again, these principles apply equally to all of the methodologies for 10
assessing Total Revenue, and to clarify this, certain detailed principles 11
are translated into a form that is applicable to the IRR and NPV 12
methodologies. 13
Finally, the Reference Tariff Principles specify that Non Capital Costs 14
are the operating, maintenance and other costs incurred (or forecast to 15
be incurred) in the delivery of all Services provided by the Pipeline, 16
and provide that these can be factored into Reference Tariffs if 17
`prudent'. 18
Allocation of the total revenue 19
The Reference Tariff Principles set out broad principles for 20
determining the portion of the Total Revenue that a Reference Tariff 21
should be designed to recover from sales of the Reference Service, and 22
the portion of revenue that should be recovered from each User of that 23
Reference Service. These principles essentially require that the Charge 24
paid by any User of a Reference Service be cost reflective, although 25
substantial flexibility is provided. 26
An exception to the allocation rule is the case of `prudent discounts'. 27
Where a User is receiving a discount (which implies the Service 28
Provider is receiving less revenue from that User than that assumed in 29
the calculation of Reference Tariffs), and such a discount is 'prudent', 30
the Relevant Regulator has the discretion (when Reference Tariffs are 31
set initially or reviewed) to permit the Service Provider to recover 32
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some or all of that shortfall in revenue by raising Reference Tariffs to 1
other Users (if the discount is prudent, the Reference Tariff would be 2
lower for all Users). 3
Other principles 4
This section also establishes-- 5
· principles concerning the use and design of Incentive 6
Mechanisms; and 7
· a mechanism whereby certain parts of the Reference Tariff 8
Policy cannot be changed at a review of the Access 9
Arrangement for a certain period; and 10
· principles for the charging of Surcharges in relation to 11
Incremental Capacity. 12
General Principles 13
8.1A Reference Tariff and Reference Tariff Policy should be designed 14
with a view to achieving the following objectives-- 15
(a) providing the Service Provider with the opportunity to earn a 16
stream of revenue that recovers the efficient costs of delivering 17
the Reference Service over the expected life of the assets used in 18
delivering that Service; 19
(b) replicating the outcome of a competitive market; 20
(c) ensuring the safe and reliable operation of the Pipeline; 21
(d) not distorting investment decisions in Pipeline transportation 22
systems or in upstream and downstream industries; 23
(e) efficiency in the level and structure of the Reference Tariff; and 24
(f) providing an incentive to the Service Provider to reduce costs and 25
to develop the market for Reference and other Services. 26
To the extent that any of these objectives conflict in their application to 27
a particular Reference Tariff determination, the Relevant Regulator 28
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may determine the manner in which they can best be reconciled or 1
which of them should prevail. 2
8.2 The factors about which the Relevant Regulator must be satisfied in 3
determining to approve a Reference Tariff and Reference Tariff Policy are 4
that-- 5
(a) the revenue to be generated from the sales (or forecast sales) of all 6
Services over the Access Arrangement Period (the Total 7
Revenue) should be established consistently with the principles 8
and according to one of the methodologies contained in this 9
section 8; 10
(b) to the extent that the Covered Pipeline is used to provide a 11
number of Services, that portion of Total Revenue that a 12
Reference Tariff is designed to recover (which may be based 13
upon forecasts) is calculated consistently with the principles 14
contained in this section 8; 15
(c) a Reference Tariff (which may be based upon forecasts) is 16
designed so that the portion of Total Revenue to be recovered 17
from a Reference Service (referred to in paragraph (b)) is 18
recovered from the Users of that Reference Service consistently 19
with the principles contained in this section 8; 20
(d) Incentive Mechanisms are incorporated into the Reference Tariff 21
Policy wherever the Relevant Regulator considers appropriate and 22
such Incentive Mechanisms are consistent with the principles 23
contained in this section 8; and 24
(e) any forecasts required in setting the Reference Tariff represent 25
best estimates arrived at on a reasonable basis. 26
Form of regulation 27
8.3 Subject to these requirements and to the Relevant Regulator being 28
satisfied that it is consistent with the objectives contained in section 8.1, the 29
manner in which a Reference Tariff may vary within an Access 30
Arrangement Period through implementation of the Reference Tariff Policy 31
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is within the discretion of the Service Provider. For example, a Reference 1
Tariff may be designed on the basis of-- 2
(a) a "price path" approach, whereby a series of Reference Tariffs are 3
determined in advance for the Access Arrangement Period to 4
follow a path that is forecast to deliver a revenue stream calculated 5
consistently with the principles in this section 8, but is not 6
adjusted to account for subsequent events until the 7
commencement of the next Access Arrangement Period; 8
(b) a "cost of service" approach, whereby the Tariff is set on the 9
basis of the anticipated costs of providing the Reference Service 10
and is adjusted continuously in light of actual outcomes (such as 11
sales volumes and actual costs) to ensure that the Tariff recovers 12
the actual costs of providing the Service; or 13
(c) variations or combinations of these approaches. 14
Total Revenue 15
8.4 The Total Revenue (a portion of which will be recovered from sales 16
of Reference Services) should be calculated according to 1 of the following 17
methodologies-- 18
Cost of Service--The Total Revenue is equal to the cost of providing 19
all Services (some of which may be the forecast of such costs), and 20
with this cost to be calculated on the basis of-- 21
(a) a return (Rate of Return) on the value of the capital assets 22
that form the Covered Pipeline (Capital Base); 23
(b) depreciation of the Capital Base (Depreciation); and 24
(c) the operating, maintenance and other non-capital costs 25
incurred in providing all Services provided by the Covered 26
Pipeline (Non-Capital Costs). 27
IRR--The Total Revenue will provide a forecast Internal Rate of 28
Return (IRR) for the Covered Pipeline that is consistent with the 29
principles in sections 8.30 and 8.31. The IRR should be calculated on 30
the basis of a forecast of all costs to be incurred in providing such 31
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Services (including capital costs) during the Access Arrangement 1
Period. 2
The initial value of the Covered Pipeline in the IRR calculation is to be 3
given by the Capital Base at the commencement of the Access 4
Arrangement Period and the assumed residual value of the Covered 5
Pipeline at the end of the Access Arrangement Period (Residual 6
Value) should be calculated consistently with the principles in this 7
section 8. 8
NPV--The Total Revenue will provide a forecast Net Present Value 9
(NPV) for the Covered Pipeline equal to zero. The NPV should be 10
calculated on the basis of a forecast of all costs to be incurred in 11
providing such Services (including capital costs) during the Access 12
Arrangement Period, and using a discount rate that would provide the 13
Service Provider with a return consistent with the principles in 14
sections 8.30 and 8.31. 15
The initial value of the Covered Pipeline in the NPV calculation is to be 16
given by the Capital Base at the commencement of the Access 17
Arrangement Period and the assumed Residual Value at the end of the 18
Access Arrangement Period should be calculated consistently with the 19
principles in this section 8. 20
The methodology used to calculate the Cost of Service, an IRR or 21
NPV should be in accordance with generally accepted industry 22
practice. 23
8.5 Other methodologies may be used provided the resulting Total 24
Revenue can be expressed in terms of one of the methodologies described 25
above. 26
8.6 In view of the manner in which the Rate of Return, Capital Base, 27
Depreciation Schedule and Non Capital Costs may be determined (in each 28
case involving various discretions), it is possible that a range of values may 29
be attributed to the Total Revenue described in section 8.4. In order to 30
determine an appropriate value within this range the Relevant Regulator 31
may have regard to any financial and operational performance indicators it 32
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considers relevant in order to determine the level of costs within the range 1
of feasible outcomes under section 8.4 that is most consistent with the 2
objectives contained in section 8.1. 3
8.7 If the Relevant Regulator has considered financial and operational 4
performance indicators for the purposes of section 8.6, it must identify the 5
indicators and provide an explanation of how they have been taken into 6
account. 7
Principles for establishing the capital base 8
8.8 Principles for establishing the Capital Base for the Covered Pipeline 9
when a Reference Tariff is first proposed for a Reference Service (ie, for the 10
first Access Arrangement Period) are set out in sections 8.10 to 8.14. 11
8.9 Sections 8.15 to 8.29 then describe the principles to be applied in 12
adjusting the value of the Capital Base over time as a result of additions to 13
the Covered Pipeline and as a result of parts of the Covered Pipeline ceasing 14
to be used for the delivery of Services. Consistently with those principles, 15
the Capital Base at the commencement of each Access Arrangement Period 16
after the first, for the Cost of Service methodology, is determined as-- 17
(a) the Capital Base at the start of the immediately preceding Access 18
Arrangement Period; plus 19
(b) the New Facilities Investment or Recoverable Portion (whichever 20
is relevant) in the immediately preceding Access Arrangement 21
Period (adjusted as relevant as a consequence of section 8.22 to 22
allow for the differences between actual and forecast New 23
Facilities Investment); less 24
(c) depreciation for the immediately preceding Access Arrangement 25
Period; less 26
(d) Redundant Capital identified prior to the commencement of that 27
Access Arrangement Period, 28
and for the IRR or NPV methodology, is determined as-- 29
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(e) the Residual Value assumed in the previous Access Arrangement 1
Period (adjusted as relevant as a consequence of section 8.22 to 2
allow for the differences between actual and forecast New 3
Facilities Investment); less 4
(f) Redundant Capital identified prior to the commencement of that 5
Access Arrangement Period. 6
Initial capital base--existing pipelines 7
8.10 When a Reference Tariff is first proposed for a Reference Service 8
provided by a Covered Pipeline that was in existence at the commencement 9
of the Code, the following factors should be considered in establishing the 10
initial Capital Base for that Pipeline-- 11
(a) the value that would result from taking the actual capital cost of 12
the Covered Pipeline and subtracting the accumulated depreciation 13
for those assets charged to Users (or thought to have been 14
charged to Users) prior to the commencement of the Code; 15
(b) the value that would result from applying the "depreciated 16
optimised replacement cost" methodology in valuing the Covered 17
Pipeline; 18
(c) the value that would result from applying other well recognised 19
asset valuation methodologies in valuing the Covered Pipeline; 20
(d) the advantages and disadvantages of each valuation methodology 21
applied under paragraphs (a), (b) and (c); 22
(e) international best practice of Pipelines in comparable situations 23
and the impact on the international competitiveness of energy 24
consuming industries; 25
(f) the basis on which Tariffs have been (or appear to have been) set 26
in the past, the economic depreciation of the Covered Pipeline, 27
and the historical returns to the Service Provider from the 28
Covered Pipeline; 29
(g) the reasonable expectations of persons under the regulatory 30
regime that applied to the Pipeline prior to the commencement of 31
the Code; 32
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(h) the impact on the economically efficient utilisation of gas 1
resources; 2
(i) the comparability with the cost structure of new Pipelines that 3
may compete with the Pipeline in question (for example, a 4
Pipeline that may by-pass some or all of the Pipeline in question); 5
(j) the price paid for any asset recently purchased by the Service 6
Provider and the circumstances of that purchase; and 7
(k) any other factors the Relevant Regulator considers relevant. 8
8.11 The initial Capital Base for Covered Pipelines that were in existence 9
at the commencement of the Code normally should not fall outside the 10
range of values determined under paragraphs (a) and (b) of section 8.10. 11
Initial capital base--new pipelines 12
8.12 When a Reference Tariff is first proposed for a Reference Service 13
provided by a Covered Pipeline that has come into existence after the 14
commencement of the Code, the initial Capital Base for the Covered 15
Pipeline is, subject to section 8.13, the actual capital cost of those assets at 16
the time they first enter service. A new Pipeline does not need to pass the 17
tests described in section 8.16. 18
8.13 If the period between the time the Covered Pipeline first enters 19
service and the time the Reference Tariff is proposed is such as reasonably 20
to warrant adjustment to the actual capital cost in establishing the initial 21
Capital Base, then that cost should be adjusted to account for New Facilities 22
Investment or the Recoverable Portion (whichever is relevant), Depreciation 23
and Redundant Capital incurred or identified during that period (as 24
described in section 8.9). 25
Initial capital base--after the expiry of an access arrangement 26
8.14 Where an Access Arrangement has expired, the initial Capital Base 27
at the time a new Access Arrangement is approved is the Capital Base 28
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Gas Pipelines Access (Queensland)
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applying at the expiry of the previous Access Arrangement adjusted to 1
account for the New Facilities Investment or the Recoverable Portion 2
(whichever is relevant), Depreciation and Redundant Capital (as described 3
in section 8.9) as if the previous Access Arrangement had remained in 4
force. 5
New facilities investment 6
8.15 The Capital Base for a Covered Pipeline may be increased from the 7
commencement of a new Access Arrangement Period to recognise 8
additional capital costs incurred in constructing New Facilities for the 9
purpose of providing Services. 10
8.16 The amount by which the Capital Base may be increased is the 11
amount of the actual capital cost incurred (New Facilities Investment) 12
provided that-- 13
(a) that amount does not exceed the amount that would be invested 14
by a prudent Service Provider acting efficiently, in accordance 15
with accepted good industry practice, and to achieve the lowest 16
sustainable cost of delivering Services; and 17
(b) one of the following conditions is satisfied-- 18
(i) the Anticipated Incremental Revenue generated by the New 19
Facility exceeds the New Facilities Investment; or 20
(ii) the Service Provider and/or Users satisfy the Relevant 21
Regulator that the New Facility has system-wide benefits 22
that, in the Relevant Regulator's opinion, justify the approval 23
of a higher Reference Tariff for all Users; or 24
(iii) the New Facility is necessary to maintain the safety, integrity 25
or Contracted Capacity of Services. 26
8.17 For the purposes of administering section 8.16(a), the Relevant 27
Regulator must consider-- 28
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(a) whether the New Facility exhibits economies of scale or scope 1
and the increments in which Capacity can be added; and 2
(b) whether the lowest sustainable cost of delivering Services over a 3
reasonable time frame may require the installation of a New 4
Facility with Capacity sufficient to meet forecast sales of Services 5
over that time frame. 6
8.18 A Reference Tariff Policy may, at the discretion of the Service 7
Provider, state that the Service Provider will undertake New Facilities 8
Investment that does not satisfy the requirements of section 8.16. If the 9
Service Provider incurs such New Facilities Investment, the Capital Base 10
may be increased by that part of the New Facilities Investment which does 11
satisfy section 8.16 (the Recoverable Portion). 12
8.19 The Reference Tariff Policy may also provide that an amount in 13
respect of the balance of the New Facilities Investment may subsequently 14
be added to the Capital Base if at any time the type and volume of services 15
provided using the increase in Capacity attributable to the New Facility 16
change such that any part of the Speculative Investment Fund (as defined 17
below) would then satisfy the requirements of section 8.16. The amount of 18
the Speculative Investment Fund at any time is equal to-- 19
(a) the difference between the New Facilities Investment and the 20
Recoverable Portion, less any amount the Service Provider 21
notifies the Relevant Regulator (at the time the expenditure is 22
incurred) that it has elected to recover through a Surcharge under 23
section 8.25 (Speculative Investment); plus 24
(b) an annual increase in that amount calculated on a compounded 25
basis at a rate of return approved by the Relevant Regulator which 26
rate of return may, but need not, be different from the rate of 27
return implied in the Reference Tariff; less 28
(c) any part of the Speculative Investment Fund previously added to 29
the Capital Base under this section 8.19. 30
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Forecast capital expenditure 1
8.20 Consistent with the methodologies described in section 8.4, 2
Reference Tariffs may be determined on the basis of New Facilities 3
Investment that is forecast to occur within the Access Arrangement Period 4
provided that the New Facilities Investment is reasonably expected to pass 5
the requirements in section 8.16 when the New Facilities Investment is 6
forecast to occur. 7
8.21 If the Relevant Regulator agrees to Reference Tariffs being 8
determined on the basis of forecast New Facilities Investment, this need not 9
(at the discretion of the Relevant Regulator) imply that such New Facilities 10
Investment will meet the requirements of Section 8.16 when the Relevant 11
Regulator considers revisions to an Access Arrangement submitted by a 12
Service Provider. However, the Relevant Regulator may, at its discretion, 13
agree (on written application by the Service Provider) at the time at which 14
the New Facilities Investment takes place that it meets the requirements of 15
section 8.16, the effect of which is to bind the Relevant Regulator's decision 16
when the Relevant Regulator considers revisions to an Access Arrangement 17
submitted by the Service Provider. For the purposes of public consultation, 18
any such application must be treated as if it were a proposed revision to the 19
Access Arrangement submitted under section 2.28. 20
8.22 For the purposes of calculating the Capital Base at the 21
commencement of the subsequent Access Arrangement Period, either the 22
Reference Tariff Policy should describe or the Relevant Regulator shall 23
determine when the Relevant Regulator considers revisions to an Access 24
Arrangement submitted by a Service Provider, how the New Facilities 25
Investment is to be determined for the purposes of section 8.9. This 26
includes whether (and how) the Capital Base at the commencement of the 27
next Access Arrangement Period should be adjusted if the actual New 28
Facilities Investment is different from the forecast New Facilities 29
Investment (with this decision to be designed to best meet the objectives in 30
section 8.1). 31
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Capital Contributions 1
8.23 New Facilities Investment may also be added to the Capital Base 2
when a User makes a Capital Contribution (as defined below) in respect of 3
a New Facility. Nothing in this Code prevents a User agreeing to pay the 4
Service Provider a Charge which exceeds the Charge that would apply 5
under a Reference Tariff for a Reference Service (or, in relation to another 6
Service, under the Equivalent Tariff) in any circumstance including, without 7
limitation, if the excess is paid in respect of the funding of a New Facility 8
(in which case the extra payment is a Capital Contribution). 9
8.24 Any expenditure on a New Facility in respect of which a User 10
makes a Capital Contribution constitutes New Facilities Investment incurred 11
by the Service Provider for the purposes of this section 8. The User's 12
obligations to the Service Provider and the Service Provider's obligations to 13
the User with respect to the Capital Contribution shall be as agreed between 14
the Service Provider and User. 15
Surcharges 16
8.25 As contemplated in section 8.19(a), unless precluded by the Service 17
Provider's Extensions/Expansions Policy, a Service Provider may elect by 18
written notice to the Relevant Regulator to recover all or part of an amount 19
that it would not recover at the Prevailing Tariffs through a Surcharge (after 20
commencement of the next Access Arrangement Period, this amount is that 21
amount that would otherwise constitute Speculative Investment). A 22
Surcharge is a Charge in addition to the Charge that would apply under a 23
Reference Tariff for a Reference Service (or, in relation to another Service, 24
under the Tariff that would be determined by the Arbitrator in arbitrating an 25
access dispute under section 6) that is levied on Users of Incremental 26
Capacity in order for the Service Provider to recover some or all of the cost 27
of New Facilities Investment that can not be recovered at the Prevailing 28
Tariffs (and so cannot be included in the Capital Base in subsequent Access 29
Arrangement Periods). If the Relevant Regulator receives such a written 30
notice, it may approve the Surcharge, with an approval having the effect of 31
binding the Arbitrator in an access dispute under section 6. For the purposes 32
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of public consultation, the notice shall be treated as if it were a proposed 1
revision to the Access Arrangement submitted under section 2.28. 2
8.26 A Service Provider may levy a Surcharge on Users of Incremental 3
Capacity provided the following principles apply: 4
(a) the Surcharges are designed to recover only that part of the New 5
Facilities Investment that satisfies the requirement in 6
section 8.16(a); 7
(b) the costs that the Surcharges are designed to recover do not 8
include any costs that are included in the Speculative Investment 9
Fund; and 10
(c) the structure of the Surcharges reflect a fair and reasonable 11
sharing of the total recoverable cost between Incremental Users 12
(and for this purpose any User who is paying a Capital 13
Contribution should be assumed to be paying a Surcharge). 14
Capital redundancy 15
8.27 A Reference Tariff Policy may include (and the Relevant Regulator 16
may require that it include) a mechanism that will, with effect from the 17
commencement of the next Access Arrangement Period, remove an 18
amount from the Capital Base (Redundant Capital) for a Covered 19
Pipeline so as to-- 20
(a) ensure that assets which cease to contribute in anyway to the 21
delivery of Services are not reflected in the Capital Base; and 22
(b) share costs associated with a decline in the volume of sales of 23
Services provided by means of the Covered Pipeline between the 24
Service Provider and Users. 25
Before approving a Reference Tariff which includes such a mechanism, 26
the Relevant Regulator must take into account the uncertainty such a 27
mechanism would cause and the effect that uncertainty would have on the 28
Service Provider, Users and Prospective Users. If a Reference Tariff does 29
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include such a mechanism, the determination of the Rate of Return (under 1
sections 8.30 and 8.31) and the economic life of the assets (under 2
section 8.33) should take account of the resulting risk (and cost) to the 3
Service Provider of a fall in the revenue received from sales of Services 4
provided by means of the Covered Pipeline or part of the Covered Pipeline. 5
8.28 If assets that are the subject of Redundant Capital subsequently 6
contribute, or make an enhanced contribution, to the delivery of Services, 7
the assets may be treated as a New Facility having New Facilities 8
Investment (for the purpose of sections 8.16, 8.17, 8.18 and 8.19) equal to 9
the Redundant Capital Value increased annually on a compounded basis by 10
the Rate of Return from the time the Redundant Capital Value was removed 11
from the Capital Base. 12
8.29 A Reference Tariff Policy may include (and the Relevant Regulator 13
may require it to include) other mechanisms that have the same effect on 14
Reference Tariffs as the above but which do not result in the removal of any 15
amount from the Capital Base. 16
Rate of return 17
8.30 The Rate of Return used in determining a Reference Tariff should 18
provide a return which is commensurate with prevailing conditions in the 19
market for funds and the risk involved in delivering the Reference Service 20
(as reflected in the terms and conditions on which the Reference Service is 21
offered and any other risk associated with delivering the Reference Service). 22
8.31 By way of example, the Rate of Return may be set on the basis of a 23
weighted average of the return applicable to each source of funds (equity, 24
debt and any other relevant source of funds). Such returns may be 25
determined on the basis of a well accepted financial model, such as the 26
Capital Asset Pricing Model. In general, the weighted average of the return 27
on funds should be calculated by reference to a financing structure that 28
reflects standard industry structures for a going concern and best practice. 29
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However, other approaches may be adopted where the Relevant Regulator 1
is satisfied that to do so would be consistent with the objectives contained in 2
section 8.1. 3
Depreciation schedule--cost of service 4
8.32 The Depreciation Schedule is the set of depreciation schedules (one 5
of which may correspond to each asset or group of assets that form part of 6
the Covered Pipeline) that is the basis upon which the assets that form part 7
of the Capital Base are to be depreciated for the purposes of determining a 8
Reference Tariff (the Depreciation Schedule). 9
8.33 The Depreciation Schedule should be designed-- 10
(a) so as to result in the Reference Tariff changing over time in a 11
manner that is consistent with the efficient growth of the market 12
for the Services provided by the Pipeline (and which may involve 13
a substantial portion of the depreciation taking place in future 14
periods, particularly where the calculation of the Reference Tariffs 15
has assumed significant market growth and the Pipeline has been 16
sized accordingly); 17
(b) so that each asset or group of assets that form part of the Covered 18
Pipeline is depreciated over the economic life of that asset or 19
group of assets; 20
(c) so that, to the maximum extent that is reasonable, the depreciation 21
schedule for each asset or group of assets that form part of the 22
Covered Pipeline is adjusted over the life of that asset or group of 23
assets to reflect changes in the expected economic life of that asset 24
or group of assets; and 25
(d) subject to section 8.27, so that an asset is depreciated only once 26
(that is, so that the sum of the Depreciation that is attributable to 27
any asset or group of assets over the life of those assets is 28
equivalent to the value of that asset or group of assets at the time 29
at which the value of that asset or group of assets was first 30
included in the Capital Base). 31
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Application of Depreciation Principles to the IRR/NPV Methodology 1
8.34 If the IRR or NPV methodology is used, then the notional 2
depreciation over the Access Arrangement Period for each asset or group of 3
assets that form part of the Covered Pipeline is-- 4
(a) for an asset that was in existence at the commencement of the 5
Access Arrangement Period, the difference between the value of 6
that asset in the Capital Base at the commencement of the Access 7
Arrangement Period and the value of that asset that is reflected in 8
the Residual Value; and 9
(b) for a New Facility installed during the Access Arrangement 10
Period, the difference between the actual cost or forecast cost of 11
the Facility (whichever is relevant) and the value of that asset that 12
is reflected in the Residual Value, 13
and, to comply with section 8.33: 14
(c) the Residual Value of the Covered Pipeline should reflect notional 15
depreciation that meets the principles of section 8.33; and 16
(d) the Reference Tariff should change over the Access Arrangement 17
Period in a manner that is consistent with the efficient growth of 18
the market for the Services provided by the Pipeline (and which 19
may involve a substantial portion of the depreciation taking place 20
towards the end of the Access Arrangement Period, particularly 21
where the calculation of the Reference Tariffs has assumed 22
significant market growth and the Pipeline has been sized 23
accordingly). 24
8.35 In implementing the principles in section 8.33 or 8.34, regard must 25
be had to the reasonable cash flow needs for Non Capital Costs, financing 26
cost requirements and similar needs of the Service Provider. 27
Non Capital Costs 28
8.36 Non Capital Costs are the operating, maintenance and other costs 29
incurred in the delivery of the Reference Service. 30
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8.37 A Reference Tariff may provide for the recovery of all Non Capital 1
Costs (or forecast Non Capital Costs, as relevant) except for any such costs 2
that would not be incurred by a prudent Service Provider, acting efficiently, 3
in accordance with accepted and good industry practice, and to achieve the 4
lowest sustainable cost of delivering the Reference Service. 5
Allocation of Revenue (Costs) between Services 6
8.38 Subject to sections 8.40 and 8.43, to the maximum extent that is 7
commercially and technically reasonable, the portion of the Total Revenue 8
(referred to in section 8.4) that a Reference Tariff should be designed to 9
recover (which may be based on forecasts) should include-- 10
(a) all of the Total Revenue that reflects costs incurred (including 11
capital costs) that are directly attributable to the Reference Service; 12
and 13
(b) a share of the Total Revenue that reflects costs incurred (including 14
capital costs) that are attributable to providing the Reference 15
Service jointly with other Services, with this share to be 16
determined in accordance with a methodology that meets the 17
objectives in section 8.1 and is otherwise fair and reasonable. 18
8.39 If the Relevant Regulator requires that a different methodology be 19
used to determine the portion of Total Revenue to be recovered from 20
particular Reference Services pursuant to section 8.38 than that proposed by 21
the Service Provider and described in the Access Arrangement Information, 22
the Relevant Regulator shall in its decision on the Access Arrangement or 23
revisions to an Access Arrangement concerned provide a detailed 24
explanation of the methodology that it requires be used to allocate costs 25
pursuant to section 8.38. 26
8.40 Notwithstanding section 8.38, if the revenue assumed in the Total 27
Revenue calculation under section 8.4 reflects costs (including capital costs) 28
that are attributable to providing the Reference Service jointly with a 29
Rebatable Service, then all or part of the Total Revenue that would have 30
been recovered from the Rebatable Service under section 8.38 (if that 31
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Service was a Reference Service) may be recovered from the Reference 1
Service provided that an appropriate portion of any revenue realised from 2
sales of any such Rebatable Service is rebated to Users of the Reference 3
Service (either through a reduction in the Reference Tariff or through a 4
direct rebate to the relevant User or Users). The structure of such a rebate 5
mechanism should be determined having regard to the following objectives: 6
(a) providing the Service Provider with an incentive to promote the 7
efficient use of Capacity, including through the sale of Rebatable 8
Services; and 9
(b) Users of the Reference Service sharing in the gains from 10
additional sales of Services, including from sales of Rebatable 11
Services. 12
8.41 Alternative approaches to allocating the costs described in 13
section 8.4 may be used provided they have substantially the same effect as 14
the approach outlined in sections 8.38 and 8.40. 15
Allocation of Revenue (Costs) between Users 16
8.42 Subject to section 8.43, a Reference Tariff should, to the maximum 17
extent that is technically and commercially reasonable, be designed so that a 18
particular User's share of the portion of Total Revenue to be recovered from 19
sales of a Reference Service (which may be on the basis of forecasts) is 20
consistent with the principles described in section 8.38. 21
Prudent Discounts 22
8.43 If-- 23
(a) the nature of the market in which a User or Prospective User of a 24
Reference Service or some other Service operates, or the price of 25
alternative fuels available to such a User or Prospective User, is 26
such that the Service, if priced at the nearest Reference Tariff (or, 27
if the Service is not a Reference Service, at the Equivalent Tariff) 28
would not be used by that User or Prospective User; and 29
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(b) a Reference Tariff (or Equivalent Tariff) calculated without regard 1
to revenues from that User or Prospective User would be greater 2
than the Reference Tariff (or Equivalent Tariff) if calculated 3
having regard to revenues received from that User or Prospective 4
User on the basis that it is served at a price less than the Reference 5
Tariff (or Equivalent Tariff), 6
then the Relevant Regulator may, with effect from the commencement of 7
an Access Arrangement Period, permit some or all of any discount given 8
to, or to be given to, that User or Prospective User (where the discount is 9
the difference between the Reference Tariff (or the Equivalent Tariff) and 10
the Tariff actually paid or to be paid by the User or Prospective User) to be 11
either-- 12
(c) recovered from other Users of the Reference Service under 13
section 8.42, in a manner that the Relevant Regulator is satisfied 14
is fair and reasonable; or 15
(d) recovered from the Reference Service or some other Service or 16
Services under section 8.38 in a manner that the Relevant 17
Regulator is satisfied is fair and reasonable. 18
Use of Incentive Mechanisms 19
8.44 The Reference Tariff Policy should, wherever the Relevant 20
Regulator considers appropriate, contain a mechanism that permits the 21
Service Provider to retain all, or a share of, any returns to the Service 22
Provider from the sale of a Reference Service during an Access 23
Arrangement Period that exceeds the level of returns expected at the 24
beginning of the Access Arrangement Period (an Incentive Mechanism), 25
particularly where the additional returns are attributable (at least in part) to 26
the efforts of the Service Provider. Such additional returns may result, 27
amongst other things, from lower Non Capital Costs or greater sales of 28
Services than forecast. 29
8.45 An Incentive Mechanism may include (but is not limited to) the 30
following-- 31
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(a) specifying the Reference Tariff that will apply during each year of 1
the Access Arrangement Period based on forecasts of all relevant 2
variables (and which may assume that the Service Provider can 3
achieve defined efficiency gains) regardless of the realised values 4
for those variables; 5
(b) specifying a target for revenue from the sale of all Services 6
provided by means of the Covered Pipeline, and specifying that a 7
certain proportion of any revenue received in excess of that target 8
shall be retained by the Service Provider and that the remainder 9
must be used to reduce the Tariffs for all Services provided by 10
means of the Covered Pipeline (or to provide a rebate to Users of 11
the Covered Pipeline); and 12
(c) a rebate mechanism for Rebatable Services pursuant to 13
section 8.40 that provides for less than a full rebate of revenues 14
from the Rebatable Services to the Users of the Reference 15
Service. 16
8.46 An Incentive Mechanism should be designed with a view to 17
achieving the following objectives-- 18
(a) to provide the Service Provider with an incentive to increase the 19
volume of sales of all Services, but to avoid providing an artificial 20
incentive to favour the sale of one Service over another; 21
(b) to provide the Service Provider with an incentive to minimise the 22
overall costs attributable to providing those Services, consistent 23
with the safe and reliable provision of such Services; 24
(c) to provide the Service Provider with an incentive to develop new 25
Services in response to the needs of the market for Services; 26
(d) to provide the Service Provider with an incentive to undertake 27
only prudent New Facilities Investment and to incur only prudent 28
Non Capital Costs, and for this incentive to be taken into account 29
when determining the prudence of New Facilities Investment and 30
Non Capital Costs for the purposes of sections 8.16 and 8.37; and 31
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(e) to ensure that Users and Prospective Users gain from increased 1
efficiency, innovation and volume of sales (but not necessarily in 2
the Access Arrangement Period during which such increased 3
efficiency, innovation or volume of sales occur). 4
Certain Reference Tariff Principles Not Subject to Periodic Review 5
8.47 The Reference Tariff Policy may provide that certain principles are 6
fixed for a specified period and not subject to change when a Service 7
Provider submits reviews to an Access Arrangement without the agreement 8
of the Service Provider. A Fixed Principle is an element of the Reference 9
Tariff Policy that can not be changed without the agreement of the Service 10
Provider (Fixed Principle). The period during which the Fixed Principle 11
may not be changed is the Fixed Period (Fixed Period). 12
8.48 A Fixed Principle may include any Structural Element, but in 13
assessing whether any Structural Element may be a Fixed Principle regard 14
must be had to the interests of the Service Provider and the interests of 15
Users and Prospective Users. A Market Variable Element can not be a 16
Fixed Principle. The Fixed Period may be for all or part of the duration of 17
an Access Arrangement, but in determining a Fixed Period regard must be 18
had to the interests of the Service Provider and the interests of Users and 19
Prospective Users. 20
Assessment of Compliance with Section 8 21
8.49 Subject to the requirement for public consultation, the Relevant 22
Regulator may determine its own policies for assessing whether a 23
Reference Tariff meets the requirements of this section 8. For example, the 24
Relevant Regulator may-- 25
(a) draw an inference that an appropriate Incentive Mechanism will 26
result in-- 27
(i) New Facilities Investment that meets the requirements of 28
section 8.16(a) and 8.16(b)(i); and/or 29
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(ii) that Non Capital Costs meet the requirements of 1
section 8.37; 2
(b) draw an inference that an appropriate policy by the Service 3
Provider in relation to New Facilities Investment and/or Non 4
Capital Costs will, if adhered to, result in-- 5
(i) New Facilities Investment that meets the requirements of 6
section 8.16; and/or 7
(ii) Non Capital Costs that meet the requirements of 8
section 8.37; 9
(c) assess whether New Facilities Investment in relation to a number 10
of New Facilities (for example, an investment program) 11
considered together meet the requirements of section 8.16, and 12
then use this to draw an inference as to whether the New Facilities 13
Investment when considered in relation to each individual New 14
Facility meets the requirements of section 8.16. 15
change 16
Code
9.1 This Code may be amended by agreement between the Relevant 17
Ministers of the Scheme Participants in accordance with the Gas Pipelines 18
Access Law if, not earlier than eight weeks prior to the agreement, the 19
NGPAC has provided a report to all Relevant Ministers of the Scheme 20
Participants in accordance with section 9.2 which-- 21
(a) makes a recommendation in relation to an amendment to the 22
Code; 23
(b) sets out reasons for that recommendation; and 24
(c) sets out a summary of the views of any member of the NGPAC 25
who does not agree with the recommendation. 26
9.2 A report by the NGPAC for the purposes of section 9.1(a) must state 27
whether the NGPAC considers the amendment it recommends to be 28
significant or not significant. If the amendment is considered to be 29
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significant, the report must confirm that the recommendation is made 1
following a public consultation process under which the NGPAC has-- 2
(a) prepared an information memorandum setting out the 3
amendment being considered and a statement of why such 4
amendment may be desirable; 5
(b) published a notice in a national daily newspaper which at least-- 6
(i) stated that the NGPAC was considering recommending an 7
amendment to the Code; 8
(ii) stated how copies of the information memorandum could be 9
obtained; and 10
(iii) requested submissions by a specified date, being a date not 11
less than 21 days after the date of the notice; and 12
(c) considered any submissions received within the time period 13
specified in the notice. 14
9.3 In accordance with the Gas Pipelines Access Law, the Relevant 15
Ministers of the Scheme Participants must ensure that-- 16
(a) a copy of each agreement amending the Code is published in the 17
South Australian Government Gazette; and 18
(b) a notice of the making of each such agreement is published in a 19
newspaper circulating generally in Australia. 20
9.4 In accordance with the Gas Pipelines Access Law an amendment to 21
the Code has effect on and from the day on which a copy of the agreement 22
for the amendment is published in the South Australian Government 23
Gazette or, if the agreement provides the amendment is to come into effect 24
on a later day, on that later day. 25
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10. INTERPRETATION 1
this Code applies to Multiple Service Providers 2
How
10.1 (a)This section 10.1 applies if there is more than one Service 3
Provider in connection with a Covered Pipeline, including if-- 4
(i) the Covered Pipeline is owned or operated by two or more 5
persons as a joint venture or partnership; or 6
(ii) the Covered Pipeline is owned and operated by different 7
persons; or 8
(iii) a Covered Pipeline is legally owned by a person or persons 9
on trust for others. 10
In such a case each Service Provider in connection with the Covered 11
Pipeline is referred to in this section 10.1 as a "Participant". 12
(b) If this Code requires or permits something to be done by the 13
Service Provider, that thing may be done by one of the 14
Participants on behalf of all the Participants. So, for example, a 15
proposed Access Arrangement may be submitted under 16
section 2.2 by one Participant on behalf of all Participants. 17
(c) If a provision of this Code refers to the Service Provider bearing 18
any costs, the provision applies as if the provision referred to any 19
of the Participants bearing any costs. 20
(d) If a provision of this Code, other than section 4, refers to the 21
Service Provider doing something, the provision applies as if the 22
provision referred to one or more of the Participants doing the 23
thing on behalf of all the Participants. 24
10.2 Where-- 25
(a) there is more than one Service Provider in connection with a 26
Covered Pipeline; 27
(b) one is the owner and another is the operator; and 28
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(c) responsibility for complying with the obligations imposed by this 1
Code on the Service Provider is allocated among them by their 2
Access Arrangements or their Access Arrangement, 3
each Service Provider is responsible for complying with the obligations 4
allocated to it. 5
How this Code applies to successor Service Providers 6
10.3 If a person becomes a Service Provider in relation to a Covered 7
Pipeline (for example, if the person purchases a Covered Pipeline)-- 8
(a) the Covered Pipeline shall remain a Covered Pipeline; 9
(b) any Access Arrangement approved pursuant to the Code shall 10
continue to apply to the Covered Pipeline concerned despite the 11
change in Service Provider and shall bind the person in the same 12
way it bound other Service Providers immediately before the 13
person became a Service Provider with respect to the Covered 14
Pipeline concerned; and 15
(c) any arbitration decision made pursuant to the Code shall continue 16
to apply to the Covered Pipeline concerned despite the change in 17
Service Provider and shall bind the person in the same way it 18
bound other Service Providers immediately before the person 19
became a Service Provider with respect to the Covered Pipeline 20
concerned. 21
Overviews 22
10.4 The introduction to this Code and the overview in italics at the 23
beginning of each section of this Code do not form part of this Code. 24
10.5 In interpreting a provision of this Code consideration should be 25
given to the introduction to this Code and the overview in italics at the 26
beginning of the relevant section of this Code-- 27
(a) to confirm that the meaning of the provision is the ordinary 28
meaning conveyed by the text of the provision; or 29
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(b) to determine the meaning of the provision when-- 1
(i) the provision is ambiguous or obscure; or 2
(ii) the ordinary meaning conveyed by the text of the provision 3
leads to a result that is manifestly absurd or unreasonable. 4
Notices 5
10.6 Where this Code requires or contemplates the giving or making of 6
any notice, application, submission, opinion, consent, approval, agreement, 7
reason, explanation, report or other communication it must be given or 8
made in writing. 9
Regulatory and Conduct Provisions 10
10.7 For the purposes of the Gas Pipelines Access Law-- 11
(a) The following sections shall be Regulatory Provisions-- 12
· 2.2 and 2.28 (Service Provider must submit a proposed 13
Access Arrangement or proposed revisions to the Access 14
Arrangement, together with Access Arrangement 15
Information); 16
· 2.4 (Relevant Regulator may require more than one Access 17
Arrangement); 18
· 2.9 and 2.30 (Relevant Regulator may require changes to 19
Access Arrangement Information); 20
· 4.1(a), (b), (c), (d), (e), (h) and (i) and 4.2 (basic ring 21
fencing obligations other than in relation to confidential 22
information); 23
· 4.3 (additional ring fencing obligations); 24
· 4.12 (establishing compliance procedures); 25
· 4.13 (report to the Relevant Regulator); 26
· 4.14 (reporting own non-compliance); 27
· 5.1 and 5.2 (establishing information package); 28
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· 5.3 (provide information package); 1
· 5.4 to 5.6 (inclusive) (response to access request); 2
· 5.8 (information to be provided to the market about 3
unutilised contract capacity); 4
· 5.9 (public register of capacity); 5
(b) the following sections shall be Conduct Provisions-- 6
· 3.15 (enforcement of queuing policy); 7
· 4.1(f) and (g) (basic ring fencing obligations in relation to 8
confidential information); 9
· 5.7 (keeping additional information confidential); 10
· 6.16, 6.24(a) and 6.26 (requiring compliance with outcome 11
of arbitration); 12
· 7.1 (Associate contracts). 13
Definitions 14
10.8 The following definitions apply unless the context otherwise 15
requires-- 16
"Access Arrangement" means an arrangement for access to a Covered 17
Pipeline that has been approved by the Relevant Regulator. 18
"Access Arrangement Information" means information provided by a 19
Service Provider to the Relevant Regulator pursuant to section 2.2, 2.3, 20
2.9, 2.28 or 2.30. 21
"Access Arrangement Period" means the period from when an Access 22
Arrangement or revisions to an Access Arrangement take effect (by 23
virtue of a decision pursuant to section 2) until the next Revisions 24
Commencement Date. 25
"Additional Staff" means servants, consultants, independent consultants 26
and agents of a Service Provider who are not Marketing Staff and who 27
the Regulator regards as indirectly involved in the sale or advertising of 28
Services. 29
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"Additional Revenue Policy" has the meaning given in section 3.28(d). 1
"Anticipated Incremental Revenue" means the present value (calculated 2
at the Rate of Return) of the reasonably anticipated future revenue from 3
the sale of Services at the Prevailing Tariffs which would not have 4
been generated without the Incremental Capacity, minus the present 5
value (calculated at the Rate of Return) of the best reasonable forecast 6
of the increase in Non Capital Costs directly attributable to the sale of 7
those Services. 8
"Arbitrator" has the meaning given the Gas Pipelines Access Law. 9
"Associate" has the meaning given in the Gas Pipelines Access Law. 10
"Associate Contract" means; 11
(a) a contract, arrangement or understanding between the Service 12
Provider and an Associate in connection with the provision of a 13
Service; or 14
(b) a contract, arrangement or understanding between the Service 15
Provider and any person in connection with the provision of a 16
Service which provides a direct or indirect benefit to an Associate 17
and which is not an arm's length transaction. 18
"Bare Transfer" has the meaning given in section 3.10. 19
"Capacity" means the measure of the potential of a Covered Pipeline as 20
currently configured to deliver a particular Service between a Receipt 21
Point and a Delivery Point at a point in time. 22
"Capacity Management Policy" has the meaning given in section 3.7. 23
"Capital Base" has the meaning given in section 8.4. 24
"Capital Contribution" has the meaning given in section 8.23. 25
"Charge", for a Service, means the amount that is payable by a User to the 26
Service Provider for that Service. 27
"Code" means this National Third Party Access Code for Natural Gas 28
Pipeline Systems as changed from time to time in accordance with the 29
Gas Pipelines Access Law. 30
"Code Registrar" has the meaning given in the Gas Pipelines Access Law. 31
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"Confidential Information" means information that is by its nature 1
confidential or is known by the other party to be confidential and 2
includes-- 3
(a) any information relating to the financial position of the party and 4
in particular includes information relating to the assets or 5
liabilities of the party and any other matter that affects or may 6
affect the financial position or reputation of the party; 7
(b) information relating to the internal management and structure of 8
the party or the personnel, policies and strategies of the party; 9
(c) information of the party to which the other party has access, other 10
than information referred to in paragraphs (a) and (b), that has 11
any actual or potential commercial value to the first party or to the 12
person or corporation which supplied that information; and 13
(d) any information in the party's possession relating to the other 14
party's clients or suppliers and like information. 15
"Contracted Capacity" means that part of the Capacity which has been 16
reserved by a User or Users pursuant to a contract entered into with the 17
Service Provider. 18
"Contract Carriage" is a system of managing third party access 19
whereby-- 20
(a) the Service Provider normally manages its ability to provide 21
Services primarily by requiring Users to use no more than the 22
quantity of Service specified in a contract; 23
(b) Users normally are required to enter into a contract that specifies a 24
quantity of Service; 25
(c) charges for use of a Service normally are based at least in part 26
upon the quantity of Service specified in a contract; and 27
(d) a User normally has the right to trade its right to obtain a Service 28
to another User. 29
"Core Provisions" means sections 2.24, 3.1 to 3.4 (inclusive), 3.28, 3.33, 30
3.34, 4.1 to 4.4 (inclusive), 6.15, 6.18, 8.1 and 9.1 to 9.4 (inclusive) 31
and this definition of Core Provisions. 32
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"Coverage/Covered" means, in relation to a Pipeline or part of a Pipeline, 1
that that Pipeline or part of a Pipeline is subject to the provisions of this 2
Code pursuant to sections 1.1, 1.13, 1.20 or 1.21. 3
"Covered Pipeline" means, subject to sections 2.3 and 2.4, the whole or a 4
particular part of a Pipeline which is Covered and any extension to, or 5
expansion of the Capacity of, that Covered Pipeline which is to be 6
treated as part of the Covered Pipeline in accordance with the 7
Extensions/Expansions Policy contained in the Access Arrangement 8
for that Covered Pipeline and any expansion of that Covered Pipeline 9
required to be installed under section 6.22. 10
"Delivery Point" means the point or points within the Covered Pipeline at 11
which the custody of Natural Gas is transferred from a Service 12
Provider to a User. 13
"Depreciation" means, in any year and on any asset or group of assets, the 14
amount calculated according to the Depreciation Schedule for that year 15
and for that asset or group of assets. 16
"Depreciation Schedule" has the meaning given in section 8.32. 17
"Developable Capacity" means the difference between the Capacity and 18
the Capacity which would be available if additions of plant and/or 19
pipeline were made, but does not include any extension of the 20
geographic range of a Covered Pipeline. 21
"Equivalent Tariff" means, in relation to a Service that is not a Reference 22
Service, the Tariff that it is reasonably likely would have been set as 23
the Reference Tariff had the Service been a Reference Service. 24
"Exclusivity Right" means a contractual right that by its terms either-- 25
(a) expressly prevents a Service Provider supplying Services to 26
persons who are not parties to the contract; or 27
(b) expressly places a limitation on the Service Provider's ability to 28
supply Services to persons who are not parties to the contract, 29
but does not include a User's contractual right to obtain a certain 30
volume of Services. 31
"Final Approval Request" has the meaning given in section 3.29. 32
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"Fixed Period" has the meaning given in section 8.47. 1
"Fixed Principle" has the meaning given in section 8.47. 2
"Gas Pipelines Access Law", in relation to a Scheme Participant, 3
means-- 4
(a) in the case of South Australia-- 5
(i) the provisions referred to in paragraph (a) of the definition of 6
"Gas Pipelines Access Law" in section 3(1) of the Gas 7
Pipelines Access (South Australia) Act 1997 of South 8
Australia, as applying as a law of South Australia; and 9
(ii) Regulations in force under Part 3 of that Act; and 10
(b) in the case of Western Australia-- 11
(i) the provisions of an Act of Western Australia corresponding 12
to the provisions of the South Australian Act that are 13
referred to in paragraph (a)(i); and 14
(ii) Regulations in force under the Western Australian Act that 15
make provisions corresponding to the provisions of 16
Regulation under Part 3 of the South Australian Act; and 17
(c) in the case of any other Scheme Participant-- 18
(i) the provisions referred to in paragraph (a) of the definition of 19
"Gas Pipelines Access Law" in section 3(1) of the South 20
Australian Act, as applying as a law of that Scheme 21
Participant; and 22
(ii) Regulations in force under Part 3 of the South Australian 23
Act, as applying as a law of that Scheme Participant. 24
"Incentive Mechanism" has the meaning given in section 8.44. 25
"Incremental Capacity" means the increase in Capacity attributable to a 26
New Facility. 27
"Incremental Revenue"' means revenue generated by sales of Incremental 28
Capacity. 29
"Incremental User" is a User that could not have been serviced without 30
the addition of the Incremental Capacity. 31
262
Gas Pipelines Access (Queensland)
ATTACHMENT (continued)
"Information Package" means the Information Package described in 1
section 5.1. 2
"Jurisdictional Area" has the meaning given in the Gas Pipelines Access 3
Law. 4
"Market Carriage" is a system of managing third party access whereby-- 5
(a) the Service Provider does not normally manage its ability to 6
provide Services primarily by requiring Users to use no more 7
than the quantity of Service specified in a contract; 8
(b) Users are normally not required to enter a contract that specifies a 9
quantity of Service; 10
(c) charges for use of Services are normally based on actual usage of 11
Services; and 12
(d) a User normally does not have a right to trade its right to obtain a 13
Service to another User. 14
"Market Variable Element" means a factor that has a value assumed in 15
the calculation of a Reference Tariff, where the value of that factor will 16
vary with changing market conditions during the Access Arrangement 17
Period or in future Access Arrangement Periods, and includes the 18
sales or forecast sales of Services, any index used to estimate the 19
general price level, real interest rates, Non Capital Cost and any costs 20
in the nature of capital costs. 21
"Marketable Parcel" means all or part of a User's Contracted Capacity 22
which the User reasonably expects-- 23
(a) that the User will not utilise and does not require for technical or 24
safety reasons; 25
(b) to be of a size and type capable of being sold to another User or to 26
a Prospective User; and 27
(c) to be able to sell without incurring transaction costs which exceed 28
the price which that User would receive from another User or 29
Prospective User. 30
263
Gas Pipelines Access (Queensland)
ATTACHMENT (continued)
"Marketing Staff" means servants, consultants, independent contractors 1
or agents directly involved in sales, sale provision or advertising 2
(whether or not they are also involved in other functions) but does not 3
include servants, consultants, independent contractors or agents 4
involved only in-- 5
(a) strategic decision making, including the executive officer or 6
officers to whom Marketing Staff report either directly or 7
indirectly; 8
(b) technical, administrative, accounting or service functions. 9
"Natural Gas" has the meaning given in the Gas Pipelines Access Law. 10
"NCC" means the National Competition Council established by 11
section 29A of the Trade Practices Act, 1974 (Commonwealth). 12
"New Facilities Investment" has the meaning given in section 8.16. 13
"New Facility" means-- 14
(a) any extension to, or expansion of the Capacity of, a Covered 15
Pipeline which is to be treated as part of the Covered Pipeline in 16
accordance with the Extensions/Expansions Policy contained in 17
the Access Arrangement for that Covered Pipeline; and 18
(b) any expansion of the Capacity of a Covered Pipeline required to 19
be installed under 6.22. 20
"NGPAC" means the National Gas Pipelines Advisory Committee to be 21
established under the National Gas Agreement (which term has the 22
meaning given in the Gas Pipelines Access Law). 23
"Non Capital Costs" has the meaning given in section 8.4. 24
"Pipeline" has the meaning given in the Gas Pipelines Access Law. 25
"Prevailing Tariff" for a Reference Service means the applicable 26
Reference Tariff, and for any other Service, means the Equivalent 27
Tariff. 28
"Prospective Incremental User" means a person which may become an 29
Incremental User. 30
264
Gas Pipelines Access (Queensland)
ATTACHMENT (continued)
"Prospective Service Provider" means a person who seeks or may seek 1
to become a Service Provider. 2
"Prospective User" means a person who seeks or who is reasonably likely 3
to seek to enter into a contract for a Service and includes a User who 4
seeks or may seek to enter into a contract for an additional Service. 5
"Public Register" means the public register to be kept by the Code 6
Registrar pursuant to section 7.10. 7
"Queuing Policy" has the meaning given in section 3.12. 8
"Rate of Return" has the meaning given in section 8.4. 9
"Rebatable Service" is a Service where-- 10
(a) there is substantial uncertainty regarding expected future revenue 11
from sales of that Service due to the nature of the Service and/or 12
the market for that Service; and 13
(b) the nature of the Service and the market for that Service is 14
substantially different to any Reference Service and the market for 15
that Reference Service. 16
"Receipt Point" means the point or points within the Covered Pipeline at 17
which the custody of Natural Gas is transferred from a User to a 18
Service Provider. 19
"Recoverable Portion" has the meaning given in section 8.18. 20
"Redundant Capital" has the meaning given in section 8.27. 21
"Reference Service" means a Service which is specified in an Access 22
Arrangement and in respect of which a Reference Tariff has been 23
specified in that Access Arrangement. 24
"Reference Tariff" means a Tariff specified in an Access Arrangement as 25
corresponding to a Reference Service and which has the operation that 26
is described in sections 6.13 and 6.18. 27
"Reference Tariff Policy" has the meaning given in section 3.5. 28
"Related Business" means the business of producing, purchasing or 29
selling Natural Gas, but does not include purchasing or selling of 30
Natural Gas to the extent necessary-- 31
265
Gas Pipelines Access (Queensland)
ATTACHMENT (continued)
(a) for the safe and reliable operation of a Covered Pipeline; or 1
(b) to enable a Service Provider to provide balancing services in 2
connection with a Covered Pipeline. 3
"Relevant Appeals Body" has the meaning given in the Gas Pipelines 4
Access Law. 5
"Relevant Minister" has the meaning given in the Gas Pipelines Access 6
Law. 7
"Relevant Regulator" has the meaning given in the Gas Pipelines Access 8
Law. 9
"Residual Value" has the meaning given in section 8.4. 10
"Revisions Commencement Date" has the meaning given in section 3.17. 11
"Revisions Submission Date" has the meaning given in section 3.17. 12
"Scheme Participant" has the meaning given in the Gas Pipelines Access 13
Law. 14
"Service" means a service provided by means of a Covered Pipeline (or 15
when used in section 1 a service provided by means of a Pipeline) 16
including (without limitation)-- 17
(a) haulage services (such as firm haulage, interruptible haulage, spot 18
haulage and backhaul); 19
(b) the right to interconnect with the Covered Pipeline; and 20
(c) services ancillary to the provisions of such services, 21
but does not include the production, sale or purchasing of Natural Gas. 22
"Services Policy" has the meaning given in section 3.1. 23
"Service Provider" has the meaning given in the Gas Pipelines Access 24
Law. 25
"Spare Capacity" means-- 26
(a) in relation to a Covered Pipeline described in the Access 27
Arrangement as a Contract Carriage Pipeline-- 28
266
Gas Pipelines Access (Queensland)
ATTACHMENT (continued)
(i) the difference between the Capacity and the Contracted 1
Capacity; plus 2
(ii) the difference between the Contracted Capacity and the 3
Contracted Capacity which is being used; and 4
(b) in relation to a Covered Pipeline described in the Access 5
Arrangement as a Market Carriage Pipeline, the capacity to 6
provide a Service without impeding the provision of the Service 7
to any other User. 8
"Speculative Investment" has the meaning given in section 8.19. 9
"Speculative Investment Fund" has the meaning given in section 8.19. 10
"Structural Element" means any principle or methodology that is used in 11
the calculation of a Reference Tariff where that principle or 12
methodology is not a Market Variable Element and has been 13
structured for Reference Tariff making purposes over a longer period 14
than a single Access Arrangement Period, and includes the 15
Depreciation Schedule, the financing structure that is assumed for the 16
purposes of section 8.30, and that part of the Rate of Return (calculated 17
pursuant to section 8.30) that exceeds the return that could be earned 18
on an asset that does not bear any market risk. 19
"Surcharge" has the meaning given in sections 8.25 and which has the 20
effect defined in section 6.19. 21
"Tariff:, for a Service, means the criteria that, when applied to a User's 22
characteristics and requirements, determine the Charge that is payable 23
by that User to the Service Provider (this shall not provide any 24
limitation on the Tariff that may apply to a Service). 25
"Tender Approval Request" has the meaning given in section 3.21. 26
"Total Revenue" has the meaning given in section 8.2. 27
"Trading Policy" has the meaning given in section 3.9. 28
"User" means a person who has a current contract for a Service or an 29
entitlement to a Service as a result of an arbitration. 30
267
Gas Pipelines Access (Queensland)
ATTACHMENT (continued)
10.9 Schedule 1 to the Gas Pipelines Access Law contains miscellaneous 1
provisions which relate to the interpretation of the Gas Pipelines Access 2
Law and this Code. 3
4
268
Gas Pipelines Access (Queensland)
ATTACHMENT (continued)
ATTACHMENT A--INFORMATION DISCLOSURE 1
BY A SERVICE PROVIDER TO INTERESTED 2
PARTIES 3
Pursuant to Section 2.7 the following categories of information must be 4
included in the Access Arrangement Information. 5
The specific items of information listed under each category are 6
examples of the minimum disclosure requirements applicable to that 7
category but, pursuant to Sections 2.8 and 2.9, the Relevant Regulator 8
may-- 9
· allow some of the information disclosed to be categorised or 10
aggregated; and 11
· not require some of the specific items of information to be 12
disclosed, 13
if in the Relevant Regulator's opinion it is necessary in order to ensure the 14
disclosure of the information is not unduly harmful to the legitimate 15
business interests of the Service Provider or a User or Prospective User. 16
Category 1: Information Regarding Access & Pricing Principles 17
Tariff determination methodology 18
Cost allocation approach 19
Incentive structures 20
Category 2: Information Regarding Capital Costs 21
Asset values for each pricing zone, service or category of asset 22
Information as to asset valuation methodologies - historical cost or 23
asset valuation 24
Assumptions on economic life of asset for depreciation 25
Depreciation 26
269
Gas Pipelines Access (Queensland)
ATTACHMENT (continued)
Accumulated depreciation 1
Committed capital works and capital investment 2
Description of nature and justification for planned capital investment 3
Rates of return - on equity and on debt 4
Capital structure - debt/equity split assumed 5
Equity returns assumed - variables used in derivation 6
Debt costs assumed - variables used in derivation 7
Category 3: Information Regarding Operations & Maintenance 8
Fixed versus variable costs 9
Cost allocation between zones, services or categories of asset & 10
between regulated/unregulated 11
Wages & Salaries - by pricing zone, service or category of asset 12
Cost of services by others including rental equipment 13
Gas used in operations - unaccounted for gas to be separated from 14
compressor fuel 15
Materials & supply 16
Property taxes 17
Category 4: Information Regarding Overheads & Marketing Costs 18
Total service provider costs at corporate level 19
Allocation of costs between regulated/unregulated segments 20
Allocation of costs between particular zones, services or categories of 21
asset 22
270
Gas Pipelines Access (Queensland)
ATTACHMENT (continued)
Category 5: Information Regarding System Capacity & Volume 1
Assumptions 2
Description of system capabilities 3
Map of piping system - pipe sizes, distances and maximum delivery 4
capability 5
Average daily and peak demand at "city gates" defined by volume and 6
pressure 7
Total annual volume delivered - existing term and expected future 8
volumes 9
Annual volume across each pricing zone, service or category of asset 10
System load profile by month in each pricing zone, service or category 11
of asset 12
Total number of customers in each pricing zone, service or category of 13
asset 14
Category 6: Information Regarding Key Performance Indicators 15
Industry KPIs used by the Service Provider to justify "reasonably 16
incurred" costs 17
Service provider's KPIs for each pricing zone, service or category of 18
asset 19
20
271
Gas Pipelines Access (Queensland)
ATTACHMENT (continued)
SCHEDULE A--PIPELINES TO BE COVERED 1
FROM COMMENCEMENT OF THE CODE 2
This schedule includes a complete list of Gas Transmission and 3
Distribution Systems that are agreed jointly by governments as passing the 4
coverage tests and are to be covered at the commencement of the Code. 5
The assets described within each box shown in this Schedule constitute a 6
Covered Pipeline for the purposes of section 1.1. 7
8
© State of Queensland 1998
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