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This is a Bill, not an Act. For current law, see the Acts databases.
Western Australia
National Gas Access (WA) Bill 2008
CONTENTS
Part 1 -- Preliminary
1. Short title 2
2. Commencement 2
3. Terms used in this Act 2
4. Crown bound 2
5. Application to coastal waters 3
6. Extra-territorial operation 3
6A. Extension to certain pipelines for hauling gas other
than natural gas 3
6B. Interpretation Act 1984 does not apply 4
Part 2 -- National Gas Access
(Western Australia) Law and its
regulations
7. National Gas Access (Western Australia) Law 5
7A. Amendments to Schedule to South Australian Act 5
7B. Regulations amending Schedule 1 consequentially 6
8. National Gas Access (Western Australia)
Regulations 6
9. Terms used in National Gas Access (Western
Australia) Law and its regulations 6
Part 3 -- Regulations for the
National Gas Access (Western
Australia) Law
10. Making regulations 9
11. Regulations may deal with transitional matters 10
009--2 page i
National Gas Access (WA) Bill 2008
Contents
Part 4 -- Cross vesting of functions
and powers
12. Conferral of powers on Commonwealth Minister
and Commonwealth bodies to act in this State 12
13. Conferral of powers on Ministers of other
participating States and Territories to act in this
State 12
14. Conferral of functions or powers on State bodies 12
Part 5 -- General
15. Exemption from taxes 13
16. Actions in relation to cross boundary pipelines 13
17. Conferral of functions and powers on
Commonwealth bodies 15
Part 6 -- Other local provisions
Division 1 -- Economic Regulation Authority
18. Expertise of Director of Energy Safety to be used 16
Division 2 -- Miscellaneous
19. Preservation of certain contracts relating to
privatised DBNGP system 16
20. Transitional provisions for Kalgoorlie to Kambalda
pipeline 17
21. Regulations 17
22. Review of Act 18
Part 7 -- Various Acts amended
Division 1 -- Gas Pipelines Access (Western
Australia) Act 1998
23. Act amended 20
24. Long title replaced 20
25. Preamble deleted 20
26. Section 1 amended 20
27. Sections 2 to 4 deleted 20
28. Section 5 amended 20
29. Sections 6 to 8 deleted 21
30. Parts 2 to 5 deleted 21
31. Part 6 heading replaced 21
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National Gas Access (WA) Bill 2008
Contents
Part 6 -- Review board and arbitrator
32. Part 6 Division 1 deleted 21
33. Part 6 Division 2 heading replaced 21
Division 2 -- Review board
34. Section 49 amended 21
35. Part 6 Division 2 Subdivision 2 heading replaced 21
Subdivision 2 -- Western Australian Electricity
Review Board established
36. Section 50 amended 22
37. Section 57 amended 22
38. Section 59 amended 22
39. Section 61 amended 22
40. Part 6 Division 3 Subdivision 2 heading amended 23
41. Section 62 amended 23
42. Section 73 amended 23
43. Section 74 amended 23
44. Section 76 amended 24
45. Section 77 amended 24
46. Section 81 amended 24
47. Section 82 amended 25
48. Section 87 deleted 25
49. Section 88 deleted 25
50. Parts 7 and 8 deleted 25
51. Schedules deleted 25
Division 2 -- Economic Regulation Authority
Act 2003
52. Act amended 25
53. Section 25 amended 26
54. Section 28 amended 26
55. Section 32 amended 27
Division 3 -- Electricity Industry Act 2004
56. Act amended 27
57. Section 3 amended 27
58. Section 113 deleted 27
59. Section 125 amended 27
60. Section 130 amended 28
61. Section 133 amended 29
Division 4 -- Energy Coordination Act 1994
62. Act amended 29
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National Gas Access (WA) Bill 2008
Contents
63. Section 11J deleted 29
64. Section 11M amended 29
65. Section 11V amended 29
66. Section 11ZAC amended 30
67. Schedule 1A amended 30
Division 5 -- Other Acts amended
68. Constitution Acts Amendment Act 1899 amended 30
69. Financial Management Act 2006 amended 30
70. Freedom of Information Act 1992 amended 31
71. Parliamentary Commissioner Act 1971 amended 31
72. Petroleum Pipelines Act 1969 amended 31
Schedule 1 -- Some modifications to
National Gas Law as in Schedule
to South Australian Act
1. Purpose of this Schedule 32
2. Section 1 modified 32
3. Section 2 modified 32
4. Sections 2A and 2B inserted 33
2A. Meaning of AER modified 33
2B. References to WA application Act 34
5. Chapter 1 Part 1A inserted 34
Part 1A -- Postponement of Natural Gas Services
Bulletin Board provisions
20A. Minister may fix day on which provisions
apply 34
6. Section 29 modified 34
7. Section 30 modified 35
8. Chapter 2 Part 1A inserted 35
Part 1A -- Functions and powers of WA arbitrator
68A. Manner in which WA arbitrator must
perform or exercise certain functions or
powers 35
9. Section 181A inserted 36
181A. Providing information for certain disputes 36
10. Section 231 modified 37
11. Section 240 modified 37
12. Section 290 modified 37
13. Section 294 replaced 38
294. Initial National Gas Rules for WA 38
14. Schedule 1 modified 38
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National Gas Access (WA) Bill 2008
Contents
15. Schedule 2 clause 27A inserted 38
27A. WA modifications of clause 27 38
16. Schedule 2 clause 34 modified 39
17. Schedule 2 clause 50 replaced 40
50. Attempts and incitement 40
18. Schedule 3 clause 1 modified 40
Note -- Western Australian National
Gas Access Law text
Chapter 1 -- Preliminary
Part 1 -- Citation and interpretation
1. Citation 41
2. Definitions 41
2A. Meaning of AER modified 61
2B. References to WA application Act 61
3. Meaning of civil penalty provision 62
4. Meaning of conduct provision 63
5. Meaning of prospective user 63
6. Meaning of regulatory obligation or requirement 64
7. Meaning of regulatory payment 65
8. Meaning of service provider 65
9. Passive owners of scheme pipelines deemed to
provide or intend to provide pipeline services 66
10. Things done by 1 service provider to be treated as
being done by all of service provider group 66
11. Local agents of foreign service providers 67
12. Commissioning of a pipeline 68
13. Pipeline classification criterion 68
14. Jurisdictional determination criteria--cross
boundary distribution pipelines 69
15. Pipeline coverage criteria 69
16. Form of regulation factors 70
17. Effect of separate and consolidated access
arrangements in certain cases 71
18. Certain extensions to, or expansion of the capacity
of, pipelines to be taken to be part of a covered
pipeline 72
19. Expansions of and extensions to covered pipeline
by which light regulation services are provided 72
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National Gas Access (WA) Bill 2008
Contents
20. Interpretation generally 72
Part 1A -- Postponement of Natural Gas
Services Bulletin Board provisions
20A. Minister may fix day on which provisions apply 73
Part 2 -- Participating jurisdictions
21. Participating jurisdictions 73
22. Ministers of participating jurisdictions 73
Part 3 -- National gas objective and principles
Division 1 -- National gas objective
23. National gas objective 74
Division 2 -- Revenue and pricing principles
24. Revenue and pricing principles 74
Division 3 -- MCE policy principles
25. MCE statements of policy principles 75
Part 4 -- Operation and effect of National Gas
Rules
26. National Gas Rules to have force of law 76
Chapter 2 -- Functions and powers
of gas market regulatory entities
Part 1 -- Functions and powers of the
Australian Energy Regulator
Division 1 -- General
27. Functions and powers of the AER 77
28. Manner in which AER must perform or exercise
AER economic regulatory functions or powers 78
29. Delegations 78
30. Confidentiality 79
Division 2 -- Search warrants
31. Definitions 80
32. Authorised person 80
33. Identity cards 80
34. Return of identity cards 81
35. Search warrant 81
36. Announcement of entry and details of warrant to
be given to occupier or other person at premises 82
37. Immediate entry permitted in certain cases 83
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National Gas Access (WA) Bill 2008
Contents
38. Copies of seized documents 83
39. Retention and return of seized documents or things 83
40. Extension of period of retention of documents or
things seized 84
41. Obstruction of persons authorised to enter 85
Division 3 -- General information gathering powers
42. Power to obtain information and documents in
relation to performance and exercise of functions
and powers 86
Division 4 -- Regulatory information notices and
general regulatory information orders
Subdivision 1 -- Interpretation
43. Definitions 88
44. Meaning of contributing service 88
45. Meaning of general regulatory information order 89
46. Meaning of regulatory information notice 90
47. Division does not limit operation of information
gathering powers under Division 3 90
Subdivision 2 -- Serving and making of regulatory
information instruments
48. Service and making of regulatory information
instrument 90
49. Additional matters to be considered for related
provider regulatory information instruments 91
50. AER must consult before publishing a general
regulatory information order 93
51. Publication requirements for general regulatory
information orders 93
52. Opportunity to be heard before regulatory
information notice is served 94
Subdivision 3 -- Form and content of regulatory
information instruments
53. Form and content of regulatory information
instrument 95
54. Further provision about the information that may
be described in a regulatory information instrument 96
55. Further provision about manner in which
information must be provided to AER or kept 97
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National Gas Access (WA) Bill 2008
Contents
Subdivision 4 -- Compliance with regulatory
information instruments
56. Compliance with regulatory information notice
that is served 98
57. Compliance with general regulatory information
order 98
58. Exemptions from compliance with general
regulatory information order 99
59. Assumptions where there is non-compliance with
regulatory information instrument 99
Subdivision 5 -- General
60. Providing to AER false and misleading
information 100
61. Person cannot rely on duty of confidence to avoid
compliance with regulatory information instrument 100
62. Legal professional privilege not affected 101
63. Protection against self-incrimination 101
Division 5 -- Service provider performance reports
64. Preparation of service provider performance
reports 101
Division 6 -- Miscellaneous matters
65. Consideration by the AER of submissions or
comments made to it under this Law or the Rules 103
66. Use of information provided under a notice under
Division 3 or a regulatory information instrument 103
67. AER to inform certain persons of decisions not to
investigate breaches, institute proceedings or serve
infringement notices 103
68. AER enforcement guidelines 104
Part 1A -- Functions and powers of
WA arbitrator
68A. Manner in which WA arbitrator must perform or
exercise certain functions or powers 104
Part 2 -- Functions and powers of the
Australian Energy Market Commission
Division 1 -- General
69. Functions and powers of the AEMC 105
70. Delegations 105
71. Confidentiality 106
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National Gas Access (WA) Bill 2008
Contents
72. AEMC must have regard to national gas objective 106
73. AEMC must have regard to MCE statements of
policy principles in relation to Rule making and
reviews 106
Division 2 -- Rule making functions and powers of
the AEMC
74. Subject matter for National Gas Rules 106
75. Rules relating to MCE or Ministers of participating
jurisdictions require MCE consent 110
76. AEMC must not make Rules that create criminal
offences or impose civil penalties for breaches 110
77. Documents etc applied, adopted and incorporated
by Rules to be publicly available 110
Division 3 -- Committees, panels and working
groups of the AEMC
78. Establishment of committees, panels and working
groups 111
Division 4 -- MCE directed reviews
79. MCE directions 111
80. Terms of reference 112
81. Notice of MCE directed review 113
82. Conduct of MCE directed review 113
Division 5 -- Other reviews
83. Rule reviews by the AEMC 114
Division 6 -- Miscellaneous matters
84. AEMC must publish and make available up to date
versions of Rules 115
85. Fees 115
86. Immunity from personal liability of AEMC
officials 115
Part 3 -- Functions and powers of Ministers of
participating jurisdictions
87. Functions and powers of Minister of this
participating jurisdiction under this Law 116
88. Functions and powers of Commonwealth Minister
under this Law 116
Part 4 -- Functions and powers of the NCC
89. Functions and powers of NCC under this Law 116
90. Confidentiality 117
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National Gas Access (WA) Bill 2008
Contents
Part 5 -- Functions and powers of Tribunal
91. Functions and powers of Tribunal under this Law 118
Chapter 3 -- Coverage and
classification of pipelines
Part 1 -- Coverage of pipelines
Division 1 -- Coverage determinations
92. Application for recommendation that a pipeline be
a covered pipeline 119
93. Application to be dealt with in accordance with the
Rules 119
94. NCC may defer consideration of application in
certain cases 119
95. NCC coverage recommendation 120
96. NCC must not make coverage recommendation if
tender approval decision becomes irrevocable 121
97. Principles governing the making of a coverage
recommendation 121
98. Initial classification decision to be made as part of
recommendation 122
99. Relevant Minister's determination on application 123
100. Principles governing the making of a coverage
determination or decision not to do so 124
101. Operation and effect of coverage determination 125
Division 2 -- Coverage revocation determinations
102. Application for a determination that a pipeline no
longer be a covered pipeline 125
103. Application to be dealt with in accordance with the
Rules 125
104. NCC coverage revocation recommendation 126
105. Principles governing the making of a coverage
revocation recommendation 126
106. Relevant Minister's determination on application 127
107. Principles governing the making of a coverage
revocation determination or decision not to do so 128
108. Operation and effect of coverage revocation
determination 129
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National Gas Access (WA) Bill 2008
Contents
Part 2 -- Light regulation of covered pipeline
services
Division 1 -- Making of light regulation
determinations
Subdivision 1 -- Decisions when pipeline is not a
covered pipeline
109. Application of Subdivision 129
110. NCC's decision on light regulation of pipeline
services 130
Subdivision 2 -- Decisions when pipeline is a covered
pipeline
111. Application of Subdivision 130
112. Application 131
113. Application to be dealt with in accordance with the
Rules 131
114. NCC's decision on light regulation of pipeline
services 131
Subdivision 3 -- Operation and effect of light
regulation determinations
115. When light regulation determinations take effect 132
116. Submission of limited access arrangement for light
regulation services 132
Division 2 -- Revocation of light regulation
determinations
Subdivision 1 -- On advice from service providers
117. Advice by service provider that light regulation
services should cease to be light regulation
services 133
Subdivision 2 -- On application by persons other
than service providers
118. Application (other than by service provider) for
revocation of light regulation determinations 134
119. Decisions on applications made around time of
applications for coverage revocation
determinations 134
120. NCC decision on application where no application
for a coverage revocation recommendation 136
121. Operation and effect of decision of NCC under this
Division 136
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National Gas Access (WA) Bill 2008
Contents
Division 3 -- Principles governing light regulation
determinations
122. Principles governing the making or revoking of
light regulation determinations 137
Division 4 -- Revocation if coverage determination
not made
123. Light regulation determination revoked if coverage
determination not made 138
Division 5 -- Effect of pipeline ceasing to be covered
pipeline
124. Light regulation services cease to be such services
on cessation of coverage of pipeline 139
Division 6 -- AER reviews into designated pipelines
125. AER reviews 139
Part 3 -- Coverage of pipelines the subject of
tender process
126. Tender approval pipelines deemed to be covered
pipelines 140
Part 4 -- Coverage following approval of
voluntary access arrangement
127. Certain pipelines become covered pipelines on
approval of voluntary access arrangement 141
Part 5 -- Reclassification of pipelines
128. Service provider may apply for reclassification of
pipeline 142
129. Reclassification decision 142
130. Effect of reclassification decision 143
Chapter 4 -- General requirements
for provision of covered pipeline
services
Part 1 -- General duties for provision of
pipeline services by covered pipelines
131. Service provider must be legal entity of a specified
kind to provide pipeline services by covered
pipeline 144
132. Submission of full access arrangement or revisions
to applicable full access arrangements 144
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National Gas Access (WA) Bill 2008
Contents
133. Preventing or hindering access 145
134. Supply and haulage of natural gas 147
135. Covered pipeline service provider must comply
with queuing requirements 147
136. Covered pipeline service provider providing light
regulation services must not price discriminate 147
Part 2 -- Structural and operational separation
requirements (ring fencing)
Division 1 -- Interpretation
137. Definitions 148
138. Meaning of marketing staff 148
Division 2 -- Minimum ring fencing requirements
139. Carrying on of related businesses prohibited 150
140. Marketing staff and the taking part in related
businesses 150
141. Accounts that must be prepared, maintained and
kept 150
Division 3 -- Additional ring fencing requirements
142. Division does not limit operation of Division 2 151
143. AER ring fencing determinations 151
144. AER to have regard to likely compliance costs of
additional ring fencing requirements 152
145. Types of ring fencing requirements that may be
specified in an AER ring fencing determination 153
Division 4 -- AER ring fencing exemptions
146. Exemptions from minimum ring fencing
requirements 154
Division 5 -- Associate contracts
147. Service provider must not enter into or give effect
to associate contracts that have anti-competitive
effect 154
148. Service provider must not enter into or give effect
to associate contracts inconsistent with competitive
parity rule 155
Chapter 5 -- Greenfields pipeline
incentives
Part 1 -- Interpretation
149. Definitions 156
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National Gas Access (WA) Bill 2008
Contents
150. International pipeline to be a transmission pipeline
for purposes of Chapter 156
Part 2 -- 15-year no-coverage determinations
151. Application for 15-year no-coverage determination
for proposed pipeline 157
152. Application to be dealt with in accordance with the
Rules 158
153. No-coverage recommendation 158
154. Principles governing the making of a no-coverage
recommendation 159
155. Initial classification decision to be made as part of
recommendation 159
156. Relevant Minister's determination on application 160
157. Principles governing the making of a 15-year
no-coverage determination or decision not to do so 161
158. Effect of 15-year no-coverage determination 162
159. Consequences of Minister deciding against making
15-year no-coverage determination for
international pipeline 162
Part 3 -- Price regulation exemptions
Division 1 -- Application for price regulation
exemption
160. Application for price regulation exemption 163
Division 2 -- Recommendations by NCC
161. Application to be dealt with in accordance with the
Rules 164
162. NCC's recommendation 164
163. General principle governing NCC's
recommendation 164
Division 3 -- Making and effect of price regulation
exemption
164. Making of price regulation exemption 165
165. Principles governing the making of a price
regulation exemption 165
166. Conditions applying to a price regulation
exemption 166
167. Effect of price regulation exemption 167
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National Gas Access (WA) Bill 2008
Contents
Division 4 -- Limited access arrangements
168. Limited access arrangements for pipeline services
provided by international pipeline to which a price
regulation exemption applies 167
Division 5 -- Other matters
169. Other obligations to which service provider is
subject 168
170. Service provider must not price discriminate in
providing international pipeline services 169
Part 4 -- Extended or modified application of
greenfields pipeline incentive
171. Requirement for conformity between pipeline
description and pipeline as constructed 169
172. Power of relevant Minister to amend pipeline
description 170
Part 5 -- Early termination of greenfields
pipeline incentive
173. Greenfields pipeline incentive may lapse 171
174. Revocation by consent 171
175. Revocation for misrepresentation 171
176. Revocation for breach of condition to which a
price regulation exemption is subject 171
177. Exhaustive provision for termination of greenfields
pipeline incentive 171
Chapter 6 -- Access disputes
Part 1 -- Interpretation and application
178. Definitions 172
179. Chapter does not limit how disputes about access
may be raised or dealt with 172
180. No price or revenue regulation for access disputes
relating to international pipeline services 172
Part 2 -- Notification of access dispute
181. Notification of access dispute 173
181A. Providing information for certain disputes 173
182. Withdrawal of notification 174
183. Parties to an access dispute 174
Part 3 -- Access determinations
184. Determination of access dispute 175
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National Gas Access (WA) Bill 2008
Contents
185. Dispute resolution body may require parties to
mediate, conciliate or engage in an alternative
dispute resolution process 175
186. Dispute resolution body may terminate access
dispute in certain cases 175
187. No access determination if dispute resolution body
considers there is genuine competition 176
188. Restrictions on access determinations 177
189. Access determination must give effect to
applicable access arrangement 178
190. Access determinations and past contributions of
capital to fund installations or the construction of
new facilities 178
191. Rules may allow determination that varies
applicable access arrangement for installation of a
new facility 178
192. Access determinations need not require the
provision of a pipeline service 179
193. Content of access determinations 179
Part 4 -- Variation of access determinations
194. Variation of access determination 180
Part 5 -- Compliance with access
determinations
195. Compliance with access determination 180
Part 6 -- Access dispute hearing procedure
196. Hearing to be in private 180
197. Right to representation 181
198. Procedure of dispute resolution body 181
199. Particular powers of dispute resolution body in a
hearing 182
200. Disclosure of information 182
201. Power to take evidence on oath or affirmation 183
202. Failing to attend as a witness 183
203. Failing to answer questions etc 183
204. Intimidation etc 184
205. Party may request dispute resolution body to treat
material as confidential 184
206. Costs 186
207. Outstanding costs are a debt due to party awarded
the costs 187
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National Gas Access (WA) Bill 2008
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Part 7 -- Joint access dispute hearings
208. Definition 188
209. Joint dispute hearing 188
210. Consulting the parties 188
211. Constitution and procedure of dispute resolution
body for joint dispute hearings 189
212. Record of proceedings etc 189
Part 8 -- Miscellaneous matters
213. Correction of access determinations for clerical
mistakes etc 189
214. Reservation of capacity during an access dispute 190
215. Subsequent service providers bound by access
determinations 190
216. Regulations about the costs to be paid by parties to
access dispute 190
Chapter 7 -- The Natural Gas
Services Bulletin Board
Part 1 -- The Bulletin Board Operator
217. The Bulletin Board operator 191
218. Obligation to establish and maintain the Natural
Gas Services Bulletin Board 191
219. Other functions of the Bulletin Board operator 191
220. Powers of the Bulletin Board operator 192
221. Immunity of the Bulletin Board operator 192
222. Fees for services provided 193
Part 2 -- Bulletin Board information
223. Obligation to give information to the Bulletin
Board operator 193
224. Person cannot rely on duty of confidence to avoid
compliance with obligation 194
225. Giving to Bulletin Board operator false and
misleading information 194
226. Immunity of persons giving information to the
Bulletin Board operator 194
Part 3 -- Protection of information
227. Protection of information by the Bulletin Board
operator 195
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National Gas Access (WA) Bill 2008
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228. Protection of information by employees etc of the
Bulletin Board operator 196
Chapter 8 -- Proceedings under the
National Gas Law
Part 1 -- Proceedings generally
229. Instituting civil proceedings under this Law 199
230. Time limit within which proceedings may be
instituted 199
Part 2 -- Proceedings for breaches of this Law,
Regulations or the Rules
231. AER proceedings for breaches of this Law,
Regulations or the Rules that are not offences 200
232. Proceedings for declaration that a person is in
breach of a conduct provision 202
233. Actions for damages by persons for breach of
conduct provision 203
Part 3 -- Matters relating to breaches of this
Law, the Regulations or the Rules
234. Matters for which there must be regard in
determining amount of civil penalty 203
235. Breach of a civil penalty provision is not an
offence 204
236. Breaches of civil penalty provisions involving
continuing failure 204
237. Conduct in breach of more than 1 civil penalty
provision 204
238. Persons involved in breach of civil penalty
provision or conduct provision 205
239. Attempt to breach a civil penalty provision 205
240. Civil penalties payable to the Commonwealth 205
Part 4 -- Judicial review of decisions under this
Law, the Regulations and the Rules
241. Definition 206
242. Applications for judicial review of decisions of the
AEMC 206
243. Applications for judicial review of decisions of the
Bulletin Board operator 207
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National Gas Access (WA) Bill 2008
Contents
Part 5 -- Merits review and other
non-judicial review
Division 1 -- Interpretation
244. Definitions 207
Division 2 -- Merits review for reviewable
regulatory decisions
245. Applications for review 211
246. Grounds for review 211
247. By when an application must be made 212
248. Tribunal must not grant leave unless serious issue
to be heard and determined 212
249. Leave must be refused if application is about an
error relating to revenue amounts below specified
threshold 213
250. Tribunal must refuse to grant leave if submission
not made or is made late 213
251. Tribunal may refuse to grant leave to service
provider in certain cases 214
252. Effect of application on operation of reviewable
regulatory decisions 215
253. Intervention by others in a review without leave 215
254. Leave for reviewable regulatory decision process
participants 215
255. Leave for user or consumer intervener 216
256. Interveners may raise new grounds for review 217
257. Parties to a review under this Division 217
258. Matters that parties to a review may and may not
raise in a review 217
259. Tribunal must make determination 218
260. Target time limit for Tribunal for making a
determination under this Division 219
261. Matters to be considered by Tribunal in making
determination 220
262. Assistance from NCC in certain cases 222
Division 3 -- Tribunal review of AER information
disclosure decisions under section 329
263. Application for review 222
264. Exclusion of public in certain cases 223
265. Determination in the review 223
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National Gas Access (WA) Bill 2008
Contents
266. Tribunal must be taken to have affirmed decision if
decision not made within time 224
267. Assistance from the AER in certain cases 224
Division 4 -- General
268. Costs in a review 224
269. Amount of costs 226
270. Review of Part 226
Part 6 -- Enforcement of access determinations
271. Enforcement of access determinations 226
272. Consent injunctions 227
273. Interim injunctions 228
274. Factors relevant to granting a restraining injunction 228
275. Factors relevant to granting a mandatory injunction 228
276. Discharge or variation of injunction or other order 228
Part 7 -- Infringement notices
277. Power to serve notice 229
278. Form of notice 229
279. Infringement penalty 230
280. AER cannot institute proceedings while
infringement notice on foot 231
281. Late payment of penalty 231
282. Withdrawal of notice 231
283. Refund of infringement penalty 232
284. Payment expiates breach of civil penalty provision 232
285. Payment not to have certain consequences 232
286. Conduct in breach of more than 1 civil penalty
provision 233
Part 8 -- Further provision for corporate
liability for breaches of this Law etc
287. Definition 233
288. Offences and breaches by corporations 233
289. Corporations also in breach if officers and
employees are in breach 233
Chapter 9 -- The making of the
National Gas Rules
Part 1 -- General
Division 1 -- Interpretation
290. Definitions 235
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National Gas Access (WA) Bill 2008
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Division 2 -- Rule making tests
291. Application of national gas objective 237
292. AEMC must take into account form of regulation
factors in certain cases 237
293. AEMC must take into account revenue and pricing
principles in certain cases 238
Part 2 -- Initial National Gas Rules
294. Initial National Gas Rules for WA 238
Part 3 -- Procedure for the making of a Rule by
the AEMC
295. Initiation of making of a Rule 239
296. AEMC may make more preferable Rule in certain
cases 239
297. AEMC may make Rules that are consequential to a
Rule request 239
298. Content of requests for a Rule 240
299. Waiver of fee for Rule requests 240
300. Consolidation of 2 or more Rule requests 240
301. Initial consideration of request for Rule 241
302. AEMC may request further information from Rule
proponent in certain cases 242
303. Notice of proposed Rule 243
304. Publication of non-controversial or urgent final
Rule determination 244
305. "Fast track" Rules where previous public
consultation by gas market regulatory body or an
AEMC review 245
306. Right to make written submissions and comments 247
307. AEMC may hold public hearings before draft Rule
determination 247
308. Draft Rule determination 247
309. Right to make written submissions and comments
in relation to draft Rule determination 249
310. Pre-final Rule determination hearing may be held 249
311. Final Rule determination 250
312. Further draft Rule determination may be made
where proposed Rule is a proposed more
preferable Rule 252
313. Making of Rule 252
314. Operation and commencement of Rule 252
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National Gas Access (WA) Bill 2008
Contents
315. Rule that is made to be published on website and
made available to the public 252
316. Evidence of the National Gas Rules 253
Part 4 -- Miscellaneous provisions relating to
rule making by the AEMC
317. Extension of periods of time in Rule making
procedure 253
318. AEMC may extend period of time for making of
final Rule determination for further consultation 254
319. AEMC may publish written submissions and
comments unless confidential 255
320. AEMC must publicly report on Rules not made
within 12 months of public notification of requests 255
Chapter 10 -- General
Part 1 -- Provisions relating to applicable
access arrangements
321. Protection of certain pre-existing contractual rights 257
322. Service provider may enter into agreement for
access different from applicable access
arrangement 258
323. Applicable access arrangements continue to apply
regardless of who provides pipeline service 258
Part 2 -- Handling of confidential information
Division 1 -- Disclosure of confidential information
held by AER
324. Authorised disclosure of information given to the
AER in confidence 258
325. Disclosure with prior written consent is authorised 259
326. Disclosure for purposes of court and tribunal
proceedings and to accord natural justice 259
327. Disclosure of information given to the AER with
confidential information omitted 259
328. Disclosure of information given in confidence does
not identify anyone 260
329. Disclosure of confidential information authorised
if detriment does not outweigh public benefit 260
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National Gas Access (WA) Bill 2008
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Division 2 -- Disclosure of confidential information
held by relevant Ministers, NCC and AEMC
330. Definitions 263
331. Confidentiality of information received for scheme
procedure purpose and for making of scheme
decision 264
Part 3 -- Miscellaneous
332. Failure to make a decision under this Law or the
Rules within time does not invalidate the decision 266
333. Withdrawal of applications relating to coverage or
reclassification 266
334. Notification of Ministers of participating
jurisdictions of receipt of application 267
335. Relevant Minister may request NCC to give
information or assistance 267
336. Savings and transitionals 268
Schedule 1 -- Subject matter for the
National Gas Rules
Schedule 2 -- Miscellaneous
provisions relating
to interpretation
Part 1 -- Preliminary
1. Displacement of Schedule by contrary intention 279
Part 2 -- General
2. Law to be construed not to exceed legislative
power of Legislature 279
3. Vacant provision 280
4. Material that is, and is not, part of Law 281
5. References to particular Acts and to enactments 281
6. References taken to be included in Act or Law
citation etc 282
7. Interpretation best achieving Law's purpose 282
8. Use of extrinsic material in interpretation 283
9. Compliance with forms 285
Part 3 -- Terms and references
10. Definitions 285
page xxiii
National Gas Access (WA) Bill 2008
Contents
11. Provisions relating to defined terms and gender
and number 290
12. Meaning of may and must etc 290
13. Words and expressions used in statutory
instruments 290
14. References to Minister 291
15. Production of records kept in computers etc 292
16. References to this jurisdiction to be implied 292
17. References to officers and holders of offices 293
18. Reference to certain provisions of Law 293
Part 4 -- Functions and powers
19. Performance of statutory functions 294
20. Power to make instrument or decision includes
power to amend or repeal 295
21. Matters for which statutory instruments may make
provision 295
22. Presumption of validity and power to make 296
23. Appointments may be made by name or office 297
24. Acting appointments 297
25. Powers of appointment imply certain incidental
powers 299
26. Delegation 300
27. Exercise of powers between enactment and
commencement 301
27A. WA modifications of clause 27 304
Part 5 -- Distance and time
28. Matters relating to distance and time 304
Part 6 -- Service of documents
29. Service of documents and meaning of service by
post etc 305
30. Meaning of service by post etc 306
Part 7 -- Evidentiary matters
Division 1 -- Publication on websites
31. Definitions 307
32. Publication of decisions on websites 308
Division 2 -- Evidentiary certificates
33. Definitions 308
34. Evidentiary certificates--AER 309
35. Evidentiary certificates--AEMC 310
page xxiv
National Gas Access (WA) Bill 2008
Contents
36. Evidentiary certificates--NCC 311
37. Evidentiary certificates--relevant Minister and
Commonwealth Minister 312
38. Evidentiary certificates--Bulletin Board operator 312
Part 8 -- Commencement of this Law and
statutory instruments
39. Time of commencement of this Law or a provision
of this Law 313
40. Time of commencement of a Rule 313
Part 9 -- Effect of repeal, amendment or
expiration
41. Time of Law, the Regulations or Rules ceasing to
have effect 313
42. Repealed Law, Regulation or Rule provisions not
revived 314
43. Saving of operation of repealed Law, Regulation or
Rule provisions 314
44. Continuance of repealed provisions 315
45. Law and amending Acts to be read as one 315
Part 10 -- Offences under this Law
46. Penalty at foot of provision 315
47. Penalty other than at foot of provision 316
48. Indictable offences and summary offences 316
49. Double jeopardy 317
50. Attempts and incitement 318
Part 11 -- Instruments under this Law
51. Schedule applies to statutory instruments 318
52. National Gas Rules to be construed so as not to
exceed the legislative power of the Legislature of
this jurisdiction or the powers conferred by this
Law 318
53. Invalid Rules 320
Schedule 3 -- Savings and
transitionals
Part 1 -- General
1. Definitions 321
2. Schedule subject to jurisdictional transitional
arrangements in jurisdictional legislation 324
page xxv
National Gas Access (WA) Bill 2008
Contents
Part 2 -- General savings provision
3. Saving of operation of old access law and Gas
Code 324
Part 3 -- Classification and coverage of
pipelines
4. Pending applications for the classification of
pipelines lapse 325
5. Old scheme coverage determinations 325
6. Old scheme covered transmission pipelines 325
7. Old scheme covered distribution pipelines 325
8. Pending coverage applications under old scheme
(before NCC recommendation) 326
9. Pending relevant Minister decisions in relation to
coverage under old scheme 326
10. Pending relevant Minister decisions in relation to
coverage that are reviewed under old scheme 327
11. Pending old scheme coverage determinations
where no applications for review under old scheme 329
12. Pending old scheme coverage determinations
where applications for review under old scheme on
foot 329
13. Pending old scheme no-coverage determinations
where no applications for review under old scheme 330
14. Pending old scheme no-coverage determinations
where applications for review under old scheme on
foot 331
15. Pending coverage revocation applications under
old scheme (before NCC recommendation) 332
16. Pending relevant Minister decisions in relation to
coverage revocation under old scheme 332
17. Pending relevant Minister decisions in relation to
coverage revocation that are reviewed under old
scheme 333
18. Pending old scheme coverage revocation
determinations where no applications for review
under old scheme 335
19. Pending old scheme coverage revocation
determinations where applications for review
under old scheme on foot 336
page xxvi
National Gas Access (WA) Bill 2008
Contents
20. Pending old scheme coverage non-revocation
determinations where no applications for review
under old scheme 337
21. Pending old scheme coverage non-revocation
determinations where applications for review
under old scheme on foot 337
22. Binding no-coverage determinations 339
23. Pending applications for binding no-coverage
determinations (before NCC recommendation) 339
24. Pending relevant Minister decisions for binding
no-coverage determinations under old scheme 339
25. Pending relevant Minister decisions in relation to
binding no-coverage determinations that are
reviewed under old scheme 340
Part 4 -- Access arrangements
26. Current access arrangements (other than old
scheme limited access arrangements) 342
27. Old scheme limited access arrangements 342
28. Access arrangements submitted but not approved
or rejected before repeal of old scheme 343
29. Access arrangement revisions submitted but not
approved or rejected before repeal of old scheme 344
30. Certain provisions of the Gas Code to continue to
apply to current and proposed access arrangements 345
31. Certain decisions relating to certain access
arrangements are reviewable regulatory decisions
for purposes of Chapter 8 Part 5 of the Law 346
32. Limited access arrangements submitted but not
approved before repeal of old scheme 347
33. Extensions and expansions policies 348
34. Queuing policies 348
Part 5 -- Price regulation exemptions
35. Old scheme price regulation exemptions 348
36. Pending applications for price regulation
exemptions 348
37. Pending Commonwealth Minister decisions for
price regulation exemptions 349
Part 6 -- Structural and operational separation
(ring fencing)
38. Definitions 350
page xxvii
National Gas Access (WA) Bill 2008
Contents
39. Compliance with certain old scheme ring fencing
requirements sufficient compliance for 6 month
period 351
40. Existing waivers of ring fencing obligations 351
41. Additional ring fencing obligations 352
Part 7 -- Access disputes
42. Non-finalised access disputes 352
Part 8 -- Investigations and proceedings
43. Investigations into breaches and possible breaches
of the old access law or Gas Code 353
44. AER may conduct investigations into breaches or
possible breaches of Gas Pipelines Access Law not
investigated by a relevant Regulator 354
45. AER may bring proceedings in relation to breaches
of old access law and Gas Code 354
Part 9 -- Associate contracts
46. Pending associate contract approvals that are
approved after commencement day 355
47. Pending associate contracts approvals that are not
approved 355
48. Approved associate contracts 357
Part 10 -- Other
49. Pending and final tender approval requests lapse 357
50. Decisions approving final approval requests 357
51. Rights under certain change of law provisions in
agreements or deeds not to be triggered 358
52. References to relevant Regulator in access
arrangements 358
53. Old scheme classifications and scheme participant
determinations 358
Defined Terms
page xxviii
Western Australia
LEGISLATIVE ASSEMBLY
(As amended in Committee)
National Gas Access (WA) Bill 2008
A Bill for
An Act to establish a framework to enable third parties to gain
access to certain gas pipeline services, to amend the Gas Pipelines
Access (Western Australia) Act 1998 and various other Acts, and for
other purposes.
The Parliament of Western Australia enacts as follows:
page 1
National Gas Access (WA) Bill 2008
Part 1 Preliminary
s. 1
Part 1 -- Preliminary
1. Short title
This is the National Gas Access (WA) Act 2009.
2. Commencement
5 This Act comes into operation as follows --
(a) sections 1 and 2 -- on the day on which this Act
receives the Royal Assent;
(b) the rest of the Act -- on a day fixed by proclamation,
and different days may be fixed for different provisions.
10 3. Terms used in this Act
(1) In this Act --
National Gas Access (Western Australia) Law means the
provisions applying because of section 7;
National Gas Access (Western Australia) Regulations means
15 the provisions applying because of section 8;
South Australian Act means the National Gas (South Australia)
Act 2008 of South Australia as amended from time to time.
(2) Words and expressions used in the National Gas Access
(Western Australia) Law (whether or not defined in
20 section 9(1)) and in this Act have the same respective meanings
in this Act as they have in that Law.
(3) This section does not apply to the extent that the context or
subject matter otherwise indicates or requires.
4. Crown bound
25 This Act, the National Gas Access (Western Australia) Law and
the National Gas Access (Western Australia) Regulations bind
the Crown in right of the State and, so far as the legislative
power of the Parliament permits, the Crown in all its other
capacities.
page 2
National Gas Access (WA) Bill 2008
Preliminary Part 1
s. 5
5. Application to coastal waters
(1) This Act, the National Gas Access (Western Australia) Law and
the National Gas Access (Western Australia) Regulations apply
in the coastal waters of this State as if the coastal waters were
5 within the limits of the State.
(2) In this section --
adjacent area in respect of the State means the adjacent area of
this jurisdiction under the National Gas Access (Western
Australia) Law (as defined in section 9(1) of this Act);
10 coastal waters, in relation to this State, means any sea that is on
the landward side of the adjacent area in respect of the State but
is not within the limits of the State.
6. Extra-territorial operation
It is the intention of the Parliament that this Act, the National
15 Gas Access (Western Australia) Law and the National Gas
Access (Western Australia) Regulations should, so far as
possible, operate to the full extent of the extra-territorial
legislative power of the State.
6A. Extension to certain pipelines for hauling gas other than
20 natural gas
(1) The National Gas Access (Western Australia) Law and the
National Gas Access (Western Australia) Regulations apply to a
pipeline for hauling gas other than natural gas if the pipeline
constitutes or is part of a system for which a licence is in force
25 under Part 2A of the Energy Coordination Act 1994.
(2) Subsection (1) has effect --
(a) despite the provisions of the National Gas Access
(Western Australia) Law and the National Gas Access
(Western Australia) Regulations; and
30 (b) as if, for the purposes of that subsection, a reference in
that Law and those Regulations to natural gas were
page 3
National Gas Access (WA) Bill 2008
Part 1 Preliminary
s. 6B
amended to include a reference to gas other than natural
gas.
(3) In this section --
gas other than natural gas means substances which --
5 (a) are in a gaseous state at standard temperature and
pressure; and
(b) consist of --
(i) naturally occurring hydrocarbons; or
(ii) a naturally occurring or manufactured mixture of
10 hydrocarbons and non-hydrocarbons, the
principal constituent of which is propane,
propene, butanes, butenes or a mixture of all or
any of those substances or kinds of substances.
6B. Interpretation Act 1984 does not apply
15 (1) The Interpretation Act 1984 does not apply to the National Gas
Access (Western Australia) Law, to regulations under Part 3, or
to Rules under the National Gas Access (Western Australia)
Law.
(2) Despite subsection (1), section 25 of the Interpretation Act 1984
20 applies to the making of regulations under Part 3.
page 4
National Gas Access (WA) Bill 2008
National Gas Access (Western Australia) Law and its Part 2
regulations
s. 7
Part 2 -- National Gas Access (Western Australia)
Law and its regulations
7. National Gas Access (Western Australia) Law
(1) The Western Australian National Gas Access Law text --
5 (a) applies as a law of Western Australia; and
(b) as so applying may be referred to as the National Gas
Access (Western Australia) Law.
(2) In subsection (1) --
Western Australian National Gas Access Law text means the
10 text that results from modifying the National Gas Law, as set
out in the South Australian Act Schedule for the time being in
force, to give effect to section 7A(3) and (4) and Schedule 1.
7A. Amendments to Schedule to South Australian Act
(1) This section applies if, after the day on which the South
15 Australian Act receives the Royal Assent, the Parliament of
South Australia enacts a provision to make an amendment to the
Schedule to the South Australian Act as in force from time to
time (an SA Schedule amendment).
(2) The Minister may by order declare that an SA Schedule
20 amendment is relevant to the Western Australian National Gas
Access Law text.
(3) If the Minister has not declared that an SA Schedule amendment
is relevant, the Western Australian National Gas Access Law
text remains as if the amendment had not been made.
25 (4) If the Minister has declared that an SA Schedule amendment is
relevant, the Western Australian National Gas Access Law text
remains, until the beginning of the day fixed by subsection (5),
as if the amendment had not been made.
page 5
National Gas Access (WA) Bill 2008
Part 2 National Gas Access (Western Australia) Law and its
regulations
s. 7B
(5) The day fixed is the day on which the order is published in the
Government Gazette unless a later day is specified in the order,
in which case it is the day specified.
(6) Subsection (4) does not give an SA Schedule amendment any
5 earlier effect in this State than it has in South Australia.
7B. Regulations amending Schedule 1 consequentially
The Governor may make regulations under this section
amending Schedule 1 as is necessary or expedient to deal with
consequences of --
10 (a) an SA Schedule amendment; or
(b) giving effect to section 7A(3) or (4).
8. National Gas Access (Western Australia) Regulations
The regulations in force for the time being under Part 3 --
(a) apply as regulations in force for the purposes of the
15 National Gas Access (Western Australia) Law; and
(b) as so applying may be referred to as the National Gas
Access (Western Australia) Regulations.
9. Terms used in National Gas Access (Western Australia)
Law and its regulations
20 (1) In the National Gas Access (Western Australia) Law and the
National Gas Access (Western Australia) Regulations --
adjacent area of another participating jurisdiction means the
offshore area of a State other than this State or of the Northern
Territory within the meaning given in section 7 of the Offshore
25 Petroleum Act 2006 of the Commonwealth;
adjacent area of this jurisdiction means the offshore area of the
State within the meaning given in section 7 of the Offshore
Petroleum Act 2006 of the Commonwealth;
Court means the Supreme Court of Western Australia;
page 6
National Gas Access (WA) Bill 2008
National Gas Access (Western Australia) Law and its Part 2
regulations
s. 9
designated Minister means the Minister to whom the
administration of this Act has been committed;
dispute resolution body means --
(a) in relation to an ERA pipeline, the WA arbitrator;
5 (b) in relation to any other pipeline, the Australian Energy
Regulator established by section 44AE of the Trade
Practices Act 1974 of the Commonwealth;
ERA pipeline means a pipeline other than --
(a) an international pipeline; or
10 (b) any other pipeline for which section 2 of the National
Gas Access (Western Australia) Law defines the
"relevant Minister" to mean a person other than the
Minister responsible for the administration of this Act;
Legislature of this jurisdiction means the Parliament of
15 Western Australia;
National Gas Law or this Law means the National Gas Access
(Western Australia) Law;
regulator means --
(a) in relation to an ERA pipeline, the ERA;
20 (b) in relation to any other pipeline, the Australian Energy
Regulator established by section 44AE of the Trade
Practices Act 1974 of the Commonwealth;
this jurisdiction means the State of Western Australia;
WA arbitrator means the Western Australian Energy Disputes
25 Arbitrator under Part 6 Division 3 of the Energy Arbitration and
Review Act 1998.
(2) A pipeline that is an offshore Western Australian pipeline as
defined in section 3(1) of the Australian Energy Market
Act 2004 of the Commonwealth is to be regarded as being
30 situated wholly within Western Australia for the purpose of
determining who is the relevant Minister under the National Gas
Access (Western Australia) Law.
page 7
National Gas Access (WA) Bill 2008
Part 2 National Gas Access (Western Australia) Law and its
regulations
s. 9
(3) The Acts Interpretation Act 1915, and other Acts, of South
Australia do not apply to the National Gas Law as set out in the
Schedule to the South Australian Act in its application, with
modifications, as a law of Western Australia.
page 8
National Gas Access (WA) Bill 2008
Regulations for the National Gas Access (Western Australia) Part 3
Law
s. 10
Part 3 -- Regulations for the National Gas Access
(Western Australia) Law
10. Making regulations
(1) The Governor, acting with the advice and consent of the
5 Executive Council, may make regulations contemplated by, or
necessary or expedient for giving effect to, the National Gas
Access (Western Australia) Law.
(2) Without limiting subsection (1), the regulations may prescribe
fees in respect of any matter under the National Gas Access
10 (Western Australia) Law, and provide for the waiver or refund
of such fees.
(3) Regulations under this Part may --
(a) be of general or limited application;
(b) vary according to the persons, times, places or
15 circumstances to which they are expressed to apply;
(c) in relation to fees, prescribe differential fees or provide
for fees to be determined according to prescribed
factors.
(4) Once the Governor has made a regulation prescribing 1 or more
20 pipelines to be designated pipelines for the purposes of the
definition of designated pipeline in section 2 of the National
Gas Access (Western Australia) Law, the Governor cannot
make another regulation that prescribes any other pipeline to be
a designated pipeline.
25 (5) Regulations under this Part may be made only on the unanimous
recommendation of the Ministers of the participating
jurisdictions.
(6) Regulations under this Part have to be published in the
Government Gazette.
page 9
National Gas Access (WA) Bill 2008
Part 3 Regulations for the National Gas Access (Western Australia)
Law
s. 11
11. Regulations may deal with transitional matters
(1) Without limiting the generality of section 10, the regulations
may deal with matters of a transitional nature relating to the
transition from the application of provisions of the Gas
5 Pipelines Access Law to the application of provisions of the
National Gas Access (Western Australia) Law.
(2) Any provision of the regulations that deals with a matter of a
transitional nature under subsection (1) may be expressed to
take effect from a time that is earlier than the beginning of the
10 day on which the regulations containing the provision are made,
not being a time earlier than the commencement of this section.
(3) If a provision of the regulations is expressed to take effect from
a time that is earlier than the beginning of the day on which the
regulations containing the provision are published in the
15 Government Gazette, the provision must also provide that the
provision does not operate so as --
(a) to prejudicially affect the rights of a person (other than
the rights of a Minister of a participating jurisdiction or
an entity involved in the administration of the Gas
20 Pipelines Access Law or the National Gas Access
(Western Australia) Law) existing before the day of
publication of those regulations; or
(b) to impose liabilities on any person (other than liabilities
imposed on a Minister of a participating jurisdiction or
25 an entity involved in the administration of the Gas
Pipelines Access Law or the National Gas Access
(Western Australia) Law) in respect of anything done or
omitted to be done before the day of publication of those
regulations.
30 (4) In this section --
Gas Pipelines Access Law has the meaning that the term had
under section 3(1) of the Gas Pipelines Access (Western
Australia) Act 1998 before the commencement of this section;
page 10
National Gas Access (WA) Bill 2008
Regulations for the National Gas Access (Western Australia) Part 3
Law
s. 11
matters of a transitional nature includes matters of an
application or savings nature;
National Gas Access (Western Australia) Law means the
provisions applying from time to time because of section 7, and
5 it includes Rules made and in force under those provisions from
time to time.
page 11
National Gas Access (WA) Bill 2008
Part 4 Cross vesting of functions and powers
s. 12
Part 4 -- Cross vesting of functions and powers
12. Conferral of powers on Commonwealth Minister and
Commonwealth bodies to act in this State
(1) The Commonwealth Minister and the Commonwealth bodies
5 have power to do acts in or in relation to this State in the
performance or exercise of a function or power expressed to be
conferred on them respectively by the national gas legislation of
another participating jurisdiction.
(2) In subsection (1) --
10 Commonwealth bodies means any of the following:
(a) the AER;
(b) the NCC;
(c) the Tribunal.
13. Conferral of powers on Ministers of other participating
15 States and Territories to act in this State
The Minister of another participating jurisdiction has power to
do acts in or in relation to this State in the performance or
exercise of a function or power expressed to be conferred on the
Minister by the national gas legislation of another participating
20 jurisdiction.
14. Conferral of functions or powers on State bodies
If the national gas legislation of another participating
jurisdiction confers a function or power on the Minister or
another agency or instrumentality of this State constituted by a
25 law of this State, the Minister or the other agency or
instrumentality --
(a) may perform that function or exercise that power; and
(b) may do all things necessary or expedient to be done in
connection with the performance or exercise of that
30 function or power.
page 12
National Gas Access (WA) Bill 2008
General Part 5
s. 15
Part 5 -- General
15. Exemption from taxes
(1) Any duty or other tax imposed by or under a law of this State is
not payable in relation to --
5 (a) an exempt matter; or
(b) anything done (including, for example, a transaction
entered into or an instrument or document made,
executed, lodged or given) because of, or arising out of,
an exempt matter.
10 (2) In this section --
exempt matter means a transfer of assets or liabilities --
(a) that is made for the purpose of ensuring that a person
does not carry on a business of producing, purchasing or
selling natural gas or processable gas in breach of any
15 ring fencing requirements of any national gas legislation
or for the purpose of the separation of certain businesses
or business activities from other businesses or business
activities of a person as required by an AER ring fencing
determination; and
20 (b) that the Minister and the Treasurer declare from time to
time, by order notice of which is published in the
Government Gazette, to be an exempt matter for the
purposes of this section.
16. Actions in relation to cross boundary pipelines
25 (1) If a pipeline is a cross boundary pipeline, any action taken under
the national gas legislation of a participating jurisdiction in
whose jurisdictional area a part of the pipeline is situated --
(a) by, or in relation to, a relevant Minister; or
page 13
National Gas Access (WA) Bill 2008
Part 5 General
s. 16
(b) by the Court within the meaning that term has in that
legislation in relation to action taken by, or in relation
to, a relevant Minister,
is taken also to be taken under the national gas legislation of
5 each participating jurisdiction in whose jurisdictional area a part
of the pipeline is situated (that other legislation) --
(c) by, or in relation to, a relevant Minister within the
meaning that term has in that other legislation; or
(d) by the Court within the meaning that term has in that
10 other legislation,
as the case requires.
(2) Despite subsection (1), no proceeding for judicial review or for
a declaration, injunction, writ, order or remedy may be brought
before the Court to challenge or question any action, or
15 purported action, of a relevant Minister taken, or purportedly
taken, in relation to a cross boundary distribution pipeline
unless this jurisdiction has been determined to be the
participating jurisdiction with which the cross boundary
distribution pipeline is most closely connected.
20 (3) A reference in this section --
(a) to an action that is taken includes a reference to --
(i) a decision or determination that is made; or
(ii) an omission that is made;
(b) to a purported action that is purportedly taken includes a
25 reference to a purported decision or determination that is
purportedly made.
(4) In this section --
cross boundary pipeline means --
(a) a cross boundary transmission pipeline; or
30 (b) a cross boundary distribution pipeline.
page 14
National Gas Access (WA) Bill 2008
General Part 5
s. 17
17. Conferral of functions and powers on Commonwealth
bodies
(1) Clause 2 of Schedule 2 to the National Gas Access (Western
Australia) Law has effect in relation to the operation of any
5 provision of this Act, or any regulation forming part of the
National Gas Access (Western Australia) Regulations, as if the
provision or regulation formed part of the National Gas Access
(Western Australia) Law.
(2) Subsection (1) does not limit the effect that a provision or
10 regulation would validly have apart from the subsection.
page 15
National Gas Access (WA) Bill 2008
Part 6 Other local provisions
Division 1 Economic Regulation Authority
s. 18
Part 6 -- Other local provisions
Division 1 -- Economic Regulation Authority
18. Expertise of Director of Energy Safety to be used
In performing its functions under this Act the ERA is to make
5 appropriate use of the expertise of the Director of Energy Safety
under the Energy Coordination Act 1994 in relation to safety or
technical standards in the gas supply industry.
Division 2 -- Miscellaneous
19. Preservation of certain contracts relating to privatised
10 DBNGP system
(1) The national provisions do not affect the continuance or
operation of an exempt contract.
(2) Despite the repeal of the Gas Pipelines Access (Western
Australia) Act 1998 section 96, that section continues to apply
15 to a contract other than an exempt contract as if the references
in section 96(1) and (2)(b) to "the Code" were references to the
relevant national provisions.
(3) In this section --
exempt contract --
20 (a) means a contract in respect of which a declaration under
the Gas Corporation Act 1994 Schedule 5 clause 6 was
in force immediately before the coming into operation of
the Dampier to Bunbury Pipeline Act 1997 Schedule 4
clause 17(4); and
25 (b) includes a contract entered into --
(i) in substitution for a contract referred to in
paragraph (a) or any provision of such a contract;
or
(ii) by way of amendment of a contract referred to in
30 paragraph (a) or subparagraph (i);
page 16
National Gas Access (WA) Bill 2008
Other local provisions Part 6
Miscellaneous Division 2
s. 20
national provisions means the National Gas Access (Western
Australia) Law, the Rules made under that Law, and the
National Gas Access (Western Australia) Regulations;
relevant national provisions means any of the national
5 provisions having the same purpose as a provision of the Gas
Code, as defined in the National Gas Access (Western
Australia) Law section 2.
20. Transitional provisions for Kalgoorlie to Kambalda pipeline
(1) This section applies to the pipeline to which licence PL27,
10 granted under the Petroleum Pipelines Act 1969, applies.
(2) A service provider has a period of 6 months after the day on
which section 30 comes into operation (the transitional period)
within which to --
(a) submit to the ERA an access arrangement; or
15 (b) apply for a determination that the pipeline be no longer a
covered pipeline; or
(c) apply under section 112 of the National Gas Access
(Western Australia) Law for a light regulation
determination.
20 (3) Despite section 111(b) of the National Gas Access (Western
Australia) Law, an application may be made in accordance with
subsection (2)(c), even though there is no applicable access
arrangement for the pipeline, and Chapter 3 Part 2 Division 1
Subdivision 1 of that Law applies to the application.
25 21. Regulations
(1) Without limiting the power to make regulations under Part 3,
the Governor acting with the advice and consent of the
Executive Council may make other regulations contemplated
by, or necessary or expedient for giving effect to, this Act.
30 (2) Regulations under subsection (1) may make provision for and in
relation to the imposition and payment of fees and charges in
connection with the performance of functions the arbitrator has
page 17
National Gas Access (WA) Bill 2008
Part 6 Other local provisions
Division 2 Miscellaneous
s. 22
under this Act, to the extent that the costs connected with
performing those functions are not covered by fees under the
National Gas Access (Western Australia) Regulations.
(3) If it is inappropriate to prescribe a set fee or charge in
5 connection with the performance of a particular function the
regulations may provide for the method of calculating the fee or
charge, including calculation according to the cost of
performing that function.
(4) Despite the National Gas Access (Western Australia) Law or
10 Rules made under that Law, regulations under subsection (1)
may make provision for further matters to affect the setting of a
reference tariff for a reference service provided by means of a
distribution pipeline to the extent that the service is used for the
supply of natural gas to an end user prescribed by the
15 regulations to be a small use customer for the purposes of this
subsection.
(5) Regulations under subsection (1) may prescribe a period ending
not later than 31 December 2031 as a period during which the
fixed principle referred to in clause 7.13(a)(ii) of the Revised
20 Access Arrangement for the Dampier to Bunbury Natural Gas
Pipeline dated 21 November 2006 applies despite anything in
the National Gas Access (Western Australia) Law or Rules
made under that Law, and during a period prescribed the fixed
principle applies accordingly.
25 22. Review of Act
(1) The Minister is to cause a person, other than an officer of a
department or body for which the Minister is responsible, to
carry out a review of the operation and effectiveness of this Act
as soon as is practicable after the review day described in
30 subsection (2) and, in the course of that review, consideration is
to be given, and regard is to be had, to --
(a) the effectiveness of the operations of the ERA and the
WA arbitrator; and
page 18
National Gas Access (WA) Bill 2008
Other local provisions Part 6
Miscellaneous Division 2
s. 22
(b) the need for the continuation of section 21(4) and (5);
and
(c) any other matters that appear to the Minister to be
relevant to the operation and effectiveness of this Act.
5 (2) The review day is 1 July 2013 unless, before that day a licence
is granted under the Petroleum Pipelines Act 1969 for a pipeline
that is to be partly in the jurisdictional area of this State and
partly in the jurisdictional area of the Northern Territory or
South Australia, in which case the review day is the day on
10 which the licence is granted.
(3) The person carrying out the review is to prepare and give to the
Minister a report based on the review within sufficient time to
enable the Minister to comply with subsection (4).
(4) The Minister is to prepare a response to the report and, as soon
15 as is practicable after the response is prepared, and in any event
not more than 12 months after the review day described in
subsection (2), cause the report and the response to be laid
before each House of Parliament.
page 19
National Gas Access (WA) Bill 2008
Part 7 Various Acts amended
Division 1 Gas Pipelines Access (Western Australia) Act 1998
s. 23
Part 7 -- Various Acts amended
Division 1 -- Gas Pipelines Access (Western Australia) Act 1998
23. Act amended
This Division amends the Gas Pipelines Access (Western
5 Australia) Act 1998.
24. Long title replaced
Delete the long title and insert:
An Act to provide for a review board and for an official who
10 may arbitrate certain disputes, and for related purposes.
25. Preamble deleted
Delete the preamble.
26. Section 1 amended
15 In section 1 delete "Gas Pipelines Access (Western Australia)
Act 1998." and insert:
Energy Arbitration and Review Act 1998.
20 27. Sections 2 to 4 deleted
Delete sections 2 to 4.
28. Section 5 amended
In section 5 delete "bind" and all of the section before it and
insert:
25
This Act binds
page 20
National Gas Access (WA) Bill 2008
Various Acts amended Part 7
Gas Pipelines Access (Western Australia) Act 1998 Division 1
s. 29
29. Sections 6 to 8 deleted
Delete sections 6 to 8.
30. Parts 2 to 5 deleted
Delete Parts 2 to 5.
5 31. Part 6 heading replaced
Delete the heading to Part 6 and insert:
Part 6 -- Review board and arbitrator
10 32. Part 6 Division 1 deleted
Delete Part 6 Division 1.
33. Part 6 Division 2 heading replaced
Delete the heading to Part 6 Division 2 and insert:
15 Division 2 -- Review board
34. Section 49 amended
In section 49 in the definition of Board delete "Western
Australian Gas Review Board" and insert:
20
Western Australian Electricity Review Board
35. Part 6 Division 2 Subdivision 2 heading replaced
Delete the heading to Part 6 Division 2 Subdivision 2 and insert:
25
Subdivision 2 -- Western Australian Electricity Review
Board established
page 21
National Gas Access (WA) Bill 2008
Part 7 Various Acts amended
Division 1 Gas Pipelines Access (Western Australia) Act 1998
s. 36
36. Section 50 amended
(1) In section 50(1) delete "Western Australian Gas Review Board"
and insert:
5 Western Australian Electricity Review Board
(2) After section 50(1) insert:
(2A) The Board has functions under the Electricity Industry
10 Act 2004.
37. Section 57 amended
In section 57(1) delete "the Gas Pipelines Access (Western
Australia) Law and".
15 38. Section 59 amended
In section 59(4) delete "Subject to the Gas Pipelines Access
(Western Australia) Law, a party" and insert:
A party
20
39. Section 61 amended
In section 61 in the definition of arbitrator delete "Gas" and
insert:
25 Energy
page 22
National Gas Access (WA) Bill 2008
Various Acts amended Part 7
Gas Pipelines Access (Western Australia) Act 1998 Division 1
s. 40
40. Part 6 Division 3 Subdivision 2 heading amended
In the heading to Part 6 Division 3 Subdivision 2 delete "Gas"
and insert:
5 Energy
41. Section 62 amended
In section 62(1) delete "Gas" and insert:
10 Energy
42. Section 73 amended
In section 73(1):
(a) delete paragraphs (a) and (c) and insert:
15
(a) by or under the National Gas Access (WA)
Act 2009; or
(b) by or under the Electricity Industry Act 2004;
or
20
(b) after paragraph (d) delete "and" and insert:
or
25 43. Section 74 amended
After section 74(2) insert:
(3) Regulations referred to in subsection (1) may make
provision for and in relation to the imposition and
30 payment of fees and charges in connection with the
page 23
National Gas Access (WA) Bill 2008
Part 7 Various Acts amended
Division 1 Gas Pipelines Access (Western Australia) Act 1998
s. 44
performance of functions the arbitrator has under those
regulations.
(4) If it is inappropriate to prescribe a set fee or charge in
connection with the performance of a particular
5 function the regulations may provide for the method of
calculating the fee or charge, including calculation
according to the cost of performing that function.
44. Section 76 amended
10 In section 76:
(a) delete "under the Code" and insert:
in performing functions referred to in section 73(1)
15 (b) delete "local Regulator as defined in section 11." and
insert:
Economic Regulation Authority established by the
Economic Regulation Authority Act 2003.
20
45. Section 77 amended
In section 77 delete "provided for by the Gas Pipelines Access
(Western Australia) Law and the regulations" and insert:
25 involved in performing the arbitrator's functions
46. Section 81 amended
In section 81 delete "under this Act".
page 24
National Gas Access (WA) Bill 2008
Various Acts amended Part 7
Economic Regulation Authority Act 2003 Division 2
s. 47
47. Section 82 amended
(1) In section 82(2) after "called" insert:
the "Western Australian Energy Disputes Arbitrator
5 Account", and it is to be a continuation of the account
formerly called
(2) Delete section 82(3)(a)(ii) and insert:
10 (ii) fees and charges payable to the
arbitrator or the Board in connection
with the performance of the functions of
the arbitrator or the Board;
15 48. Section 87 deleted
Delete section 87.
49. Section 88 deleted
Delete section 88.
50. Parts 7 and 8 deleted
20 Delete Parts 7 and 8.
51. Schedules deleted
Delete Schedule 1 and its Appendix and Schedules 2 and 3.
Division 2 -- Economic Regulation Authority Act 2003
52. Act amended
25 This Division amends the Economic Regulation Authority
Act 2003.
page 25
National Gas Access (WA) Bill 2008
Part 7 Various Acts amended
Division 2 Economic Regulation Authority Act 2003
s. 53
53. Section 25 amended
In section 25:
(a) delete paragraph (c) and insert:
5 (c) the functions it is given by or under the
National Gas Access (WA) Act 2009; and
(b) after each of paragraphs (a), (b) and (d) insert:
10 and
54. Section 28 amended
(1) In section 28(3)(b) delete "referred to in section 36(1) of the
Gas Pipelines Access (Western Australia) Act 1998 or" and
15 insert:
given by or under the National Gas Access
(WA) Act 2009 or referred to in
20 (2) In section 28(5)(b) delete "Gas Pipelines Access (Western
Australia) Act 1998, must send a copy of the direction to the
Code Registrar within the meaning of that Act." and insert:
National Gas Access (WA) Act 2009, must send
25 a copy of the direction to the Australian Energy
Market Commission established by section 5 of
the Australian Energy Market Commission
Establishment Act 2004 of South Australia.
page 26
National Gas Access (WA) Bill 2008
Various Acts amended Part 7
Electricity Industry Act 2004 Division 3
s. 55
55. Section 32 amended
In section 32(1) delete "Gas Pipelines Access (Western
Australia) Law" and insert:
5 National Gas Access (Western Australia) Law
Division 3 -- Electricity Industry Act 2004
56. Act amended
This Division amends the Electricity Industry Act 2004.
10 57. Section 3 amended
In section 3:
(a) in the definition of arbitrator delete "Gas Pipelines
Access (Western Australia) Act 1998" and insert:
15 Energy Arbitration and Review Act 1998
(b) in the definition of Board delete "Gas Pipelines Access
(Western Australia) Act 1998" and insert:
20 Energy Arbitration and Review Act 1998
58. Section 113 deleted
Delete section 113.
59. Section 125 amended
25 (1) Delete section 125(2)(b) and insert:
(b) make other provisions that it is necessary or
convenient to make,
page 27
National Gas Access (WA) Bill 2008
Part 7 Various Acts amended
Division 3 Electricity Industry Act 2004
s. 60
(2) After section 125(2) insert:
(3A) Regulations that, immediately before the day on which
the National Gas Access (WA) Act 2009 section 59(1)
5 comes into operation, apply provisions of the Gas
Pipelines Access (Western Australia) Act 1998
continue to have the effect they had immediately
before that day until the contrary intention appears
from a regulation made after that day.
10
60. Section 130 amended
(1) In section 130(1) in the definition of gas pipelines access
provisions delete "Schedule 1." and insert:
15 Schedule 1 as in force immediately before the day on
which the National Gas Access (WA) Act 2009
section 51 deleted it.
(2) In section 130(8) delete "Gas Pipelines Access (Western
20 Australia)" and insert:
Energy Arbitration and Review
(3) Delete section 130(9) and insert:
25
(9) For proceedings to which subsection (8) extends the
provisions described in that subsection, sections 57(1)
and 59(4) of those provisions apply only to the extent
that it is consistent with the Code for them to apply.
30
page 28
National Gas Access (WA) Bill 2008
Various Acts amended Part 7
Energy Coordination Act 1994 Division 4
s. 61
61. Section 133 amended
In section 133(1) before "in connection with" insert:
in relation to the imposition and payment of fees and
5 charges in connection with any matter under this Act,
including
Division 4 -- Energy Coordination Act 1994
62. Act amended
10 This Division amends the Energy Coordination Act 1994.
63. Section 11J deleted
Delete section 11J.
64. Section 11M amended
In section 11M(5) delete paragraph (a) and "or" after it and
15 insert:
(a) the National Gas Access (Western Australia)
Law; or
20 65. Section 11V amended
Delete section 11V(2) and insert:
(2) A licence does not have effect to the extent that it
would be inconsistent with the National Gas Access
25 (Western Australia) Law.
page 29
National Gas Access (WA) Bill 2008
Part 7 Various Acts amended
Division 5 Other Acts amended
s. 66
66. Section 11ZAC amended
Delete section 11ZAC(4)(b) and insert:
(b) an access arrangement under the National Gas
5 Access (Western Australia) Law.
67. Schedule 1A amended
In Schedule 1A in paragraph (a) delete "Gas Pipelines Access
(Western Australia) Law;" and insert:
10
National Gas Access (Western Australia) Law;
Division 5 -- Other Acts amended
68. Constitution Acts Amendment Act 1899 amended
15 (1) This section amends the Constitution Acts Amendment Act 1899.
(2) In Schedule V Part 1 Division 1 in the item for the Western
Australian Gas Disputes Arbitrator:
(a) delete "Gas Disputes" and insert:
20 Energy Disputes
(b) delete "Gas Pipelines Access (Western Australia)" and
insert:
25 Energy Arbitration and Review
69. Financial Management Act 2006 amended
(1) This section amends the Financial Management Act 2006.
page 30
National Gas Access (WA) Bill 2008
Various Acts amended Part 7
Other Acts amended Division 5
s. 70
(2) In Schedule 1 in the item "Western Australian Gas Disputes
Arbitrator" delete "Gas" and insert:
Energy
5
70. Freedom of Information Act 1992 amended
(1) This section amends the Freedom of Information Act 1992.
(2) Delete the Glossary clause 7A(1) and insert:
10 (1) In this clause --
access regulation functions means the functions given
by or under the National Gas Access (WA) Act 2009;
arbitrator has the meaning given in section 61 of the Energy
Arbitration and Review Act 1998;
15 Authority means the Economic Regulation Authority
established by the Economic Regulation Authority Act 2003;
Board has the meaning given in section 49 of the Energy
Arbitration and Review Act 1998.
20 71. Parliamentary Commissioner Act 1971 amended
(1) This section amends the Parliamentary Commissioner Act 1971.
(2) In Schedule 1 in the item for the Economic Regulation
Authority delete "referred to in section 36(1) of the Gas Pipelines
Access (Western Australia) Act 1998 and" and insert:
25
given by or under the National Gas Access (WA)
Act 2009 or referred to in
72. Petroleum Pipelines Act 1969 amended
30 (1) This section amends the Petroleum Pipelines Act 1969.
(2) Delete section 5A.
page 31
National Gas Access (WA) Bill 2008
Schedule 1 Some modifications to National Gas Law as in Schedule to
South Australian Act
cl. 1
Schedule 1 -- Some modifications to National Gas Law as
in Schedule to South Australian Act
[s. 7(2)]
1. Purpose of this Schedule
5 (1) This Schedule makes the modifications to the underlying National
Gas Law that, together with modifications giving effect to
section 7A(3) and (4), result in the text that section 7(1) applies as the
National Gas Access (Western Australia) Law.
(2) In subclause (1) --
10 underlying National Gas Law means the National Gas Law, as set
out in the South Australian Act Schedule for the time being in force.
2. Section 1 modified
In section 1 after "National Gas" insert --
15 Access
3. Section 2 modified
(1) In section 2 delete the definitions of dispute resolution body, old
access law and Regulations.
20 (2) In section 2 insert in alphabetical order:
dispute resolution body has the meaning given to that
term in section 9(1) of the National Gas Access (WA)
Act 2009;
25 old access law means Schedule 1 to the Gas Pipelines
Access (Western Australia) Act 1998 as in force from
time to time before the commencement of section 30 of
the National Gas Access (WA) Act 2009;
Regulations means the regulations made under Part 3 of
30 the National Gas Access (WA) Act 2009 that apply as a
law of this jurisdiction;
page 32
National Gas Access (WA) Bill 2008
Some modifications to National Gas Law as in Schedule to Schedule 1
South Australian Act
cl. 4
regulator has the meaning given to that term in
section 9(1) of the National Gas Access (WA) Act 2009;
WA arbitrator has the meaning given to that term in
section 9(1) of the National Gas Access (WA) Act 2009.
5
(3) In section 2 in the definition of AER after "Commonwealth" insert:
except if section 2A requires the term to be given a
different meaning
10
(4) In section 2 in the definition of Gas Code delete "in force from time
to time before the commencement of section 20 of the National
Gas (South Australia) Act 2008 of South Australia;" and insert:
15 amended and applying from time to time before the
commencement of section 30 of the National Gas Access
(WA) Act 2009 as a law of Western Australia;
(5) In section 2 in the definition of initial National Gas Rules delete
20 "made" and insert:
that, when section 30 of the National Gas Access (WA)
Act 2009 comes into operation, apply
4. Sections 2A and 2B inserted
After section 2 insert:
25
2A. Meaning of AER modified
(1) In this Law, other than in the definition of AER in
section 2, a reference to the AER is to be read as a
reference to the regulator (whether the ERA or the AER)
30 except to the extent that subsection (2) gives a different
meaning.
(2) To the extent to which a reference to the AER is capable
of being read as a reference to the Australian Energy
page 33
National Gas Access (WA) Bill 2008
Schedule 1 Some modifications to National Gas Law as in Schedule to
South Australian Act
cl. 5
Regulator established by section 44AE of the Trade
Practices Act 1974 of the Commonwealth acting as the
disputes resolution body, the term is to be read as having
or including that meaning.
5 2B. References to WA application Act
In this Law, a reference to the National Gas Access
(Western Australia) Act 2008, if any, is to be read as a
reference to the National Gas Access (WA) Act 2009.
10 5. Chapter 1 Part 1A inserted
After Chapter 1 Part 1 insert:
Part 1A -- Postponement of Natural Gas Services
Bulletin Board provisions
15 20A. Minister may fix day on which provisions apply
To the extent that a provision of this Law relates to the
Natural Gas Services Bulletin Board, the provision does
not apply before a day is fixed by the Minister, by an
order notice of which is published in the Government
20 Gazette, as the day on and after which provisions of this
Law relating to the Natural Gas Services Bulletin Board
apply.
6. Section 29 modified
25 In section 29 after "Commonwealth" insert:
or by the ERA under section 29 of the Economic
Regulation Authority Act 2003
page 34
National Gas Access (WA) Bill 2008
Some modifications to National Gas Law as in Schedule to Schedule 1
South Australian Act
cl. 7
7. Section 30 modified
(1) In section 30 delete "Section 44AAF" and insert:
(1) Section 44AAF
5
(2) At the end of section 30 insert:
(2) Without limiting section 2A, that section also applies to
section 44AAF as adopted by subsection (1) and, when
10 the adopted section is read as if a reference in it to the
AER were a reference to the ERA, it is further modified
as follows:
(a) delete subsection (3)(c) of the adopted section
and insert:
15
(c) the Australian Energy Regulator established by
section 44AE of the Trade Practices Act 1974 of
the Commonwealth;
20 (b) delete subsection (6)(a)(i) of the adopted section
and insert:
(i) an ERA member, a person assisting the
ERA in the performance of its functions
25 or a delegate of the ERA;
8. Chapter 2 Part 1A inserted
After Chapter 2 Part 1 insert:
30 Part 1A -- Functions and powers of WA arbitrator
68A. Manner in which WA arbitrator must perform or
exercise certain functions or powers
(1) The WA arbitrator must, in performing or exercising a
function or power that relates to an access determination,
page 35
National Gas Access (WA) Bill 2008
Schedule 1 Some modifications to National Gas Law as in Schedule to
South Australian Act
cl. 9
perform or exercise that function or power in a manner
that will or is likely to contribute to the achievement of
the national gas objective.
(2) In addition, the WA arbitrator --
5 (a) must take into account the revenue and pricing
principles when making an access determination
relating to a rate or charge for a pipeline service;
and
(b) may take into account the revenue and pricing
10 principles when performing or exercising any
other function or power that relates to an access
determination, if the WA arbitrator considers it
appropriate to do so.
(3) For the purposes of subsection (2)(a), a reference to a
15 reference service in the revenue and pricing principles
must be read as a reference to a pipeline service.
9. Section 181A inserted
After section 181 insert:
20
181A. Providing information for certain disputes
(1) If the dispute resolution body for a dispute notified under
section 181(1) is the WA arbitrator --
(a) the WA arbitrator is to inform the ERA that
25 notification of the dispute has been received; and
(b) the WA arbitrator may request the ERA to give
the WA arbitrator any information in the ERA's
possession that is relevant to the dispute.
(2) The ERA is to give the WA arbitrator the information
30 requested, whether or not it is confidential and whether or
not it came into the ERA's possession for the purposes of
resolving the dispute.
page 36
National Gas Access (WA) Bill 2008
Some modifications to National Gas Law as in Schedule to Schedule 1
South Australian Act
cl. 10
(3) If the ERA gives the WA arbitrator information that is
confidential, the ERA is to identify the nature and extent
of the confidentiality and the WA arbitrator is to treat the
information accordingly.
5
10. Section 231 modified
(1) After section 231(1) insert:
(1A) When subsection (1) is read as if a reference in it to the
10 AER were a reference to the ERA, the subsection is to be
read as if "on behalf of the Commonwealth" had been
deleted.
(2) After section 231(3) insert:
15
(3A) When subsection (3) is read as if a reference in it to the
AER were a reference to the ERA, the subsection is to be
read as if "on behalf of the Commonwealth" had been
deleted.
20
11. Section 240 modified
In section 240 delete "Commonwealth." and insert:
State of Western Australia except if the order is made on
25 an application by the AER on behalf of the
Commonwealth, in which case it is payable to the
Commonwealth.
12. Section 290 modified
30 In section 290 in the definition of publish paragraph (a) delete
"section 294 or 315" and insert:
section 315
page 37
National Gas Access (WA) Bill 2008
Schedule 1 Some modifications to National Gas Law as in Schedule to
South Australian Act
cl. 13
13. Section 294 replaced
Delete section 294 and insert:
294. Initial National Gas Rules for WA
5 (1) The National Gas Rules (the initial National Gas Rules)
that apply upon section 30 of the National Gas Access
(WA) Act 2009 coming into operation are as set out in the
document called the National Gas Rules 2008, signed on
1 July 2008 by the Minister for Energy of South
10 Australia, as affected, if applicable, by any amendments
made by the AEMC under national gas legislation before
the coming into operation of that section.
(2) Subsection (1) does not prevent the AEMC from making
Rules under this Chapter that amend or revoke the initial
15 National Gas Rules.
14. Schedule 1 modified
In Schedule 1 item 82 delete "section 20 of the National Gas (South
Australia) Act 2008 of South Australia." and insert:
20
section 30 of the National Gas Access (WA) Act 2009 of Western
Australia.
15. Schedule 2 clause 27A inserted
25 After Schedule 2 clause 27 insert:
27A. WA modifications of clause 27
Clause 27 applies to a conferral of power by this Law to
the extent that the power derives from an amendment to
30 the Schedule to the National Gas (South Australia)
Act 2008 of South Australia --
(a) as if references in clause 27(2), (5) and (6) to
the commencement of the empowering
provision referred to the time when the Western
page 38
National Gas Access (WA) Bill 2008
Some modifications to National Gas Law as in Schedule to Schedule 1
South Australian Act
cl. 16
Australian National Gas Access Law text, as
defined in section 7(2) of the National Gas
Access (WA) Act 2009, is affected by the
amendment; and
5 (b) as if the reference in clause 27(3) to additional
power that would be conferred had an Act of
South Australia commenced referred to additional
power that would be conferred had the Western
Australian National Gas Access Law text been
10 already affected by the amendment; and
(c) as if clause 27(7) had been omitted.
16. Schedule 2 clause 34 modified
(1) In Schedule 2 clause 34 delete "In any proceedings" and insert:
15
(1) In any proceedings
(2) At the end of Schedule 2 clause 34 insert:
20 (2) When subclause (1) is read as if a reference in it to the
AER were a reference to the ERA, the subclause is to be
read as if "an AER member, or an SES employee or
acting SES employee assisting the AER as mentioned in
section 44AAC of the Trade Practices Act 1974 of the
25 Commonwealth" had been deleted and the following had
been inserted instead:
a member of the ERA
page 39
National Gas Access (WA) Bill 2008
Schedule 1 Some modifications to National Gas Law as in Schedule to
South Australian Act
cl. 17
17. Schedule 2 clause 50 replaced
Delete Schedule 2 clause 50 and insert:
50. Attempts and incitement
5 Section 555A(1) and (2) of The Criminal Code apply in
relation to a simple offence under this Law as if it were a
simple offence under The Criminal Code.
18. Schedule 3 clause 1 modified
10 (1) In Schedule 3 clause 1 in the definition of commencement day delete
"section 20 of the new application Act" and insert:
section 30 of the National Gas Access (WA) Act 2009
15 (2) In Schedule 3 clause 45(3)(b) delete "Gas Pipelines Access (South
Australia) Regulations 1999 were not revoked." and insert:
Gas Pipelines Access (Western Australia)
Regulations 2000 were not repealed.
20
page 40
National Gas Access (WA) Bill 2008
Western Australian National Gas Access Law text Note
Preliminary Chapter 1
Citation and interpretation Part 1
s. 1
Note -- Western Australian National Gas Access Law text
[This note is not part of the Act. It shows the text that results from
modifying, according to the proposed Schedule 1, the National Gas
Law as set out in the South Australian Act Schedule.]
Chapter 1 -- Preliminary
Part 1 -- Citation and interpretation
1. Citation
This law may be cited as the National Gas Access Law.
2. Definitions
In this Law--
15-year no-coverage determination means a determination
of a relevant Minister under Chapter 5 Part 2;
ACCC means the Australian Competition and Consumer
Commission established by section 6A of the Trade
Practices Act 1974 of the Commonwealth;
access arrangement means an arrangement setting out
terms and conditions about access to pipeline services
provided or to be provided by means of a pipeline;
access determination means a determination of the dispute
resolution body under Chapter 6 Part 3 and includes a
determination varied under Part 4 of that Chapter;
AEMC means the Australian Energy Market Commission
established by section 5 of the Australian Energy Market
Commission Establishment Act 2004 of South Australia;
AER means the Australian Energy Regulator established
by section 44AE of the Trade Practices Act 1974 of the
Commonwealth except if section 2A requires the term to
be given a different meaning;
AER economic regulatory decision means a decision
(however described) of the AER under this Law or the
page 41
National Gas Access (WA) Bill 2008
Note Western Australian National Gas Access Law text
Chapter 1 Preliminary
Part 1 Citation and interpretation
s. 2
Rules performing or exercising an AER economic
regulatory function or power;
AER economic regulatory function or power means a
function or power performed or exercised by the AER
under this Law or the Rules that relates to the economic
regulation of pipeline services provided by a service
provider--
(a) by means of; or
(b) in connection with,
a scheme pipeline and includes a function or power
performed or exercised by the AER under this Law or the
Rules that relates to--
(c) the preparation of a service provider performance
report;
(d) a ring fencing decision;
(e) an applicable access arrangement decision;
(f) an access determination (if the AER is the dispute
resolution body);
AER ring fencing determination means a determination of
the AER under section 143(1);
applicable access arrangement means a limited access
arrangement or full access arrangement that has taken
effect after being approved or made by the AER under the
Rules and includes an applicable access arrangement as
varied--
(a) under the Rules; or
(b) by an access determination as provided by this
Law or the Rules;
applicable access arrangement decision means--
(a) a full access arrangement decision; or
(b) a limited access arrangement decision;
page 42
National Gas Access (WA) Bill 2008
Western Australian National Gas Access Law text Note
Preliminary Chapter 1
Citation and interpretation Part 1
s. 2
approved associate contract means an associate contract
approved by the AER under an associate contract decision;
associate in relation to a person has the same meaning it
would have under Division 2 of Part 1.2 of the
Corporations Act 2001 of the Commonwealth if
sections 13, 16(2) and 17 did not form part of that Act;
associate contract means--
(a) a contract, arrangement or understanding between
a service provider and an associate of the service
provider in connection with the provision of an
associate pipeline service; or
(b) a contract, arrangement or understanding between
a service provider and any person in connection
with the provision of an associate pipeline
service--
(i) that provides a direct or indirect benefit to
an associate; and
(ii) that is not at arm's length;
associate contract decision means a decision of the AER
under the Rules that approves or does not approve an
associate contract for the purposes of Chapter 4 Part 2
Division 5;
associate pipeline service means a pipeline service
provided by means of a pipeline other than a pipeline to
which a 15-year no coverage determination applies;
Bulletin Board information means information that--
(a) a person gives to the Bulletin Board operator to
comply with section 223(1); or
(b) a person gives to the Bulletin Board operator in
circumstances expressly permitted by the Rules;
Bulletin Board operator means the person prescribed by
the Regulations for the purposes of section 217;
page 43
National Gas Access (WA) Bill 2008
Note Western Australian National Gas Access Law text
Chapter 1 Preliminary
Part 1 Citation and interpretation
s. 2
charge, in relation to a pipeline service, means the amount
that is payable by a user to a service provider for the
provision of the pipeline service to that user;
civil penalty means--
(a) in the case of a breach of a civil penalty provision
by a natural person--
(i) an amount not exceeding $20 000; and
(ii) an amount not exceeding $2 000 for every
day during which the breach continues;
(b) in the case of a breach of a civil penalty provision
by a body corporate--
(i) an amount not exceeding $100 000; and
(ii) an amount not exceeding $10 000 for
every day during which the breach
continues;
civil penalty provision has the meaning given by section 3;
classification decision under the Rules means a decision
of the NCC under the Rules that classifies either of the
following pipelines as a cross boundary transmission
pipeline, cross boundary distribution pipeline, transmission
pipeline or a distribution pipeline:
(a) a pipeline in respect of which a tender approval
decision becomes irrevocable by operation of the
Rules;
(b) a pipeline--
(i) by means of which a service provider
intends to provide pipeline services to
which a full access arrangement
voluntarily submitted to the AER for
approval by that provider will apply, if
approved; and
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(ii) in respect of which the NCC has not
previously made an initial classification
decision;
commission, in relation to a pipeline, has the meaning
given by section 12;
Commonwealth Minister means the Minister of the
Commonwealth administering the Australian Energy
Market Act 2004 of the Commonwealth;
conduct provision has the meaning given by section 4;
coverage determination means a determination of a
relevant Minister under Chapter 3 Part 1 Division 1;
coverage recommendation means a recommendation of the
NCC under Chapter 3 Part 1 Division 1;
coverage revocation determination means a determination
of a relevant Minister under Chapter 3 Part 1 Division 2;
coverage revocation recommendation means a
recommendation of the NCC under Chapter 3 Part 1
Division 2;
covered pipeline means a pipeline--
(a) to which a coverage determination applies; or
(b) deemed to be a covered pipeline by operation of
section 126 or 127;
covered pipeline service provider means a service provider
that provides or intends to provide pipeline services by
means of a covered pipeline;
cross boundary distribution pipeline means a distribution
pipeline that is partly situated in the jurisdictional areas of
2 or more participating jurisdictions;
cross boundary transmission pipeline means a
transmission pipeline that is partly situated in the
jurisdictional areas of 2 or more participating jurisdictions;
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designated pipeline means a pipeline prescribed by the
Regulations to be a designated pipeline;
Note--
A light regulation determination cannot be made
in respect of pipeline services provided by means
of a designated pipeline: see sections 109 and 111.
developable capacity means the difference between the
current capacity of a covered pipeline and the capacity of a
covered pipeline which would be available if a new facility
was constructed, but does not include any new capacity of
a covered pipeline resulting from an extension to the
geographic range of a covered pipeline;
dispute resolution body has the meaning given to that term
in section 9(1) of the National Gas Access (WA) Act 2009;
distribution pipeline means a pipeline that is classified in
accordance with this Law or the Rules as a distribution
pipeline and includes any extension to, or expansion of the
capacity of, such a pipeline when it is a covered pipeline
that, by operation of an applicable access arrangement or
under this Law, is to be treated as part of the pipeline;
Note--
See also sections 18 and 19.
draft Rule determination means a determination of the
AEMC under section 308;
end user means a person who acquires natural gas or
proposes to acquire natural gas for consumption purposes;
ERA means the Economic Regulation Authority
established by section 4 of the Economic Regulation
Authority Act 2003 of Western Australia;
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extension and expansion requirements means--
(a) the requirements contained in an access
arrangement that, in accordance with the Rules,
specify--
(i) the circumstances when an extension to,
or expansion of the capacity of, a covered
pipeline is to be treated as forming part of
the covered pipeline; and
(ii) whether the pipeline services provided or
to be provided by means of, or in
connection with, spare capacity arising
out of an extension to, or expansion of the
capacity of, a covered pipeline will be
subject to the applicable access
arrangement applying to the pipeline
services to which that arrangement
applies; and
(iii) whether an extension to, or expansion of
the capacity of, a covered pipeline will
affect a reference tariff, and if so, the
effect on the reference tariff; and
(b) any other requirements specified by the Rules as
extension and expansion requirements;
Note--
See also sections 18 and 19.
final Rule determination means a determination of the
AEMC under section 311;
foreign company has the same meaning as in the
Corporations Act 2001 of the Commonwealth;
foreign source means--
(a) a source beyond the outer limits of all of the
following:
(i) the adjacent area of this jurisdiction;
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(ii) the adjacent area of another participating
jurisdiction; or
(b) a source within the joint petroleum development
area (within the meaning of the Petroleum (Timor
Sea Treaty) Act 2003 of the Commonwealth);
form of regulation factors has the meaning given by
section 16;
full access arrangement means an access arrangement
that--
(a) provides for price or revenue regulation as
required by the Rules; and
(b) deals with all other matters for which the Rules
require provision to be made in an access
arrangement;
full access arrangement decision means a decision of the
AER under the Rules that--
(a) approves or does not approve a full access
arrangement or revisions to an applicable access
arrangement submitted to the AER under
section 132 or the Rules; or
(b) makes a full access arrangement--
(i) in place of a full access arrangement the
AER does not approve in that decision; or
(ii) because a service provider does not
submit a full access arrangement in
accordance with section 132 or the Rules;
(c) makes revisions to an access arrangement--
(i) in place of revisions submitted to the
AER under section 132 that the AER does
not approve in that decision; or
(ii) because a service provider does not
submit revisions to the AER under
section 132;
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Gas Code means the National Third Party Access Code for
Natural Gas Pipeline Systems set out in Schedule 2 to the
Gas Pipelines Access (South Australia) Act 1997 of South
Australia as amended and applying from time to time
before the commencement of section 30 of the National
Gas Access (WA) Act 2009 as a law of Western Australia;
gas market operator means VENCorp or any other person
or body prescribed by the Regulations to be a gas market
operator;
general regulatory information order has the meaning
given by section 45;
greenfields pipeline incentive means--
(a) a 15-year no-coverage determination; or
(b) a price regulation exemption;
haulage, in relation to natural gas, includes conveyance or
reticulation of natural gas;
initial classification decision means a decision of the NCC
under section 98 or 155;
initial National Gas Rules means the National Gas
Rules that, when section 30 of the National Gas Access
(WA) Act 2009 comes into operation, apply under
section 294;
international pipeline means a pipeline for the haulage of
gas from a foreign source;
jurisdictional determination criteria, in relation to a cross
boundary distribution pipeline, has the meaning given by
section 14;
jurisdictional gas legislation means an Act of a
participating jurisdiction (other than national gas
legislation), or any instrument made or issued under or for
the purposes of that Act, that regulates the haulage of gas
in that jurisdiction;
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light regulation determination means a determination of
the NCC under Chapter 3 Part 2 Division 1;
light regulation services means pipeline services to which
a light regulation determination applies;
limited access arrangement means an access arrangement
that, under this Law and the Rules, is not required to make
provision for price or revenue regulation but deals with the
matters for which this Law and the Rules require provision
to be made in an access arrangement;
limited access arrangement decision means a decision of
the AER under the Rules that approves or does not
approve--
(a) a limited access arrangement submitted to the
AER under section 116 or 168; or
(b) revisions to a limited access arrangement
submitted to the AER under section 116(3) or
168(3) or the Rules;
MCE means the Ministerial Council on Energy established
on 8 June 2001, being the Council of Ministers with
primary carriage of energy matters at a national level
comprising the Ministers representing the Commonwealth,
the States, the Australian Capital Territory and the
Northern Territory, acting in accordance with its own
procedures;
MCE directed review means a review conducted by the
AEMC under Chapter 2 Part 2 Division 4;
MCE statement of policy principles means a statement of
policy principles issued by the MCE under section 25;
minimum ring fencing requirement means a requirement
under Chapter 4 Part 2 Division 2;
Minister of a participating jurisdiction means a Minister
who is a Minister of a participating jurisdiction within the
meaning of section 22;
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Ministerial coverage decision means--
(a) a decision of a relevant Minister under section 99,
106 or 156; or
(b) a decision of the Commonwealth Minister under
section 164;
national gas legislation means--
(a) the National Gas (South Australia) Act 2008 of
South Australia and Regulations in force under
that Act; and
(b) the National Gas (South Australia) Law; and
(c) the National Gas Access (Western Australia)
Act 2008 of Western Australia; and
(d) the National Gas Access (Western Australia) Law
within the meaning given in the National Gas
Access (Western Australia) Act 2008 of Western
Australia; and
(e) Regulations made under the National Gas Access
(Western Australia) Act 2008 of Western Australia
for the purposes of the National Gas Access
(Western Australia) Law; and
(f) an Act of a participating jurisdiction (other than
South Australia or Western Australia) that applies,
as a law of that jurisdiction, any part of--
(i) the Regulations referred to in
paragraph (a); or
(ii) the National Gas Law set out in the
Schedule to the National Gas (South
Australia) Act 2008 of South Australia;
and
(g) the National Gas Law set out in the Schedule to
the National Gas (South Australia) Act 2008 of
South Australia as applied as a law of a
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participating jurisdiction (other than South
Australia or Western Australia); and
(h) the Regulations referred to in paragraph (a) as
applied as a law of a participating jurisdiction
(other than South Australia or Western Australia);
national gas objective means the objective set out in
section 23;
National Gas Rules or Rules means--
(a) the initial National Gas Rules; and
(b) Rules made by the AEMC under this Law,
including Rules that amend or revoke--
(i) the initial National Gas Rules; or
(ii) Rules made by it;
natural gas means a substance that--
(a) is in a gaseous state at standard temperature and
pressure; and
(b) consists of naturally occurring hydrocarbons, or a
naturally occurring mixture of hydrocarbons and
non-hydrocarbons, the principal constituent of
which is methane; and
(c) is suitable for consumption;
natural gas service means--
(a) a pipeline service; or
(b) the supply of natural gas; or
(c) a service ancillary to the service described in
paragraph (b);
Natural Gas Services Bulletin Board means the website
maintained by the Bulletin Board operator that contains
information of the kind specified in the Rules in relation to
natural gas services;
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NCC means the National Competition Council established
by section 29A of the Trade Practices Act 1974 of the
Commonwealth;
NCC recommendation or decision means--
(a) a coverage recommendation; or
(b) a coverage revocation recommendation; or
(c) a no-coverage recommendation; or
(d) a price regulation exemption recommendation; or
(e) a reclassification decision; or
(f) a light regulation determination; or
(g) a decision of the NCC under Chapter 3 Part 2
Division 2 to revoke a light regulation
determination; or
(h) a decision of the NCC not to make a decision
referred to in paragraph (f) or (g); or
(i) advice under section 172;
new facility means an extension to, or expansion of the
capacity of, a covered pipeline which is to be treated as
part of the covered pipeline--
(a) in accordance with the extension and expansion
requirements contained in an applicable access
arrangement applying to the pipeline services
provided by means of that covered pipeline; or
(b) under this Law;
Note--
See also sections 18 and 19.
no-coverage recommendation means a recommendation of
the NCC under Chapter 5 Part 2;
non scheme pipeline user means a person who--
(a) is a party to a contract with a service provider
under which the service provider provides or
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intends to provide a pipeline service to that person
by means of a pipeline that is not a scheme
pipeline; or
(b) has a right under an access determination to be
provided with a pipeline service by means of a
pipeline that is not a scheme pipeline;
offence provision means a provision of this Law the breach
or contravention of which by a person exposes that person
to a finding of guilt by a court;
officer has the same meaning as officer has in relation to a
corporation under section 9 of the Corporations Act 2001
of the Commonwealth;
old access law means Schedule 1 to the Gas Pipelines
Access (Western Australia) Act 1998 as in force from time
to time before the commencement of section 30 of the
National Gas Access (WA) Act 2009;
old scheme classification or determination means a
classification or determination under section 10 or 11 of
the old access law in force at any time before the repeal of
the old access law;
old scheme distribution pipeline means a pipeline that
was, at any time before the repeal of the old access law--
(a) a distribution pipeline as defined in that law; and
(b) a covered pipeline as defined in the Gas Code;
old scheme transmission pipeline means a pipeline that
was, at any time before the repeal of the old access law--
(a) a transmission pipeline as defined in that law; and
(b) a covered pipeline as defined in the Gas Code;
participating jurisdiction means a jurisdiction that is a
participating jurisdiction by reason of section 21;
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pipeline means--
(a) a pipe or system of pipes for the haulage of natural
gas, and any tanks, reservoirs, machinery or
equipment directly attached to that pipe or system
of pipes; or
(b) a proposed pipe or system of pipes for the haulage
of natural gas, and any proposed tanks, reservoirs,
machinery or equipment proposed to be directly
attached to the proposed pipe or system of pipes;
or
(c) a part of a pipe or system of pipes or proposed
pipe or system of pipes referred to in paragraph (a)
or (b),
but does not include--
(d) unless paragraph (e) applies, anything upstream of
a prescribed exit flange on a pipeline conveying
natural gas from a prescribed gas processing plant;
or
(e) if a connection point upstream of an exit flange on
such a pipeline is prescribed, anything upstream of
that point; or
(f) a gathering system operated as part of an upstream
producing operation; or
(g) any tanks, reservoirs, machinery or equipment
used to remove or add components to or change
natural gas (other than odourisation facilities) such
as a gas processing plant; or
(h) anything downstream of a point on a pipeline from
which a person takes natural gas for consumption
purposes;
pipeline classification criterion has the meaning given by
section 13;
pipeline coverage criteria has the meaning given by
section 15;
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pipeline reliability standard means a standard imposed by
or under an Act of a participating jurisdiction, or any
instrument made or issued under or for the purposes of that
Act, relating to the reliable haulage of natural gas in that
jurisdiction;
pipeline safety duty means a duty or requirement under an
Act of a participating jurisdiction, or any instrument made
or issued under or for the purposes of that Act, relating
to--
(a) the safe haulage of natural gas in that jurisdiction;
or
(b) the safe operation of a pipeline in that jurisdiction;
pipeline service means--
(a) a service provided by means of a pipeline,
including--
(i) a haulage service (such as firm haulage,
interruptible haulage, spot haulage and
backhaul); and
(ii) a service providing for, or facilitating, the
interconnection of pipelines; and
(b) a service ancillary to the provision of a service
referred to in paragraph (a),
but does not include the production, sale or purchase of
natural gas or processable gas;
pipeline service standard means a standard relating to the
standard of the pipeline services provided by a service
provider by means of a covered pipeline imposed--
(a) by or under jurisdictional gas legislation; or
(b) by the AER--
(i) under an access arrangement decision; or
(ii) in accordance with the Rules;
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price or revenue regulation means regulation of--
(a) the prices, charges or tariffs for pipeline services
to be, or that are to be, provided; or
(b) the revenue to be, or that is to be, derived from the
provision of pipeline services;
price regulation exemption means an exemption under
Chapter 5 Part 3;
price regulation exemption recommendation means a
recommendation of the NCC under section 162;
processable gas means a substance that--
(a) is in a gaseous state at standard temperature and
pressure; and
(b) consists of naturally occurring hydrocarbons, or a
naturally occurring mixture of hydrocarbons and
non-hydrocarbons, the principal constituent of
which is methane;
producer means a person who carries on a business of
producing natural gas;
prospective user has the meaning given by section 5;
queuing requirements means terms and conditions
providing for the priority that a prospective user has, as
against any other prospective user, to obtain access to spare
capacity and developable capacity;
reclassification decision means a decision of the NCC
under Chapter 3 Part 5;
reference service means a pipeline service specified by, or
determined or approved by the AER under, the Rules as a
reference service;
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reference tariff means a tariff or charge for a reference
service--
(a) specified in an applicable access arrangement
approved or made under a full access arrangement
decision; or
(b) determined by applying the formula or
methodology contained in an applicable access
arrangement approved or made under a full access
arrangement decision;
Regulations means the regulations made under Part 3 of
the National Gas Access (WA) Act 2009 that apply as a law
of this jurisdiction;
regulator has the meaning given to that term in
section 9(1) of the National Gas Access (WA) Act 2009;
regulatory information instrument means--
(a) a general regulatory information order; or
(b) a regulatory information notice;
regulatory information notice has the meaning given by
section 46;
regulatory obligation or requirement has the meaning
given by section 6;
regulatory payment has the meaning given by section 7;
relevant Minister means if, in a coverage recommendation,
no-coverage recommendation, classification decision under
the Rules or reclassification decision, the NCC determines
the pipeline is--
(a) a cross boundary transmission pipeline--the
Commonwealth Minister;
(b) a transmission pipeline situated wholly within a
participating jurisdiction--the designated
Minister;
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Note--
The term designated Minister is defined in the
Act of this jurisdiction that applies this Law as a
law of this jurisdiction.
(c) a distribution pipeline situated wholly within a
participating jurisdiction--the Minister of the
participating jurisdiction;
(d) a cross boundary distribution pipeline--the
Minister of the participating jurisdiction
determined by the NCC in the recommendation as
being the participating jurisdiction with which the
cross boundary distribution pipeline is most
closely connected;
relevant Regulator has the same meaning as in section 2 of
the old access law;
revenue and pricing principles means the principles set
out in section 24;
ring fencing decision means--
(a) an AER ring fencing determination; or
(b) a decision under section 146 granting or not
granting an exemption under that section; or
(c) an associate contract decision;
scheme pipeline means--
(a) a covered pipeline; or
(b) an international pipeline to which a price
regulation exemption applies;
service provider has the meaning given by section 8;
service provider performance report means a report
prepared by the AER under section 64;
spare capacity means unutilised capacity of a pipeline;
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storage provider means any person who owns, operates or
controls a facility for storing natural gas or processable gas
for injection into a pipeline;
supply includes--
(a) in relation to goods--supply (including re-supply)
by way of sale, exchange, lease, hire or hire
purchase; and
(b) in relation to services--provide, grant or confer;
tariff means a rate by which a charge for a pipeline service
is calculated;
tender approval decision means a decision of the AER
under the Rules under which the AER approves a tender
process for the construction and operation of a pipeline as a
competitive tender process;
Territory means the Australian Capital Territory or the
Northern Territory;
transmission pipeline means a pipeline that is classified in
accordance with this Law or the Rules as a transmission
pipeline and includes any extension to, or expansion of the
capacity of, such a pipeline when it is a covered pipeline
that, by operation of an applicable access arrangement or
under this Law, is to be treated as part of the pipeline;
Note--
See also sections 18 and 19.
Tribunal means the Australian Competition Tribunal
referred to in the Trade Practices Act 1974 of the
Commonwealth and includes a member of the Tribunal or
a Division of the Tribunal performing functions of the
Tribunal;
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user means a person who--
(a) is a party to a contract with a service provider
under which the service provider provides or
intends to provide a pipeline service to that person
by means of a scheme pipeline; or
(b) has a right under an access determination to be
provided with a pipeline service by means of a
scheme pipeline;
VENCorp means the Victorian Energy Networks
Corporation continued under Part 8 of the Gas Industry
Act 2001 of Victoria;
WA arbitrator has the meaning given to that term in
section 9(1) of the National Gas Access (WA) Act 2009.
2A. Meaning of AER modified
(1) In this Law, other than in the definition of AER in
section 2, a reference to the AER is to be read as a
reference to the regulator (whether the ERA or the AER)
except to the extent that subsection (2) gives a different
meaning.
(2) To the extent to which a reference to the AER is capable of
being read as a reference to the Australian Energy
Regulator established by section 44AE of the Trade
Practices Act 1974 of the Commonwealth acting as the
disputes resolution body, the term is to be read as having or
including that meaning.
2B. References to WA application Act
In this Law, a reference to the National Gas Access
(Western Australia) Act 2008, if any, is to be read as a
reference to the National Gas Access (WA) Act 2009.
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3. Meaning of civil penalty provision
A civil penalty provision is--
(a) a provision of this Law specified in an item in the
Table at the foot of this section; or
(b) a provision of this Law (other than an offence
provision) or the Rules that is prescribed by the
Regulations to be a civil penalty provision.
Table
Item Provision
1 Section 56
2 Section 57
3 Section 131
4 Section 133
5 Section 134
6 Section 135
7 Section 136
8 Section 139
9 Section 140
10 Section 141
11 Section 143(6)
12 Section 147
13 Section 148
14 Section 168
15 Section 169(3)
16 Section 170
17 Section 195
18 Section 223
19 Section 225
20 Section 227
21 Section 228
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4. Meaning of conduct provision
A conduct provision is--
(a) a provision of this Law specified in an item in the
Table at the foot of this section; or
(b) a provision of this Law (other than an offence
provision) or the Rules that is prescribed by the
Regulations to be a conduct provision.
Table
Item Provision
1 Section 133
2 Section 134
3 Section 135
4 Section 136
5 Section 147
6 Section 148
7 Section 170
5. Meaning of prospective user
(1) A prospective user is a person who seeks or wishes to be
provided with a pipeline service by means of a scheme
pipeline.
(2) To avoid doubt, a user is also a prospective user if the user
seeks or wishes to be provided with a pipeline service by
means of a scheme pipeline other than a pipeline service
already provided to them under--
(a) a contract; or
(b) an access determination.
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6. Meaning of regulatory obligation or requirement
(1) A regulatory obligation or requirement is--
(a) in relation to the provision of a pipeline service by
a service provider--
(i) a pipeline safety duty; or
(ii) a pipeline reliability standard; or
(iii) a pipeline service standard; or
(b) an obligation or requirement under--
(i) this Law or the Rules; or
(ii) an Act of a participating jurisdiction, or
any instrument made or issued under or
for the purposes of that Act, that levies or
imposes a tax or other levy that is payable
by a service provider; or
(iii) an Act of a participating jurisdiction, or
any instrument made or issued under or
for the purposes of that Act, that regulates
the use of land in a participating
jurisdiction by a service provider; or
(iv) an Act of a participating jurisdiction or
any instrument made or issued under or
for the purposes of that Act that relates to
the protection of the environment; or
(v) an Act of a participating jurisdiction, or
any instrument made or issued under or
for the purposes of that Act (other than
national gas legislation or an Act of a
participating jurisdiction or an Act or
instrument referred to in
subparagraphs (ii) to (iv)), that materially
affects the provision, by a service
provider, of pipeline services to which an
applicable access arrangement applies.
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(2) A regulatory obligation or requirement does not include an
obligation or requirement to pay a fine, penalty or
compensation--
(a) for a breach of--
(i) a pipeline safety duty; or
(ii) a pipeline reliability standard; or
(iii) a pipeline service standard; or
(b) under this Law or the Rules or an Act or an
instrument referred to in subsection (1)(b)(ii) to
(v).
Note--
See also section 24(2)(b).
7. Meaning of regulatory payment
A regulatory payment is a sum that a service provider had
been required or allowed to pay to a user or an end user for
a breach of, as the case requires--
(a) a pipeline reliability standard; or
(b) a pipeline service standard,
because it was efficient for the service provider (in terms of
the service provider's overall business) to pay that sum.
Note--
See also section 24(2)(b).
8. Meaning of service provider
(1) A service provider is a person who--
(a) owns, controls or operates; or
(b) intends to own, control or operate,
a pipeline or scheme pipeline, or any part of a pipeline or
scheme pipeline.
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Note--
A service provider must not provide pipeline services by
means of a scheme pipeline unless the service provider is
a legal entity of a specified kind: See section 131, and
section 169 where the scheme pipeline is an international
pipeline to which a price regulation exemption applies.
(2) A gas market operator that controls or operates (without at
the same time owning)--
(a) a pipeline or scheme pipeline; or
(b) a part of a pipeline or scheme pipeline,
is not to be taken to be a service provider for the purposes
of this Law.
9. Passive owners of scheme pipelines deemed to provide or
intend to provide pipeline services
(1) This section applies to a person who owns a scheme
pipeline but does not provide or intend to provide pipeline
services by means of that pipeline.
(2) The person is, for the purposes of this Law, deemed to
provide or intend to provide pipeline services by means of
that pipeline even if the person does not, in fact, do so.
10. Things done by 1 service provider to be treated as being
done by all of service provider group
(1) This section applies if--
(a) more than 1 service provider (a service provider
group) carries out a controlling pipeline activity in
respect of a pipeline (or a part of a pipeline); and
(b) under this Law or the Rules a service provider is
required or allowed to do a thing.
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(2) A service provider of the service provider group (the
complying service provider) may do that thing on behalf of
the other service providers of the service provider group if
the complying service provider has the written permission
of all of the service providers of that group to do that thing
on behalf of the service provider group.
(3) Unless this Law or the Rules otherwise provide, on the
doing of a thing referred to in subsection (2) by a
complying service provider, the service providers of the
service provider group on whose behalf the complying
service provider does that thing, must, for the purposes of
this Law and the Rules, each be taken to have done the
thing done by the complying service provider.
(4) This section does not apply to a thing required or allowed
to be done under section 131 or Chapter 4 Part 2.
(5) In this section--
controlling pipeline activity means own, control or
operate.
11. Local agents of foreign service providers
(1) This section applies if--
(a) a service provider is a foreign company; and
(b) the service provider has, under the Corporations
Act 2001 of the Commonwealth, appointed a local
agent within the meaning of that Act.
(2) The local agent--
(a) is answerable for the doing of all acts, matters and
things the service provider is required by or under
this Law to do; and
(b) is personally liable to a penalty imposed on the
service provider for a breach of a provision of this
Law or the Rules if a court hearing the matter is
satisfied that the local agent should be so liable.
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12. Commissioning of a pipeline
A pipeline is commissioned when the pipeline is first used
for the haulage of natural gas, on a commercial basis.
13. Pipeline classification criterion
(1) The pipeline classification criterion is whether the primary
function of the pipeline is to--
(a) reticulate gas within a market (which is the
primary function of a distribution pipeline); or
(b) convey gas to a market (which is the primary
function of a transmission pipeline).
(2) Without limiting subsection (1), in determining the primary
function of the pipeline, regard must also be had to whether
the characteristics of the pipeline are those of a
transmission pipeline or distribution pipeline having regard
to--
(a) the characteristics and classification of, as the case
requires, an old scheme transmission pipeline or
an old scheme distribution pipeline;
(b) the characteristics of, as the case requires, a
transmission pipeline or a distribution pipeline
classified under this Law;
(c) the characteristics and classification of pipelines
specified in the Rules (if any);
(d) the diameter of the pipeline;
(e) the pressure at which the pipeline is or will be
designed to operate;
(f) the number of points at which gas can or will be
injected into the pipeline;
(g) the extent of the area served or to be served by the
pipeline;
(h) the pipeline's linear or dendritic configuration.
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14. Jurisdictional determination criteria--cross boundary
distribution pipelines
The pipeline jurisdictional determination criteria are--
(a) whether more gas is to be delivered by a cross
boundary distribution pipeline in the jurisdictional
area of 1 participating jurisdiction than in the
jurisdictional area of any other participating
jurisdiction;
(b) whether more customers to be served by a cross
boundary distribution pipeline are resident in the
jurisdictional area of 1 participating jurisdiction
than in the jurisdictional area of any other
participating jurisdiction;
(c) whether more of the network for a cross boundary
distribution pipeline is in the jurisdictional area of
1 participating jurisdiction than in the
jurisdictional area of any other participating
jurisdiction;
(d) whether 1 participating jurisdiction has greater
prospects for growth in the gas market served or to
be served by a cross boundary distribution pipeline
than any other participating jurisdiction;
(e) whether the regional economic benefits from
competition are likely to be greater for 1
participating jurisdiction than for any other
participating jurisdiction.
15. Pipeline coverage criteria
The pipeline coverage criteria are--
(a) that access (or increased access) to pipeline
services provided by means of the pipeline would
promote a material increase in competition in at
least 1 market (whether or not in Australia), other
than the market for the pipeline services provided
by means of the pipeline;
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(b) that it would be uneconomic for anyone to develop
another pipeline to provide the pipeline services
provided by means of the pipeline;
(c) that access (or increased access) to the pipeline
services provided by means of the pipeline can be
provided without undue risk to human health or
safety;
(d) that access (or increased access) to the pipeline
services provided by means of the pipeline would
not be contrary to the public interest.
16. Form of regulation factors
The form of regulation factors are--
(a) the presence and extent of any barriers to entry in
a market for pipeline services;
(b) the presence and extent of any network
externalities (that is, interdependencies) between a
natural gas service provided by a service provider
and any other natural gas service provided by the
service provider;
(c) the presence and extent of any network
externalities (that is, interdependencies) between a
natural gas service provided by a service provider
and any other service provided by the service
provider in any other market;
(d) the extent to which any market power possessed
by a service provider is, or is likely to be,
mitigated by any countervailing market power
possessed by a user or prospective user;
(e) the presence and extent of any substitute, and the
elasticity of demand, in a market for a pipeline
service in which a service provider provides that
service;
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(f) the presence and extent of any substitute for, and
the elasticity of demand in a market for, electricity
or gas (as the case may be);
(g) the extent to which there is information available
to a prospective user or user, and whether that
information is adequate, to enable the prospective
user or user to negotiate on an informed basis with
a service provider for the provision of a pipeline
service to them by the service provider.
17. Effect of separate and consolidated access arrangements in
certain cases
(1) This section applies despite anything to the contrary in this
Law.
(2) If, under this Law and the Rules, separate access
arrangements are approved in an applicable access
arrangement decision for pipeline services provided, or to
be provided, by means of different parts of a covered
pipeline, each part of the covered pipeline--
(a) by which pipeline services are provided; and
(b) to which each separate applicable access
arrangement applies,
must to be taken to be a separate covered pipeline for the
purposes of this Law.
(3) If under this Law and the Rules, a single access
arrangement is approved in an applicable access
arrangement decision for pipeline services provided, or to
be provided, by means of 2 or more covered pipelines,
those pipelines must be taken to be a single covered
pipeline for the purposes of this Law.
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18. Certain extensions to, or expansion of the capacity of,
pipelines to be taken to be part of a covered pipeline
For the purposes of this Law--
(a) an extension to, or expansion of the capacity of, a
covered pipeline must be taken to be part of the
covered pipeline; and
(b) the pipeline as extended or expanded must be
taken to be a covered pipeline,
if, by operation of the extension and expansion
requirements under an applicable access arrangement, the
applicable access arrangement will apply to pipeline
services provided by means of the covered pipeline as
extended or expanded.
19. Expansions of and extensions to covered pipeline by which
light regulation services are provided
For the purposes of this Law, an extension to, or expansion
of the capacity of, a covered pipeline by means of which
light regulation services (and in respect of which there is
no limited access arrangement) are provided, must be taken
to be part of the covered pipeline unless the AER
determines otherwise in writing.
20. Interpretation generally
Schedule 2 to this Law applies to this Law, the Regulations
and the Rules and any other statutory instrument made
under this Law.
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Part 1A -- Postponement of Natural Gas Services Bulletin
Board provisions
20A. Minister may fix day on which provisions apply
To the extent that a provision of this Law relates to the
Natural Gas Services Bulletin Board, the provision does
not apply before a day is fixed by the Minister, by an order
notice of which is published in the Government Gazette, as
the day on and after which provisions of this Law relating
to the Natural Gas Services Bulletin Board apply.
Part 2 -- Participating jurisdictions
21. Participating jurisdictions
The State of South Australia, the Commonwealth, each of
the States of New South Wales, Victoria, Queensland,
Western Australia and Tasmania, and the Australian
Capital Territory and the Northern Territory are
participating jurisdictions for the purposes of this Law.
22. Ministers of participating jurisdictions
The Ministers of the participating jurisdictions are--
(a) the Minister of the Crown in right of South
Australia administering Part 2 of the National Gas
(South Australia) Act 2008 of South Australia; and
(b) the Minister of the Crown in right of Western
Australia administering the National Gas Access
(Western Australia) Act 2008 of Western
Australia; and
(c) the Minister of the Crown in right of the
Commonwealth administering the Australian
Energy Market Act 2004 of the Commonwealth;
and
(d) the Ministers of the Crown in right of the other
participating jurisdictions administering the laws
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of those jurisdictions that substantially correspond
to Part 2 of the National Gas (South Australia)
Act 2008 of South Australia.
Part 3 -- National gas objective and principles
Division 1 -- National gas objective
23. National gas objective
The objective of this Law is to promote efficient
investment in, and efficient operation and use of, natural
gas services for the long term interests of consumers of
natural gas with respect to price, quality, safety, reliability
and security of supply of natural gas.
Division 2 -- Revenue and pricing principles
24. Revenue and pricing principles
(1) The revenue and pricing principles are the principles set
out in subsections (2) to (7).
(2) A service provider should be provided with a reasonable
opportunity to recover at least the efficient costs the service
provider incurs in--
(a) providing reference services; and
(b) complying with a regulatory obligation or
requirement or making a regulatory payment.
(3) A service provider should be provided with effective
incentives in order to promote economic efficiency with
respect to reference services the service provider provides.
The economic efficiency that should be promoted
includes--
(a) efficient investment in, or in connection with, a
pipeline with which the service provider provides
reference services; and
(b) the efficient provision of pipeline services; and
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(c) the efficient use of the pipeline.
(4) Regard should be had to the capital base with respect to a
pipeline adopted--
(a) in any previous--
(i) full access arrangement decision; or
(ii) decision of a relevant Regulator under
section 2 of the Gas Code;
(b) in the Rules.
(5) A reference tariff should allow for a return commensurate
with the regulatory and commercial risks involved in
providing the reference service to which that tariff relates.
(6) Regard should be had to the economic costs and risks of
the potential for under and over investment by a service
provider in a pipeline with which the service provider
provides pipeline services.
(7) Regard should be had to the economic costs and risks of
the potential for under and over utilisation of a pipeline
with which a service provider provides pipeline services.
Division 3 -- MCE policy principles
25. MCE statements of policy principles
(1) Subject to this section, the MCE may issue a statement of
policy principles in relation to any matters that are relevant
to the exercise and performance by the AEMC of its
functions and powers in--
(a) making a Rule; or
(b) conducting a review under section 83.
(2) Before issuing a statement of policy principles, the MCE
must be satisfied that the statement is consistent with the
national gas objective.
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(3) As soon as practicable after issuing a statement of policy
principles, the MCE must give a copy of the statement to
the AEMC.
(4) The AEMC must publish the statement in the South
Australian Government Gazette and on its website as soon
as practicable after it is given a copy of the statement.
Part 4 -- Operation and effect of National Gas Rules
26. National Gas Rules to have force of law
The National Gas Rules have the force of law in this
jurisdiction.
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Chapter 2 -- Functions and powers of gas market
regulatory entities
Part 1 -- Functions and powers of the Australian
Energy Regulator
Division 1 -- General
27. Functions and powers of the AER
(1) The AER has the following functions and powers:
(a) to monitor compliance by persons with this Law,
the Regulations and the Rules, including
compliance with an applicable access
arrangement, an access determination and a ring
fencing decision; and
(b) to investigate breaches or possible breaches of
provisions of this Law, the Regulations or the
Rules, including offences against this Law; and
(c) to institute and conduct proceedings in relation to
breaches of provisions of this Law, the
Regulations or the Rules, including offences
against this Law; and
(d) to institute and conduct appeals from decisions in
proceedings referred to in paragraph (c); and
(e) AER economic regulatory functions or powers;
and
(f) to prepare and publish reports on the financial and
operational performance of service providers in
providing pipeline services by means of covered
pipelines; and
(g) to approve compliance programs of service
providers relating to compliance by service
providers with this Law or the Rules; and
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(h) any other functions and powers conferred on it
under this Law or the Rules.
(2) The AER has the power to do all things necessary or
convenient to be done for or in connection with the
performance of its functions.
28. Manner in which AER must perform or exercise AER
economic regulatory functions or powers
(1) The AER must, in performing or exercising an AER
economic regulatory function or power, perform or
exercise that function or power in a manner that will or is
likely to contribute to the achievement of the national gas
objective.
(2) In addition, the AER--
(a) must take into account the revenue and pricing
principles--
(i) when exercising a discretion in approving
or making those parts of an access
arrangement relating to a reference tariff;
or
(ii) when making an access determination
relating to a rate or charge for a pipeline
service; and
(b) may take into account the revenue and pricing
principles when performing or exercising any
other AER economic regulatory function or
power, if the AER considers it appropriate to do
so.
(3) For the purposes of subsection (2)(a)(ii), a reference to a
"reference service" in the revenue and pricing principles
must be read as a reference to a "pipeline service".
29. Delegations
Any delegation by the AER under section 44AAH of the
Trade Practices Act 1974 of the Commonwealth or by the
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ERA under section 29 of the Economic Regulation
Authority Act 2003 extends to, and has effect for the
purposes of, this Law, the Regulations and the Rules.
30. Confidentiality
(1) Section 44AAF of the Trade Practices Act 1974 of the
Commonwealth has effect for the purposes of this Law, the
Regulations and the Rules as if it formed part of this Law.
(2) Without limiting section 2A, that section also applies to
section 44AAF as adopted by subsection (1) and, when the
adopted section is read as if a reference in it to the AER
were a reference to the ERA, it is further modified as
follows:
(a) delete subsection (3)(c) of the adopted section and
insert:
(c) the Australian Energy Regulator established by
section 44AE of the Trade Practices Act 1974 of
the Commonwealth;
(b) delete subsection (6)(a)(i) of the adopted section
and insert:
(i) an ERA member, a person assisting the
ERA in the performance of its functions
or a delegate of the ERA;
Note--
See also Chapter 10 Part 2 Division 1.
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Division 2 -- Search warrants
31. Definitions
In this Division--
authorised person means a person authorised under
section 32;
relevant provision means a provision of this Law, the
Regulations or the Rules.
32. Authorised person
(1) The AER may, in writing, authorise a person that the AER
considers is suitably qualified or trained to be an authorised
person for the purposes of this Division.
(2) An authorised person must comply with any direction of
the AER in exercising powers or functions as an authorised
person.
33. Identity cards
(1) The AER must issue an identity card to an authorised
person.
(2) The identity card must contain the name, a recent
photograph and the signature of the authorised person.
(3) An authorised person must carry the identity card at all
times when exercising powers or performing functions as
an authorised person.
(4) An authorised person must produce his or her identity card
for inspection--
(a) before exercising a power as an authorised person;
or
(b) at any time during the exercise of a power as an
authorised person, if asked to do so.
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34. Return of identity cards
If a person to whom an identity card has been issued ceases
to be an authorised person, the person must return the
identity card to the AER as soon as practicable.
Maximum penalty: $500
35. Search warrant
(1) An authorised person may apply to a magistrate for the
issue of a search warrant in relation to a particular place if
the person--
(a) believes on reasonable grounds that--
(i) there is or has been or will be a breach of
a relevant provision; and
(ii) there is or may be a thing or things of a
particular kind connected with that breach
on or in that place; or
(b) reasonably suspects that--
(i) there may have been a breach of a
relevant provision; and
(ii) there is or may be a thing or things of a
particular kind connected with that breach
on or in that place.
(2) If a magistrate is satisfied by the evidence, on oath or by
affidavit, of an authorised person that there are reasonable
grounds for suspecting that there is, or may be within the
next 7 days, a thing or things of a particular kind connected
with a breach or possible breach of a relevant provision on
or in a place, the magistrate may issue a search warrant
authorising an authorised person named in the warrant--
(a) to enter the place specified in the warrant, with
such assistance and by the use of such force as is
necessary and reasonable;
(b) to search the place or any part of the place;
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(c) to search for and seize a thing named or described
in the warrant and which the person believes on
reasonable grounds to be connected with the
breach or possible breach of the relevant
provision;
(d) to inspect, examine or record an image of anything
in the place;
(e) to take extracts from, and make copies of, any
documents in the place;
(f) to take into the place such equipment and
materials as the person requires for exercising the
powers.
(3) A search warrant issued under this section must state--
(a) the purpose for which the search is required and
the nature of the suspected breach of the relevant
provision; and
(b) any conditions to which the warrant is subject; and
(c) whether entry is authorised to be made at any time
of the day or night or during stated hours of the
day or night; and
(d) a day, not later than 7 days after the issue of the
warrant, on which the warrant ceases to have
effect.
(4) Except as provided by this Law, the rules to be observed
with respect to search warrants mentioned in any relevant
laws of this jurisdiction extend and apply to warrants under
this section.
36. Announcement of entry and details of warrant to be given to
occupier or other person at premises
(1) This section applies if the occupier or another person who
apparently represents the occupier is present at premises
when a search warrant is being executed.
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(2) The authorised person executing the warrant must--
(a) identify himself or herself to that person; and
(b) announce that he or she is authorised by the
warrant to enter the place; and
(c) before using force to enter, give the person an
opportunity to allow entry; and
(d) give the person a copy of the warrant.
(3) The authorised person executing the warrant is not entitled
to exercise any powers under the warrant in relation to
premises if the authorised person does not comply with
subsection (2).
37. Immediate entry permitted in certain cases
An authorised person executing a warrant need not comply
with section 36 if he or she believes on reasonable grounds
that immediate entry to premises is required to ensure--
(a) the safety of any person; or
(b) that the effective execution of the search warrant is
not frustrated.
38. Copies of seized documents
(1) If an authorised person executing a warrant retains
possession of a document seized from a person in
accordance with the warrant, the authorised person must
give that other person, within 21 days of the seizure, a copy
of the document certified as correct by the authorised
person executing the warrant.
(2) A copy of a document certified under subsection (1) shall
be received in all courts and all tribunals as evidence of
equal validity to the original.
39. Retention and return of seized documents or things
(1) If an authorised person executing a warrant seizes a
document or other thing in accordance with the warrant,
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the authorised person must if he or she is not a person
employed by the AER, give the document or other thing
seized to the AER.
(2) The AER must take reasonable steps to return the
document or thing to the person from whom it was seized
if the reason for its seizure no longer exists.
(3) If the document or thing seized has not been returned
within 3 months after it was seized, the AER must take
reasonable steps to return it unless--
(a) proceedings for the purpose for which the
document or thing was retained have commenced
within that 3 month period and those proceedings
(including any appeal) have not been completed;
or
(b) a magistrate makes an order under section 40
extending the period during which the document
or thing may be retained.
40. Extension of period of retention of documents or things
seized
(1) The AER may apply to a magistrate--
(a) within 3 months after a document or other thing
was seized in accordance with a warrant; or
(b) if an extension has been granted under this section,
before the end of the period of the extension,
for an extension of the period for which the AER may
retain the document or thing but so that the total period of
retention does not exceed 12 months.
(2) An application must be made before proceedings for the
purpose for which the document or thing was retained have
been commenced.
(3) A magistrate may order such an extension if he or she is
satisfied that--
(a) it is in the interests of justice; and
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(b) the total period of retention does not exceed
12 months; and
(c) retention of the document or other thing is
necessary--
(i) for the purposes of an investigation into
whether a breach of a relevant provision
has occurred; or
(ii) to enable evidence of a breach of a
relevant provision to be obtained for the
purposes of a proceeding under this Law.
(4) If proceedings are commenced for the purpose for which
the document or thing was retained at any time before the
expiry of the period specified in an order under this
section, the document or thing may be retained until those
proceedings (including any appeal) have been completed
despite those proceedings being completed after the period
specified in the order.
(5) At least 7 days prior to the hearing of an application under
this section by a magistrate, notice of the application must
be sent to the owner of the document or thing described in
the application.
41. Obstruction of persons authorised to enter
A person must not, without reasonable excuse, obstruct or
hinder an authorised person in the exercise of a power
under a search warrant under this Division.
Maximum penalty:
(a) in the case of a natural person--$2 000;
(b) in the case of a body corporate--$10 000.
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Division 3 -- General information gathering powers
42. Power to obtain information and documents in relation to
performance and exercise of functions and powers
(1) If the AER has reason to believe that a person is capable of
providing information or producing a document that the
AER requires for the performance or exercise of a function
or power conferred on it under this Law or the Rules, the
AER may, by notice in writing, serve on that person a
notice (a relevant notice).
(2) A relevant notice may require the person to--
(a) provide to the AER, by writing signed by that
person or, in the case of a body corporate, by a
competent officer of the body corporate, within the
time and in the manner specified in the notice, any
information of the kind referred to in
subsection (1); or
(b) produce to the AER, or to a person specified in the
notice acting on its behalf, in accordance with the
notice, any documents of the kind referred to in
subsection (1).
(3) A person on whom a relevant notice is served must comply
with the relevant notice unless the person has a reasonable
excuse.
Maximum penalty:
(a) in the case of a natural person--$2 000;
(b) in the case of a body corporate--$10 000.
(4) A person must not, in purported compliance with a relevant
notice, provide information that the person knows is false
or misleading in a material particular.
Maximum penalty:
(a) in the case of a natural person--$2 000;
(b) in the case of a body corporate--$10 000.
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(5) It is a reasonable excuse for the purposes of subsection (3)
if the person served the relevant notice is not capable of
complying with that notice.
(6) It is a reasonable excuse for a natural person to--
(a) fail to provide information of the kind referred to
in subsection (1) to the AER; or
(b) fail to produce a document of the kind referred to
in subsection (1) to the AER, or to a person
specified in a relevant notice acting on behalf of
the AER,
if to do so might tend to incriminate the person, or make
the person liable to a criminal penalty, under a law of this
jurisdiction or a law of another participating jurisdiction.
(7) It is not a reasonable excuse for a person to--
(a) fail to provide information of the kind referred to
in subsection (1) to the AER; or
(b) fail to produce a document of the kind referred to
in subsection (1) to the AER, or to a person
specified in a relevant notice acting on behalf of
the AER,
on the ground of any duty of confidence.
(8) This section does not require a person to--
(a) provide information that is the subject of legal
professional privilege; or
(b) produce a document the production of which
would disclose information that is the subject of
legal professional privilege.
(9) This section does not require a person to--
(a) provide information that would disclose the
contents of a document prepared for the purposes
of a meeting of the Cabinet or a committee of the
Cabinet of the Commonwealth or of a State or a
Territory; or
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(b) produce a document prepared for the purposes of a
meeting of the Cabinet or a committee of the
Cabinet of the Commonwealth or of a State or a
Territory; or
(c) provide information, or produce a document, that
would disclose the deliberations of the Cabinet or
a committee of the Cabinet of the Commonwealth
or of a State or a Territory.
(10) A person incurs, by complying with a relevant notice, no
liability for breach of contract, breach of confidence or any
other civil wrong.
Division 4 -- Regulatory information notices and general
regulatory information orders
Subdivision 1 -- Interpretation
43. Definitions
In this Division--
contributing service has the meaning given by section 44;
scheme pipeline service provider means--
(a) a covered pipeline service provider; or
(b) a service provider who provides or intends to
provide pipeline services by means of an
international pipeline to which a price regulation
exemption applies;
related provider means a person who supplies a
contributing service to a scheme pipeline service provider.
44. Meaning of contributing service
(1) A contributing service is a service that the AER, in
accordance with this section, decides is a service that
contributes in a material way to the provision of a pipeline
service by a scheme pipeline service provider.
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(2) In deciding whether a service is a service that contributes
in a material way to the provision of a pipeline service by a
scheme pipeline service provider, the AER must have
regard to--
(a) the nature and kind of the service;
(b) when the service was first supplied;
(c) the nature and extent of the contribution of the
service relative to--
(i) the pipeline service; and
(ii) all other services supplied by the scheme
pipeline service provider;
(d) whether the service was previously supplied--
(i) by the scheme pipeline service provider;
or
(ii) directly or indirectly by an associate of
the scheme pipeline service provider;
(e) whether the service, together with other services,
contributes in a material way to the provision of
pipeline services;
(f) any other matter specified under the Rules.
45. Meaning of general regulatory information order
A general regulatory information order is an order made by
the AER in accordance with this Division that requires
each scheme pipeline service provider of a specified class,
or each related provider of a specified class, to do either or
both of the following:
(a) provide to the AER the information specified in
the order;
(b) prepare, maintain or keep information specified in
the notice in a manner and form specified in the
order.
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46. Meaning of regulatory information notice
A regulatory information notice is a notice prepared and
served by the AER in accordance with this Division that
requires the scheme pipeline service provider, or a related
provider, named in the notice to do either or both of the
following:
(a) provide to the AER the information specified in
the notice;
(b) prepare, maintain or keep information specified in
the notice in a manner and form specified in the
notice.
47. Division does not limit operation of information gathering
powers under Division 3
This Division does not limit the operation of Division 3.
Subdivision 2 -- Serving and making of regulatory information
instruments
48. Service and making of regulatory information instrument
(1) Subject to this Division, the AER, if it considers it
reasonably necessary for the performance or exercise of its
functions or powers under this Law or the Rules, may--
(a) serve a regulatory information notice on a scheme
pipeline service provider or a related provider; or
(b) make a general regulatory information order.
(2) In considering whether it is reasonably necessary to serve a
regulatory information notice, or make a general regulatory
information order, the AER must have regard to--
(a) the matter to be addressed by--
(i) the service of the regulatory information
notice; or
(ii) the making of the general regulatory
information order; and
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(b) the likely costs that may be incurred by an
efficient scheme pipeline service provider or
efficient related provider in complying with the
notice or order.
Note--
The AER must also exercise its powers under this section
in a manner that will or is likely to contribute to the
achievement of the national gas objective: see section 28.
(3) A regulatory information notice must not be served, or a
general regulatory information order must not be made,
solely for the purpose of--
(a) investigating breaches or possible breaches of
provisions of this Law, the Regulations or the
Rules, including offences against this Law; or
(b) instituting and conducting proceedings in relation
to breaches of provisions of this Law, the
Regulations or the Rules, including offences
against this Law; or
(c) instituting and conducting appeals from decisions
in proceedings referred to in paragraph (b); or
(d) collecting information for the preparation of a
service provider performance report; or
(e) any application for review of a decision of the
AER under Chapter 8 Part 5.
49. Additional matters to be considered for related provider
regulatory information instruments
(1) This section applies if the AER is intending to--
(a) serve a regulatory information notice on a related
provider; or
(b) make a general regulatory information order that
will apply to a class of related providers.
(2) In addition to the matters set out in section 48(2), the AER,
in considering whether it is reasonably necessary to serve
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the regulatory information notice, or make the general
regulatory information order, must have regard to--
(a) whether the scheme pipeline service provider
being supplied a contributing service by the
related provider or related providers to which the
intended regulatory information instrument will
apply can--
(i) provide the information to be specified in
that instrument; or
(ii) prepare, maintain or keep the information
to be specified in the particular manner
and form to be specified in that
instrument; and
(b) the extent to which the related provider or related
providers to which the intended regulatory
information instrument will apply is, or are,
supplying a contributing service on a genuinely
competitive basis; and
(c) the nature of any ownership or control between--
(i) the scheme pipeline service provider
being supplied a contributing service by a
related provider to which the intended
regulatory information instrument will
apply; and
(ii) that related provider; and
(d) the nature of any ownership or control as between
different related providers supplying the
contributing service to the scheme pipeline service
provider; and
(e) any other matter the AER considers relevant.
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(3) For the purposes of subsection (2)(b), in considering
whether a contributing service is being supplied on a
genuinely competitive basis, the AER may take into
account--
(a) whether there is effective competition in the
market for the supply of the contributing service;
and
(b) whether the related provider supplies the
contributing service to a scheme pipeline service
provider under a contract, arrangement or
understanding entered into with that scheme
pipeline service provider following a competitive
process for the awarding of the right to enter into
that contract, arrangement or understanding
involving persons who were not associates of the
scheme pipeline service provider.
50. AER must consult before publishing a general regulatory
information order
The AER must, in accordance with the Rules, consult with
the public on the general regulatory information order it
intends to make before it makes that order.
Note--
See also section 65 about what the AER must and may do after
receiving submissions.
51. Publication requirements for general regulatory
information orders
(1) A general regulatory information order made under
section 48(1)(b) must be published on the AER's website
as soon as practicable after it is made.
(2) Notice of the making of a general regulatory information
order must be published in a newspaper circulating
generally throughout Australia as soon as practicable after
it is made.
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52. Opportunity to be heard before regulatory information
notice is served
(1) The AER, before serving a regulatory information notice,
must--
(a) notify, in writing, the scheme pipeline service
provider, or the related provider, on whom the
AER intends to serve the regulatory information
notice of its intention to do so; and
(b) give the scheme pipeline service provider, or the
related provider, a draft of the regulatory
information notice it intends to serve.
(2) If the regulatory information notice to be served is an
urgent notice, the AER must, in a notice under
subsection (1)--
(a) identify the regulatory information notice to be
served as an urgent notice; and
(b) give its reasons, in writing, why the regulatory
information notice to be served is an urgent notice.
(3) A regulatory information notice is an urgent notice if--
(a) under the notice the AER will require the scheme
pipeline service provider or related provider to
provide information to the AER; and
(b) that requirement has arisen because the AER
considers it must deal with or address a particular
matter or thing in order for it to make an AER
economic regulatory decision; and
(c) the AER considers that, having regard to the time
within which it must make that AER economic
regulatory decision, the time within which the
AER requires the information is of the essence.
(4) A notice under subsection (1) must--
(a) invite the scheme pipeline service provider, or the
related provider, to make written representations
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to the AER as to whether the AER should serve
the regulatory information notice on them; and
(b) specify the period within which the scheme
pipeline service provider, or the related provider,
may make the representations.
(5) The period that must be specified in accordance with
subsection (4) must be--
(a) in the case of an urgent notice to be served--a
period of not less than 5 business days and not
more than 10 business days calculated from the
date of the notice under subsection (1);
(b) in all other cases--a period of at least 20 business
days calculated from the date of the notice under
subsection (1).
(6) The AER must consider the written representations made
in accordance with a notice under subsection (1) before
making its decision in accordance with this Division to
serve the regulatory information notice.
Subdivision 3 -- Form and content of regulatory
information instruments
53. Form and content of regulatory information instrument
(1) A regulatory information instrument--
(a) must specify the information required to be--
(i) provided to the AER;
(ii) prepared, maintained or kept in the
particular manner and form specified in
the instrument; and
(b) may specify the manner and form in which the
information described in the instrument is required
to be--
(i) provided to the AER;
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(ii) prepared, maintained or kept; and
(c) must state the reasons of the AER for requiring the
information described in the instrument to be--
(i) provided to the AER;
(ii) prepared, maintained or kept in the
particular manner and form specified in
the instrument; and
(d) in the case of an instrument requiring information
to be provided to the AER, must specify when the
information must be provided.
(2) In the case of a regulatory information notice, the notice
must name the scheme pipeline service provider or the
related provider to whom it applies.
(3) In the case of a general regulatory information order, the
order must specify the class of scheme pipeline service
provider, or related provider, to whom the order applies.
54. Further provision about the information that may be
described in a regulatory information instrument
Without limiting section 53(1)(a), the information that may
be required to be provided to the AER, or to be prepared,
maintained or kept, may include--
(a) historic, current and forecast information
(including financial information);
(b) information that is or may be derived from other
information in the possession or control of the
scheme pipeline service provider or the related
provider to whom the instrument applies;
(c) information to enable the AER to verify whether
the scheme pipeline service provider to whom the
instrument applies is or has been complying with
Chapter 4;
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(d) information to enable the AER to verify
compliance with any requirements for the
allocation of costs between natural gas services
under--
(i) the Rules; or
(ii) an applicable access arrangement.
55. Further provision about manner in which information must
be provided to AER or kept
Without limiting section 53(1)(b), a regulatory information
instrument may specify the information specified in the
instrument--
(a) be provided to the AER, or prepared, maintained
or kept, on an annual basis or some other basis,
including on the occurrence of a specified event or
state of affairs;
(b) be provided to the AER, or prepared, maintained
or kept, in accordance with specified Rules;
(c) be provided to the AER, or prepared, maintained
or kept, in accordance with any document, code,
standard, rule, specification or method formulated,
issued, prescribed or published by the AER or any
person, authority or body whether--
(i) wholly or partially or as amended by the
instrument; or
(ii) as formulated, issued, prescribed or
published at the time the instrument is
served or published or at any time before
the instrument is served or published; or
(iii) as amended from time to time;
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Example--
The AER may require a scheme
pipeline service provider to provide
information in a form and manner that
complies with relevant accounting
standards.
(d) be verified by way of statutory declaration by an
officer of the scheme pipeline service provider, or
of a related provider, to whom the instrument
applies;
(e) be audited--
(i) by a class of person specified in the
instrument before it is provided to the
AER; and
(ii) at the expense of the scheme pipeline
service provider or related provider to
whom the instrument applies.
Subdivision 4 -- Compliance with regulatory
information instruments
56. Compliance with regulatory information notice that is
served
On being served a regulatory information notice, a person
named in the notice must comply with the notice.
57. Compliance with general regulatory information order
(1) On publication of a general regulatory information order in
accordance with section 51(1), a person who is a member
of the class of person to which a general regulatory
information order applies must comply with the order.
(2) Subsection (1) does not apply to a person who has been
given an exemption under section 58.
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58. Exemptions from compliance with general regulatory
information order
(1) The AER may exempt a person, or a class of person, from
complying with section 57--
(a) unconditionally or on specified conditions; or
(b) wholly or to the extent as is specified in the
exemption.
(2) An exemption under this section must be in writing.
59. Assumptions where there is non-compliance with regulatory
information instrument
(1) This section applies if--
(a) under a regulatory information instrument the
AER--
(i) requires a scheme pipeline service
provider to provide information to the
AER for the purpose of enabling the AER
to make an AER economic regulatory
decision relating to the scheme pipeline
service provider; or
(ii) requires a related provider to provide
information to the AER that is relevant to
the making of an AER economic
regulatory decision relating to a scheme
pipeline service provider; and
(b) the scheme pipeline service provider or related
provider--
(i) does not provide the information to the
AER in accordance with the applicable
regulatory information instrument; or
(ii) provides information that is insufficient
(when compared to what was requested
under the applicable regulatory
information instrument).
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(2) Without limiting sections 56 and 57 and despite anything
to the contrary in this Law or the Rules, the AER--
(a) may make the AER economic regulatory decision
on the basis of the information the AER has at the
time it makes that decision; and
(b) in making that decision, may make reasonable
assumptions (including assumptions adverse to the
interests of the scheme pipeline service provider)
in respect of the matters the information required
under the regulatory information instrument would
have addressed had that information been provided
as required.
Subdivision 5 -- General
60. Providing to AER false and misleading information
A person must not, in purported compliance with a
regulatory information instrument requiring the person to
provide information to the AER, provide information to the
AER that the person knows is false or misleading in a
material particular.
Maximum penalty:
(a) in the case of a natural person--$2 000;
(b) in the case of a body corporate--$10 000.
61. Person cannot rely on duty of confidence to avoid
compliance with regulatory information instrument
(1) A person must not refuse to comply with a regulatory
information instrument on the ground of any duty of
confidence.
(2) A person incurs, by complying with a regulatory
information instrument, no liability for breach of contract,
breach of confidence or any other civil wrong.
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62. Legal professional privilege not affected
A regulatory information instrument, and sections 56 and
57, are not to be taken as requiring a person to--
(a) provide to the AER information that is the subject
of legal professional privilege; or
(b) produce a document to the AER the production of
which would disclose information that is the
subject of legal professional privilege.
63. Protection against self-incrimination
(1) It is a reasonable excuse for a natural person to whom
section 56 applies not to comply with a regulatory
information notice served on the person requiring the
person to provide information to the AER if to do so might
tend to incriminate the person, or make the person liable to
a criminal penalty, under a law of this jurisdiction or
another participating jurisdiction.
(2) It is a reasonable excuse for a natural person to whom
section 57 applies not to comply with a general regulatory
information order made requiring the person to provide
information to the AER if to do so might tend to
incriminate the person, or make the person liable to a
criminal penalty, under a law of this jurisdiction or another
participating jurisdiction.
Division 5 -- Service provider performance reports
64. Preparation of service provider performance reports
(1) Subject to this section, the AER may prepare a report on
the financial performance or operational performance of 1
or more scheme pipeline service providers in providing
pipeline services by means of a scheme pipeline.
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Note--
The AER may only prepare a report under subsection (1)
if the preparation of the report will or is likely to
contribute to the achievement of the national gas
objective: see section 28.
(2) A report prepared under this section may--
(a) deal with the financial or operational performance
of the scheme pipeline service provider in relation
to--
(i) complying with pipeline service
standards; and
(ii) standards relating to the provision of
pipeline services to users or end users;
and
(iii) the profitability of scheme pipeline
service providers in providing pipeline
services; and
(b) if the AER considers it appropriate, deal with the
performance of the scheme pipeline service
provider in relation to other matters or things if
that performance is directly related to the
performance or exercise by the AER of an AER
economic regulatory function or power.
(3) A report prepared under this section may include--
(a) information provided to the AER by a person in
compliance with a regulatory information
instrument; and
(b) in the case of a report dealing with the financial
performance of 1 or more scheme pipeline service
providers, a comparison of the profitability of the
scheme pipeline service providers to which the
report relates from the provision of pipeline
services by them.
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(4) Before preparing a report under this section, the AER must,
in accordance with the Rules, consult with the persons or
bodies specified by the Rules.
(5) The AER may publish a report prepared under this section
on its website.
Division 6 -- Miscellaneous matters
65. Consideration by the AER of submissions or comments
made to it under this Law or the Rules
If, under this Law or the Rules, the AER publishes a notice
inviting submissions in relation to the making of an AER
economic regulatory decision, the AER, in making the
decision--
(a) must consider every submission it receives within
the period specified in the notice; and
(b) may, but need not, consider a submission it
receives after the period specified in the notice
expires.
66. Use of information provided under a notice under Division 3
or a regulatory information instrument
The AER may use information provided to it by a person in
compliance with a notice under section 42 or a regulatory
information instrument for any purpose connected with the
performance or exercise of a function or power of the AER
under this Law or the Rules.
67. AER to inform certain persons of decisions not to investigate
breaches, institute proceedings or serve infringement notices
(1) If the AER is given information by any person in relation
to a breach or a possible breach of this Law, the
Regulations or the Rules by a person but--
(a) decides not to investigate that breach or possible
breach; or
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(b) following an investigation, decides not to--
(i) institute any proceedings under Chapter 8
in respect of that breach or possible
breach; or
(ii) serve an infringement notice in
accordance with Chapter 8 Part 7 in
respect of that breach or possible breach,
the AER must notify that person of that decision in
writing.
(2) This section does not apply if the person gave the
information to the AER anonymously.
68. AER enforcement guidelines
(1) The AER may prepare guidelines about the matters it will
have regard to before--
(a) making an application under section 231; or
(b) serving an infringement notice under section 277.
(2) The AER must publish guidelines prepared under
subsection (1) on its website.
Part 1A -- Functions and powers of WA arbitrator
68A. Manner in which WA arbitrator must perform or exercise
certain functions or powers
(1) The WA arbitrator must, in performing or exercising a
function or power that relates to an access determination,
perform or exercise that function or power in a manner that
will or is likely to contribute to the achievement of the
national gas objective.
(2) In addition, the WA arbitrator--
(a) must take into account the revenue and pricing
principles when making an access determination
relating to a rate or charge for a pipeline service;
and
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(b) may take into account the revenue and pricing
principles when performing or exercising any
other function or power that relates to an access
determination, if the WA arbitrator considers it
appropriate to do so.
(3) For the purposes of subsection (2)(a), a reference to a
reference service in the revenue and pricing principles must
be read as a reference to a pipeline service.
Part 2 -- Functions and powers of the Australian Energy
Market Commission
Division 1 -- General
69. Functions and powers of the AEMC
(1) The AEMC has the following functions and powers:
(a) the Rule making functions and powers conferred
on it under this Law and the Regulations;
(b) the market development functions conferred on it
under this Law and the Rules;
(c) any other functions and powers conferred on it
under this Law and the Rules.
(2) The AEMC has power to do all things necessary or
convenient to be done for or in connection with the
performance of its functions.
70. Delegations
Any delegation by the AEMC under section 20 of the
Australian Energy Market Commission Establishment
Act 2004 of South Australia extends to, and has effect for
the purposes of, this Law, the Regulations and the Rules.
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71. Confidentiality
Section 24 of the Australian Energy Market Commission
Establishment Act 2004 of South Australia has effect for
the purposes of this Law, the Regulations and the Rules as
if it formed part of this Law.
Note--
See also Chapter 10 Part 2 Division 2.
72. AEMC must have regard to national gas objective
In performing or exercising any function or power under
this Law, the Regulations or the Rules, the AEMC must
have regard to the national gas objective.
73. AEMC must have regard to MCE statements of policy
principles in relation to Rule making and reviews
The AEMC must have regard to any relevant MCE
statement of policy principles--
(a) in making a Rule; or
(b) in conducting a review under section 83.
Division 2 -- Rule making functions and powers of the AEMC
74. Subject matter for National Gas Rules
(1) Subject to this Division, the AEMC, in accordance with
this Law and the Regulations, may make Rules, to be
known, collectively, as the "National Gas Rules", for or
with respect to--
(a) regulating--
(i) access to pipeline services;
(ii) the provision of pipeline services;
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(iii) the collection, use, disclosure, copying,
recording, management and publication of
information in relation to natural gas
services;
(b) any matter or thing contemplated by this Law, or
is necessary or expedient for the purposes of this
Law.
Note--
The procedure for the making of a Rule by the AEMC is
set out in Chapter 9 Part 3.
(2) Without limiting subsection (1), the AEMC, in accordance
with this Law and the Regulations, may make Rules for or
with respect to any matter or thing specified in Schedule 1
to this Law.
(3) Rules made by the AEMC in accordance with this Law and
the Regulations may--
(a) be of general or limited application;
(b) vary according to the persons, times, places or
circumstances to which they are expressed to
apply;
(c) confer functions or powers on, or leave any matter
or thing to be decided or determined by--
(i) the AER, the AEMC or the Bulletin
Board operator; or
(ii) any panel or committee established by the
AEMC; or
(iii) any other body established, or person
appointed, in accordance with the Rules;
(d) confer rights or impose obligations on any person
or a class of person (other than the AER or the
AEMC);
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(e) confer a function on the AER, the AEMC or the
Bulletin Board operator to make or issue
guidelines, tests, standards, procedures or any
other document (however described) in
accordance with the Rules, including guidelines,
tests, standards, procedures or any other document
(however described) that leave any matter or thing
to be determined by the AER, the AEMC or the
Bulletin Board operator;
(f) empower or require any person (other than a
person referred to in paragraph (e)) or body to
make or issue guidelines, tests, standards,
procedures or any other document (however
described) in accordance with the Rules;
(g) apply, adopt or incorporate wholly or partially, or
as amended by the Rules, the provisions of any
standard, rule, specification, method or document
(however described) formulated, issued,
prescribed or published by any person, authority or
body whether--
(i) as formulated, issued, prescribed or
published at the time the Rules are made
or at any time before the Rules are made;
or
(ii) as amended from time to time;
(h) confer a power of direction on the AER, the
AEMC or the Bulletin Board operator to require a
person conferred a right, or on whom an obligation
is imposed, under the Rules to comply with--
(i) a guideline, test, standard, procedure or
other document (however described)
referred to in paragraph (e) or (f); or
(ii) a standard, rule, specification, method or
document (however described) referred to
in paragraph (g);
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(i) if this section authorises or requires Rules that
regulate any matter or thing, prohibit that matter or
thing or any aspect of that matter of thing;
(j) provide for the review of, or a right of appeal
against, a decision or determination made under
the Rules and for that purpose, confer jurisdiction
on the Court;
(k) require a form prescribed by or under the Rules, or
information or documents included in, attached to
or given with the form, to be verified by statutory
declaration;
(l) in a specified case or class of case, exempt a
person or body performing or exercising a
function or power, or conferred a right, or on
whom an obligation is imposed, under the Rules or
a class of any such person or body from
complying with a provision, or a part of a
provision, of the Rules;
(m) provide for the modification or variation of a
provision of the Rules (with or without
substitution of a provision of the Rules or a part of
a provision of the Rules) as it applies to a person
or body performing or exercising a function or
power, or conferred a right, or on whom an
obligation is imposed, under the Rules or a class of
any such person or body;
(n) confer an immunity on, or limit the liability of,
any person or body performing or exercising a
function or power, or conferred a right, or on
whom an obligation is imposed under the Rules;
(o) contain provisions of a savings or transitional
nature consequent on the amendment or revocation
of a Rule.
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75. Rules relating to MCE or Ministers of participating
jurisdictions require MCE consent
The AEMC must not, without the consent of the MCE,
make a Rule that confers a right or function, or imposes an
obligation, on the MCE or a Minister of a participating
jurisdiction.
Note--
The term function is defined in clause 10 of Schedule 2 to this Law
to include "duty".
76. AEMC must not make Rules that create criminal offences or
impose civil penalties for breaches
The AEMC must not make a Rule that--
(a) creates an offence for a breach of a provision of
the Rules; or
(b) provides for a criminal penalty or civil penalty for
a breach of a provision of the Rules.
77. Documents etc applied, adopted and incorporated by Rules
to be publicly available
(1) The AEMC must make publicly available--
(a) every standard, rule, specification, method or
document (however described) formulated, issued,
prescribed or published by any person, authority or
body that is applied, adopted or incorporated by a
Rule; and
(b) if a standard, rule, specification, method or
document (however described) formulated, issued,
prescribed or published by any person, authority or
body is applied, adopted or incorporated by a Rule
as amended from time to time--any amendment to
that standard, rule, specification, method or
document.
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(2) For the purposes of subsection (1), the AEMC makes a
standard, rule, specification, method or document (however
described) formulated, issued, prescribed or published by
any person, authority or body applied, adopted or
incorporated by any Rule publicly available if the
AEMC--
(a) publishes the standard, rule, specification, method
or document on the AEMC's website; or
(b) specifies a place from which the standard, rule,
specification, method or document may be
obtained or purchased (as the case requires).
Division 3 -- Committees, panels and working groups of the AEMC
78. Establishment of committees, panels and working groups
The AEMC may establish committees, panels and working
groups to--
(a) provide advice on specified aspects of the
AEMC's functions; or
(b) undertake any other activity in relation to the
AEMC's functions as is specified by the AEMC.
Division 4 -- MCE directed reviews
79. MCE directions
(1) The MCE may give a written direction to the AEMC that
the AEMC conduct a review into--
(a) any matter relating to a market for gas (including
services provided in a market for gas); or
(b) any matter relating to access to pipelines or to
pipeline services provided by means of pipelines;
or
(c) the operation and effectiveness of the Rules; or
(d) any matter relating to the Rules; or
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(e) the effectiveness of competition in a market for
gas for the purpose of giving advice about whether
to retain, remove or reintroduce price controls on
prices for retail gas services.
(2) A direction given to the AEMC under this section is
binding on the AEMC and must be complied with despite
anything to the contrary in the Rules.
(3) A direction given under this section must be published in
the South Australian Government Gazette.
(4) The AEMC must cause a direction given under this section
to be published on its website.
80. Terms of reference
(1) The terms of reference of a MCE directed review will be as
specified in the direction given by the MCE.
Example--
The terms of reference may require a MCE directed
review to be conducted--
(a) about a specific matter within a specified time;
or
(b) whenever a specified event occurs; or
(c) on an annual basis.
(2) Without limiting subsection (1), the MCE may in its
direction to the AEMC do 1 or more of the following:
(a) require the AEMC to give a report on a MCE
directed review to the MCE within a specified
period;
(b) require the AEMC to make the report on a MCE
directed review publicly available or available to
specified persons or bodies;
(c) require the AEMC to make a draft report publicly
available or available to specified persons or
bodies during a MCE directed review;
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(d) require the AEMC to consider specified matters in
the conduct of a MCE directed review;
(e) require the AEMC to have specified objectives in
the conduct of a MCE directed review which need
not be limited by the national gas objective;
(f) require the AEMC to assess a particular matter in
relation to services provided in a market for gas
against specified criteria or a specified
methodology;
(g) require the AEMC--
(i) to assess a particular matter in relation to
services provided in a market for gas; and
(ii) to develop appropriate and relevant
criteria, or an appropriate and relevant
methodology, for the purpose of the
required assessment;
(h) give the AEMC other specific directions in respect
of the conduct of a MCE directed review.
81. Notice of MCE directed review
(1) The AEMC must publish notice of a MCE directed review
on its website and in a newspaper circulating generally
throughout Australia.
(2) The AEMC must publish a further such notice if a term of
reference or a requirement or direction relating to the MCE
directed review is varied.
82. Conduct of MCE directed review
Subject to any requirement or direction of the MCE, a
MCE directed review--
(a) may be conducted in such manner as the AEMC
considers appropriate; and
(b) may (but need not) involve public hearings.
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Division 5 -- Other reviews
83. Rule reviews by the AEMC
(1) The AEMC may conduct a review into--
(a) the operation and effectiveness of the Rules; or
(b) any matter relating to the Rules.
(2) A review--
(a) may be conducted in such manner as the AEMC
considers appropriate; and
(b) may (but need not) involve public hearings.
(3) During the course of a review, the AEMC may--
(a) consult with any person or body that it considers
appropriate;
(b) establish working groups to assist it in relation to
any aspect, or any matter or thing that is the
subject of, the review;
(c) commission reports by other persons on its behalf
on any aspect, or matter or thing that is the subject
of, the review;
(d) publish discussion papers or draft reports.
(4) At the completion of a review, the AEMC must--
(a) give a copy of the report to the MCE; and
(b) publish a report or a version of a report from
which confidential information has been omitted
in accordance with section 331.
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Division 6 -- Miscellaneous matters
84. AEMC must publish and make available up to date versions
of Rules
The AEMC must, at all times--
(a) maintain, on its website, a copy of the National
Gas Rules, as in force from time to time; and
(b) make copies of the National Gas Rules, as in force
from time to time, available to the public for
inspection at its offices during business hours.
85. Fees
(1) The AEMC may charge a fee specified, or a fee calculated
in accordance with a formula or methodology specified, in
the Regulations for services provided by it in performing or
exercising any of its functions or powers under this Law,
the Regulations or the Rules.
(2) The fee must not be such as to amount to taxation.
86. Immunity from personal liability of AEMC officials
(1) No personal liability attaches to an AEMC official for an
act or omission in good faith in the performance or
exercise, or purported performance or exercise of a
function or power under this Law, the Regulations or the
Rules.
(2) A liability that would, but for subsection (1), lie against an
AEMC official lies instead against the AEMC.
(3) In this section--
AEMC official means--
(a) a member of the AEMC;
(b) the chief executive of the AEMC;
(c) a member of staff appointed by the AEMC.
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Part 3 -- Functions and powers of Ministers of
participating jurisdictions
87. Functions and powers of Minister of this participating
jurisdiction under this Law
(1) The Minister of this participating jurisdiction has the
functions and powers conferred on him or her under this
Law, the Regulations or the Rules.
(2) The Minister of this participating jurisdiction has power to
do all things necessary or convenient to be done for or in
connection with the performance of his or her functions.
(3) In this section--
Minister of this participating jurisdiction means the
Minister that administers the Act of this jurisdiction that
applies this Law as a law of this jurisdiction.
88. Functions and powers of Commonwealth Minister under
this Law
(1) The Commonwealth Minister has the functions and powers
conferred on him or her under this Law, the Regulations or
the Rules.
(2) The Commonwealth Minister has power to do all things
necessary or convenient to be done for or in connection
with the performance of his or her functions.
Part 4 -- Functions and powers of the NCC
89. Functions and powers of NCC under this Law
(1) The NCC has the functions and powers conferred on it
under this Law, the Regulations or the Rules.
(2) The NCC has power to do all things necessary or
convenient to be done for or in connection with the
performance of its functions.
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90. Confidentiality
(1) The NCC must take all reasonable measures to protect
from unauthorised use or disclosure information given to it
in confidence in, or in connection with, the performance of
its functions or the exercise of its powers under this Law,
the Regulations or the Rules.
(2) For the purposes of subsection (1), the disclosure of
information as required or permitted by this Law, a law of
the Commonwealth, a State or Territory is taken to be
authorised use and disclosure of the information.
(3) Disclosing information to 1 of the following is authorised
use and disclosure of the information:
(a) the ACCC;
(b) the AER;
(c) the ERA;
(d) the AEMC;
(e) any staff or consultant assisting a body mentioned
in paragraph (a) to (d) in performing its functions
or exercising its powers;
(f) any other person or body prescribed by the
Regulations for the purpose of this paragraph.
(4) A person or body to whom information is disclosed under
subsection (3) may use the information for any purpose
connected with the performance of the functions, or the
exercise of the powers, of the person or body.
(5) The NCC may impose conditions to be complied with in
relation to information disclosed under subsection (3).
(6) For the purposes of subsection (1), the use or disclosure of
information by a person for the purposes of performing the
person's functions, or exercising the person's powers, as--
(a) a Councillor or a person referred to in section 29M
of the Trade Practices Act 1974 of the
Commonwealth; or
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(b) a person who is authorised to perform or exercise
a function or power of, or on behalf of, the NCC,
is taken to be authorised use and disclosure of the
information.
(7) Regulations made for the purposes of this section may
specify uses of information and disclosures of information
that are authorised uses and authorised disclosures for the
purposes of this section.
(8) Nothing in any of the above subsections limits--
(a) anything else in any of those subsections; or
(b) what may otherwise constitute, for the purposes of
subsection (1), authorised use or disclosure of
information.
(9) In this section--
Councillor has the same meaning as in the Trade Practices
Act 1974 of the Commonwealth.
Note--
See also Chapter 10 Part 2 Division 2.
Part 5 -- Functions and powers of Tribunal
91. Functions and powers of Tribunal under this Law
(1) The Tribunal has the functions and powers conferred on it
under Chapter 8 Part 5 and any Regulations made for the
purposes of that Division.
(2) The Tribunal has power to do all things necessary or
convenient to be done for or in connection with the
performance of its functions.
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Coverage of pipelines Part 1
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Chapter 3 -- Coverage and classification of pipelines
Part 1 -- Coverage of pipelines
Division 1 -- Coverage determinations
92. Application for recommendation that a pipeline be a
covered pipeline
(1) Any person may apply for a determination that a pipeline
be a covered pipeline (a coverage determination).
(2) An application for a coverage determination--
(a) is to be made to the NCC in accordance with the
Rules; and
(b) must contain the information required by the
Rules; and
(c) must be accompanied by the fee prescribed by the
Regulations (if any).
93. Application to be dealt with in accordance with the Rules
Subject to section 94, on receiving an application under
section 92 the NCC must deal with it in accordance with
the Rules.
94. NCC may defer consideration of application in certain
cases
(1) This section applies if an application under section 92 is
made in relation to a proposed pipeline after--
(a) an application has been made to the AER under
the Rules for the approval, by the AER, of the
tender process for the construction and operation
of the proposed pipeline as a competitive tender
process; or
(b) a tender approval decision has been made in
respect of the tender process for the construction
and operation of the proposed pipeline.
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(2) The NCC may defer consideration of whether to make a
recommendation in respect of the application until--
(a) the application for the approval, by the AER, of
the tender process for the construction and
operation of the proposed pipeline as a
competitive tender process has been rejected by
the AER under the Rules; or
(b) the tender approval decision--
(i) has been revoked under the Rules; or
(ii) has lapsed as provided under the Rules.
95. NCC coverage recommendation
(1) Subject to sections 94 and 96, the NCC must recommend
to the relevant Minister that the pipeline the subject of the
application--
(a) be a covered pipeline; or
(b) not be a covered pipeline.
Note--
See also Chapter 3 Part 2 Division 1 Subdivision 1.
(2) A recommendation under this section must--
(a) be made in accordance with this Law and the
Rules; and
(b) be made within the time specified by the Rules;
and
(c) contain the information required by the Rules; and
(d) be given to the persons specified by the Rules; and
(e) be made publicly available in accordance with the
Rules.
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(3) A recommendation under this section may recommend an
outcome different from the outcome sought in the
application under section 92.
Example--
An applicant may apply for a determination that the whole
of a pipeline be a covered pipeline. The NCC may
recommend that only a part of the pipeline the subject of
the application be covered or may recommend that the
pipeline not be covered.
(4) A recommendation under this section must be delivered to
the relevant Minister without delay.
96. NCC must not make coverage recommendation if tender
approval decision becomes irrevocable
Despite anything to the contrary in this Division, the
NCC--
(a) must not make a recommendation under section 95
if the pipeline is the subject of a tender approval
decision that--
(i) has not lapsed as provided under the
Rules; or
(ii) is not revoked under the Rules; and
(b) must, for the purposes of paragraph (a), treat the
application as having never been made.
97. Principles governing the making of a coverage
recommendation
(1) In making a coverage recommendation, the NCC--
(a) must give effect to the pipeline coverage criteria;
and
(b) in deciding whether or not the pipeline coverage
criteria are satisfied must have regard to the
national gas objective.
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(2) The NCC gives effect to the pipeline coverage criteria as
follows:
(a) if the NCC is satisfied that all the pipeline
coverage criteria are satisfied in relation to the
pipeline--the recommendation must be in favour
of the pipeline being a covered pipeline;
(b) if the NCC is not satisfied that all the pipeline
coverage criteria are satisfied in relation to the
pipeline--the recommendation must be against the
pipeline being a covered pipeline.
98. Initial classification decision to be made as part of
recommendation
(1) The NCC must, as part of a coverage recommendation,
classify the pipeline the subject of an application under
section 92 as a transmission pipeline or a distribution
pipeline (an initial classification decision). In doing so, the
NCC must apply the pipeline classification criterion.
(2) The NCC must as part of an initial classification
decision--
(a) if it classifies the pipeline the subject of the
application as a transmission pipeline--determine
whether the transmission pipeline is also a cross
boundary transmission pipeline;
(b) if it classifies the pipeline the subject of the
application as a distribution pipeline--determine
whether the distribution pipeline is also a cross
boundary distribution pipeline.
(3) The NCC must also determine, as part of an initial
classification decision, the participating jurisdiction with
which the pipeline the subject of the application under
section 92 is most closely connected if the NCC determines
the pipeline is also a cross boundary distribution pipeline.
In doing so, the NCC must apply the pipeline classification
criterion.
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99. Relevant Minister's determination on application
(1) On receiving a coverage recommendation, the relevant
Minister must decide whether to make a coverage
determination in respect of the pipeline to which the
recommendation relates.
(2) The relevant Minister must use his or her best endeavours
to make the decision within 20 business days after
receiving the coverage recommendation.
(3) If the relevant Minister is unable to make the decision
within the period specified under subsection (2), he or she
must make the decision as soon as reasonably practicable
after the end of the specified period.
(4) The relevant Minister, for the purpose of making the
decision, may request submissions or comments in relation
to an application under section 92.
(5) A coverage determination or a decision not to make a
coverage determination must--
(a) be made in accordance with this Law and the
Rules; and
(b) contain the information required by the Rules; and
(c) be given to the persons specified by the Rules; and
(d) be made publicly available in accordance with the
Rules.
(6) In the case of a coverage determination, the determination
must specify the date the determination takes effect.
(7) A coverage determination may have an outcome different
to the outcome--
(a) sought in the application under section 92; or
(b) of the coverage recommendation.
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Example--
An applicant may apply for a determination that the whole
of a pipeline be a covered pipeline. The NCC may
recommend that only a part of the pipeline the subject of
the application be covered. The relevant Minister may
determine that different parts of the pipeline to those
recommended by the NCC be covered.
100. Principles governing the making of a coverage
determination or decision not to do so
(1) In deciding whether to make a coverage determination
under this Division, the relevant Minister--
(a) must give effect to the pipeline coverage criteria;
and
(b) in deciding whether or not the pipeline coverage
criteria are satisfied in relation to the pipeline--
(i) must have regard to the national gas
objective; and
(ii) must have regard to the coverage
recommendation; and
(iii) must take into account any submissions or
comments he or she receives on a request
under section 99(4); and
(iv) may take into account any relevant
submissions and comments made to the
NCC by the public under the Rules in
relation to the application.
(2) The relevant Minister gives effect to the pipeline coverage
criteria as follows:
(a) if the relevant Minister is satisfied that all the
pipeline coverage criteria are satisfied in relation
to the pipeline--the Minister must make a
coverage determination;
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(b) if the relevant Minister is not satisfied that all the
pipeline coverage criteria are satisfied in relation
to the pipeline--the Minister must not make a
coverage determination.
101. Operation and effect of coverage determination
The pipeline the subject of a coverage determination
becomes a covered pipeline--
(a) when the coverage determination takes effect; and
(b) continues to be a covered pipeline while the
coverage determination remains in effect.
Division 2 -- Coverage revocation determinations
102. Application for a determination that a pipeline no longer be
a covered pipeline
(1) Any person may apply for a determination that a covered
pipeline no longer be a covered pipeline (a coverage
revocation determination).
(2) An application for a coverage revocation determination--
(a) is to be made to the NCC in accordance with the
Rules; and
(b) must contain the information required by the
Rules; and
(c) must be accompanied by the fee prescribed by the
Regulations (if any).
103. Application to be dealt with in accordance with the Rules
On receiving an application under section 102, the NCC
must deal with it in accordance with the Rules.
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104. NCC coverage revocation recommendation
(1) The NCC must make a recommendation to the relevant
Minister as to whether the covered pipeline the subject of
the application should continue to be a covered pipeline.
Note--
See also section 119.
(2) A recommendation under this section must--
(a) be made in accordance with this Law and the
Rules; and
(b) be made within the time specified by the Rules;
and
(c) contain the information required by the Rules; and
(d) be given to the persons specified by the Rules; and
(e) be made publicly available in accordance with the
Rules.
(3) A recommendation under this section may recommend an
outcome different from the outcome sought in the
application under section 102.
Example--
A service provider may apply for a determination that
revokes the coverage of the covered pipeline by means of
which the provider provides pipeline services. The NCC
may recommend that the coverage of the covered pipeline
be only partly revoked or not be revoked.
(4) A recommendation under this section must be delivered to
the relevant Minister without delay.
105. Principles governing the making of a coverage revocation
recommendation
(1) In making a coverage revocation recommendation, the
NCC--
(a) must give effect to the pipeline coverage criteria;
and
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(b) in deciding whether or not the pipeline coverage
criteria are satisfied must have regard to the
national gas objective.
(2) The NCC gives effect to the pipeline coverage criteria as
follows:
(a) if the NCC is satisfied that all the pipeline
coverage criteria are satisfied in relation to the
pipeline--the recommendation must be in favour
of the pipeline continuing to be a covered pipeline;
(b) if the NCC is not satisfied that all the pipeline
coverage criteria are satisfied in relation to the
pipeline--the recommendation must be in favour
of the pipeline no longer being a covered pipeline.
106. Relevant Minister's determination on application
(1) On receiving a coverage revocation recommendation, the
relevant Minister must decide whether to make a coverage
revocation determination in respect of the pipeline to which
the recommendation relates.
(2) The relevant Minister must use his or her best endeavours
to make the decision within 20 business days after
receiving the coverage revocation recommendation.
(3) If the relevant Minister is unable to make the decision
within the period specified under subsection (2), he or she
must make the decision as soon as reasonably practicable
after the end of the specified period.
(4) The relevant Minister, for the purpose of making the
decision, may request submissions or comments in relation
to an application under section 102.
(5) A coverage revocation determination or a decision not to
make a coverage revocation determination must--
(a) be made in accordance with this Law and the
Rules; and
(b) contain the information required by the Rules; and
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(c) be given to the persons specified by the Rules; and
(d) be made publicly available in accordance with the
Rules.
(6) In the case of a coverage revocation determination, the
determination must specify the date the determination takes
effect.
(7) A coverage revocation determination may have an outcome
different to the outcome--
(a) sought in the application under section 102; or
(b) of the coverage revocation recommendation.
Example--
A service provider may apply for a determination that
revokes the coverage of the covered pipeline by means of
which the provider provides pipeline services. The NCC
may recommend that the coverage of the covered pipeline
be only partly revoked. The relevant Minister may make a
determination that revokes coverage of different parts of
the covered pipeline to those parts in relation to which the
NCC recommended coverage be revoked.
107. Principles governing the making of a coverage revocation
determination or decision not to do so
(1) In deciding whether to make a coverage revocation
determination under this Division, the relevant Minister--
(a) must give effect to the pipeline coverage criteria;
and
(b) in deciding whether or not the pipeline coverage
criteria are satisfied in relation to the pipeline--
(i) must have regard to the national gas
objective; and
(ii) must have regard to the coverage
revocation recommendation; and
(iii) must take into account any submissions or
comments he or she receives on a request
under section 106(4); and
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(iv) may take into account any relevant
submissions and comments made to the
NCC by the public under the Rules in
relation to the application.
(2) The relevant Minister gives effect to the pipeline coverage
criteria as follows:
(a) if the relevant Minister is satisfied that all the
pipeline coverage criteria are satisfied in relation
to the pipeline--the Minister must not make a
coverage revocation determination;
(b) if the relevant Minister is not satisfied that all the
pipeline coverage criteria are satisfied in relation
to the pipeline--the Minister must make a
coverage revocation determination.
108. Operation and effect of coverage revocation determination
The pipeline the subject of a coverage revocation
determination ceases to be a covered pipeline when the
coverage revocation determination takes effect.
Part 2 -- Light regulation of covered pipeline services
Division 1 -- Making of light regulation determinations
Subdivision 1 -- Decisions when pipeline is not a covered pipeline
109. Application of Subdivision
This Subdivision applies if--
(a) an application has been made under section 92 for
a coverage determination; and
(b) the pipeline the subject of the application is not a
designated pipeline.
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110. NCC's decision on light regulation of pipeline services
(1) The NCC must decide whether to make a determination
that the pipeline services provided or to be provided by
means of the pipeline are light regulation services (a light
regulation determination).
(2) The NCC must make its decision under subsection (1)--
(a) at the same time as it makes the coverage
recommendation; and
(b) within the time it must make the coverage
recommendation.
(3) A light regulation determination or a decision not to make
a light regulation determination must--
(a) be made in accordance with this Law and the
Rules; and
Note--
For example, see section 122.
(b) be attached to the coverage recommendation; and
(c) contain the information required by the Rules.
Note--
If the NCC makes a light regulation determination, and the relevant
Minister makes the coverage determination, the service provider
may submit a limited access arrangement in respect of the light
regulation services to the AER for approval: see section 116.
Subdivision 2 -- Decisions when pipeline is a covered pipeline
111. Application of Subdivision
This Subdivision applies if a service provider provides
pipelines services--
(a) by means of a covered pipeline that is not a
designated pipeline; and
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(b) to which an applicable access arrangement
approved or made under a full access arrangement
decision applies.
112. Application
(1) A service provider may apply to the NCC for a
determination that pipeline services provided by the service
provider by means of a covered pipeline be light regulation
services (a light regulation determination).
(2) An application must--
(a) be in accordance with the Rules; and
(b) contain the information required by the Rules.
(3) An application may only be made in respect of all of the
pipeline services provided by means of the covered
pipeline.
113. Application to be dealt with in accordance with the Rules
On receiving an application under section 112, the NCC
must deal with it in accordance with the Rules.
114. NCC's decision on light regulation of pipeline services
(1) The NCC must decide whether to make a light regulation
determination within--
(a) 4 months after receiving an application under
section 112; or
(b) if the Rules specify a later period, that period.
(2) A light regulation determination or a decision not to make
a light regulation determination must--
(a) be made in accordance with this Law and the
Rules; and
Note--
For example, see section 122.
(b) contain the information required by the Rules; and
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(c) be given to the persons specified by the Rules; and
(d) be made publicly available in accordance with the
Rules.
Note--
If the NCC makes a light regulation determination, the service
provider may submit a limited access arrangement in respect of the
light regulation services to the AER for approval: see section 116.
Subdivision 3 -- Operation and effect of light
regulation determinations
115. When light regulation determinations take effect
(1) A light regulation determination takes effect--
(a) in the case of a light regulation determination
made under Subdivision 1--on the day the
relevant coverage determination takes effect;
(b) in the case of a light regulation determination
made under Subdivision 2--60 business days after
the light regulation determination is made.
(2) A light regulation determination continues in operation
until--
(a) it is revoked by operation of section 117(5); or
(b) a decision under section 119(2) or 120 takes
effect; or
(c) it is revoked by operation of section 123(2); or
(d) it is revoked by operation of section 124.
116. Submission of limited access arrangement for light
regulation services
(1) A service provider may, in respect of light regulation
services the service provider provides or intends to
provide, submit a limited access arrangement to the AER
for approval by the AER under the Rules.
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(2) If the service provider chooses to submit a limited access
arrangement in accordance with subsection (1), the limited
access arrangement must--
(a) be submitted in accordance with the Rules; and
(b) contain the information required by the Rules.
(3) A service provider must submit to the AER, for approval
by the AER under the Rules, revisions to an applicable
access arrangement that is a limited access arrangement
and that applies to the light regulation services the provider
provides--
(a) in accordance with the Rules; and
(b) within the period specified by the Rules.
Division 2 -- Revocation of light regulation determinations
Subdivision 1 -- On advice from service providers
117. Advice by service provider that light regulation services
should cease to be light regulation services
(1) A service provider may advise the NCC that it wishes that
the pipeline services it provides cease to be light regulation
services.
(2) An advice under subsection (1) must be in writing.
(3) On receiving an advice under subsection (1), the NCC
must, without delay, publish notice of receipt of that
advice--
(a) on its website; and
(b) in a newspaper circulating generally throughout
Australia.
(4) On publication of a notice under subsection (3) the service
provider must comply with section 132.
(5) The light regulation determination applying to the pipeline
services is, by force of this section, revoked on the same
day that an access arrangement that applies to the pipeline
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services provided by that service provider is, as the case
requires, approved or made under a full access arrangement
decision.
(6) On the revocation of the light regulation determination the
pipeline services to which the light regulation
determination applied cease to be light regulation services.
Subdivision 2 -- On application by persons other than
service providers
118. Application (other than by service provider) for revocation
of light regulation determinations
(1) A person (other than the service provider who provides
light regulation services) may apply to the NCC for the
revocation of a light regulation determination relating to
those services.
(2) An application under subsection (1) must--
(a) be in accordance with the Rules; and
(b) contain the information required by the Rules.
119. Decisions on applications made around time of applications
for coverage revocation determinations
(1) This section applies if an application is made under
section 118 and--
(a) there is an application for a coverage revocation
determination under section 102 under
consideration--
(i) in respect of the covered pipeline by
means of which the light regulation
services the subject of the application
under section 118 are provided; and
(ii) in respect of which the NCC has not made
a coverage revocation recommendation;
or
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(b) an application for a coverage revocation
determination is made under section 102 in respect
of the covered pipeline by means of which the
light regulation services the subject of the
application under section 118 are provided--
(i) after the application under section 118;
but
(ii) before the NCC makes its decision in
respect of the application under
section 118.
(2) Despite anything to the contrary in this Part, the NCC must
make its decision in respect of the application under this
section.
(3) On receiving the application under section 118, the NCC
must decide whether to revoke the light regulation
determination.
(4) The NCC must make its decision under subsection (3)--
(a) at the same time as it makes the coverage
revocation recommendation; and
(b) within the time it must make the coverage
revocation recommendation.
(5) A decision under subsection (3) must--
(a) be made in accordance with this Law and the
Rules; and
Note--
For example, see section 122.
(b) be attached to the coverage revocation
recommendation; and
(c) contain the information required by the Rules.
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120. NCC decision on application where no application for a
coverage revocation recommendation
(1) This section applies if--
(a) an application is made under section 118; and
(b) no application for a coverage revocation
determination in respect of the covered pipeline
(by means of which the light regulation services
the subject of the application under section 118)
are provided is made before the NCC makes its
decision in respect of the application under
section 118.
(2) Subject to this section, on receiving an application under
section 118 the NCC must deal with it in accordance with
the Rules.
(3) The NCC must decide whether to revoke a light regulation
determination within--
(a) 4 months after receiving an application under
section 118; or
(b) if the Rules specify a later period, that period.
(4) A decision under this section must--
(a) be made in accordance with this Law and the
Rules; and
Note--
For example, see section 122.
(b) contain the information required by the Rules; and
(c) be given to the persons specified by the Rules; and
(d) be made publicly available in accordance with the
Rules.
121. Operation and effect of decision of NCC under this Division
(1) Subject to section 124, on the making of a decision under
section 119(2) or 120 revoking a light regulation
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determination, the service provider must comply with
section 132.
(2) However, the decision under section 119(2) or 120
revoking a light regulation determination does not take
effect until an access arrangement that applies to the
pipeline services provided by that service provider is
approved or made under a full access arrangement
decision.
(3) The effect of a decision under section 119(2) or 120
revoking a light regulation determination is that the
pipeline services to which the light regulation
determination applied cease to be light regulation services.
Division 3 -- Principles governing light regulation determinations
122. Principles governing the making or revoking of light
regulation determinations
(1) In deciding whether to make a light regulation
determination under Division 1 or to revoke a light
regulation determination under Division 2, the NCC must
consider--
(a) the likely effectiveness of the forms of regulation
provided for under this Law and the Rules to
regulate the provision of the pipeline services (the
subject of the application) to promote access to
pipeline services; and
(b) the effect of the forms of regulation provided for
under this Law and the Rules on--
(i) the likely costs that may be incurred by an
efficient service provider; and
(ii) the likely costs that may be incurred by
efficient users and efficient prospective
users; and
(iii) the likely costs of end users.
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Note--
The forms of regulation provided for under this Law and
the Rules to regulate the provision of the pipeline services
by means of a covered pipeline are--
(a) making a light regulation determination so that
those services become light regulation services;
(b) not making a light regulation determination so
that those services are regulated under a full
access arrangement decision that approves or
makes the applicable access arrangement that
applies to those services.
(2) In doing so, the NCC--
(a) must have regard to the national gas objective; and
(b) must have regard to the form of regulation factors;
and
(c) may have regard to any other matters it considers
relevant.
Division 4 -- Revocation if coverage determination not made
123. Light regulation determination revoked if coverage
determination not made
(1) This section applies if--
(a) a light regulation determination has been made in
respect of pipeline services; but
(b) the pipeline by means of which those services will
be provided does not become a covered pipeline
because the relevant Minister, contrary to a
coverage recommendation recommending
coverage, makes a decision not to make a
coverage determination.
(2) The light regulation determination is, by force of this
section, revoked on the same day as the relevant Minister's
decision not to make a coverage determination takes effect.
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Division 5 -- Effect of pipeline ceasing to be covered pipeline
124. Light regulation services cease to be such services on
cessation of coverage of pipeline
If a pipeline by means of which light regulation services
are provided ceases to be a covered pipeline because of a
coverage revocation determination--
(a) the light regulation determination applying to the
light regulation services provided by means of that
pipeline is, by force of this section, revoked on the
same day the coverage revocation determination
takes effect; and
(b) to avoid doubt, the light regulation services to
which that determination applied cease to be light
regulation services on the same day.
Division 6 -- AER reviews into designated pipelines
125. AER reviews
(1) The MCE may request the AER to conduct a review into,
and report to it as to, whether a pipeline should continue to
be a designated pipeline.
(2) A service provider that provides pipeline services by means
of a designated pipeline may request the AER to conduct a
review into, and report to the MCE as to, whether that
pipeline should continue to be a designated pipeline.
(3) A request under subsection (1) or (2) must be in writing.
(4) On receiving a request under this section, the AER must
conduct a review as to whether the pipeline the subject of
the request should continue to be a designated pipeline.
(5) In conducting a review under this section, the AER must--
(a) have regard to--
(i) the national gas objective; and
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(ii) whether there has been a material change
in competition in a market served by the
designated pipeline; and
(b) consult, in accordance with the Rules, with the
public.
(6) On the completion of a review under this section, the AER
must prepare a report and--
(a) give the report to the MCE; and
(b) publish the report on its website.
(7) The AER must also give a copy of the report to the service
provider that has requested the review.
Part 3 -- Coverage of pipelines the subject of tender process
126. Tender approval pipelines deemed to be covered pipelines
(1) A pipeline to which a tender approval decision relates is
deemed to be a covered pipeline on and from the date the
tender approval decision becomes irrevocable by operation
of the Rules.
(2) The pipeline ceases to be a covered pipeline--
(a) if there is an applicable access arrangement that
applies to the pipeline services provided, or that
are to be provided by means of that pipeline--
when that arrangement expires; or
(b) when a coverage revocation determination made in
respect of that pipeline takes effect.
Note--
Under the Rules, the NCC will--
(a) classify the pipeline to be constructed and
operated in accordance with an approved tender
process as a cross boundary transmission
pipeline, cross boundary distribution pipeline,
transmission pipeline or distribution pipeline;
and
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(b) determine the relevant Minister for the purposes
of that pipeline.
Part 4 -- Coverage following approval of voluntary
access arrangement
127. Certain pipelines become covered pipelines on approval of
voluntary access arrangement
(1) This section applies if--
(a) a service provider voluntarily submits to the AER
for approval by the AER, under the Rules, a full
access arrangement that will apply to the pipeline
services provided, or that are to be provided, by
means of a pipeline; and
(b) that pipeline is not a covered pipeline.
(2) The pipeline is deemed to be a covered pipeline on the day
the voluntarily submitted full access arrangement takes
effect as an applicable access arrangement.
(3) The pipeline ceases to be a covered pipeline--
(a) when the applicable access arrangement that
applies to the pipeline services provided, or that
are to be provided, expires; or
(b) when a coverage revocation determination is made
in respect of that pipeline takes effect.
Note--
Under the Rules, the NCC will--
(a) classify the pipeline (by means of which the pipeline
services to which the arrangement relates are provided) as
a cross boundary transmission pipeline, cross boundary
distribution pipeline, transmission pipeline or distribution
pipeline; and
(b) determine the relevant Minister for the purposes of that
pipeline.
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Part 5 -- Reclassification of pipelines
128. Service provider may apply for reclassification of pipeline
(1) A service provider may, in respect of a pipeline by means
of which the service provider provides pipeline services,
apply to the NCC for the pipeline to be reclassified as--
(a) if the pipeline is a transmission pipeline--a
distribution pipeline; or
(b) if the pipeline is a distribution pipeline--a
transmission pipeline.
(2) The application must be accompanied by the fee prescribed
by the Regulations (if any).
129. Reclassification decision
(1) The NCC must make a decision (a reclassification
decision) within--
(a) 4 months after receiving an application under
section 128; or
(b) if the Rules specify a later period, that period.
(2) A reclassification decision must--
(a) be made in accordance with this Law and the
Rules; and
(b) contain the information required by the Rules; and
(c) be given to the persons specified by the Rules; and
(d) be made publicly available in accordance with the
Rules.
(3) In making a reclassification decision, the NCC must have
regard to--
(a) the national gas objective; and
(b) the pipeline classification criterion.
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(4) The NCC must also as part of the reclassification
decision--
(a) if it reclassifies the pipeline the subject of the
application as a transmission pipeline--determine
whether the transmission pipeline is also a cross
boundary transmission pipeline;
(b) if it reclassifies the pipeline the subject of the
application as a distribution pipeline--determine
whether the distribution pipeline is also a cross
boundary distribution pipeline.
(5) If, under subsection (4), the NCC determines that a
pipeline reclassified as a distribution pipeline is also a
cross boundary distribution pipeline, the NCC must
determine the participating jurisdiction with which the
cross boundary distribution pipeline is most closely
connected. In doing so, the NCC must have regard to the
jurisdictional determination criteria.
130. Effect of reclassification decision
On the making of a reclassification decision--
(a) the pipeline is, in accordance with the decision,
reclassified as either a transmission pipeline or
distribution pipeline; and
(b) the relevant Minister in respect of the pipeline is
the relevant Minister as provided under this Law.
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Chapter 4 -- General requirements for provision of
covered pipeline services
Part 1 -- General duties for provision of pipeline services by
covered pipelines
131. Service provider must be legal entity of a specified kind to
provide pipeline services by covered pipeline
A covered pipeline service provider must not provide a
pipeline service by means of a covered pipeline unless the
service provider is--
(a) a legal entity registered under the Corporations
Act 2001 of the Commonwealth; or
(b) a foreign company; or
(c) a corporation established by or under a law of this
jurisdiction or another participating jurisdiction,
whether or not that corporation has been
established for a public purpose; or
(d) the Crown in right of this jurisdiction or another
participating jurisdiction; or
(e) a person referred to in paragraph (a) to (d) and that
person provides a pipeline service by means of a
covered pipeline together with another person
referred to in paragraph (a) to (d).
132. Submission of full access arrangement or revisions to
applicable full access arrangements
(1) A covered pipeline service provider must submit to the
AER, for approval by the AER under the Rules, a full
access arrangement or revisions to an applicable access
arrangement that is a full access arrangement, in respect of
the pipeline services the provider provides or intends to
provide--
(a) in the circumstances specified by the Rules; and
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(b) within the period of time specified by the Rules.
(2) Subsection (1) does not apply--
(a) if the pipeline services that are, or are intended to
be, provided by the service provider light
regulation services; or
(b) to the extent the Rules provide subsection (1) is
not to apply.
Note--
A service provider who provides or intends to provide pipeline
services by means of an international pipeline to which a price
regulation applies must submit a limited access arrangement to the
AER for approval: see section 168.
133. Preventing or hindering access
(1) A person who is--
(a) a covered pipeline service provider; or
(b) a person who--
(i) is a party to an agreement with a service
provider relating to a pipeline service
provided by means of a covered pipeline;
or
(ii) as a result of an access determination is
entitled to a pipeline service provided by
means of a covered pipeline; or
(c) an associate of a service provider or a person
referred to in paragraph (b),
must not engage in conduct for the purpose of preventing
or hindering the access of another person to a pipeline
service provided by means of the covered pipeline.
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(2) For the purposes of subsection (1), a person is deemed to
engage in conduct for a particular purpose if--
(a) the conduct is or was engaged in for that purpose
or for a purpose that includes, or included, that
purpose; and
(b) that purpose is or was a substantial purpose.
(3) A person may be taken to have engaged in conduct for the
purpose referred to in subsection (1) even though, after all
the evidence has been considered, the existence of that
purpose is ascertainable only by inference from the conduct
of the person or of any other person or from other relevant
circumstances.
(4) Subsection (3) does not limit the manner in which the
purpose of a person may be established for the purpose of
subsection (1).
(5) In this section--
(a) a reference to engaging in conduct is a reference to
doing or refusing to do any act, including refusing
to supply a pipeline service or, without reasonable
grounds, limiting or disrupting a pipeline service,
or making, or giving effect to, a provision of, a
contract or arrangement, arriving at, or giving
effect to, a provision of, an understanding or
requiring the giving of, or giving, a covenant;
(b) a reference to refusing to do an act includes a
reference to--
(i) refraining (otherwise than inadvertently)
from doing that act; or
(ii) making it known that that act will not be
done.
(6) Subsection (1) does not apply to conduct engaged in in
accordance with an agreement, if the agreement was in
force on 30 March 1995.
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Example--
An example of conduct which may be prohibited if the requisite
purpose is established is refusing to supply, or limiting or disrupting
the supply of, a pipeline service to a user or prospective user for
technical or safety reasons without reasonable grounds.
134. Supply and haulage of natural gas
(1) If a producer states terms and conditions (whether or not
including the price) (the first terms) on which the producer
offers to supply natural gas through a covered pipeline that
is in operation at the time of the offer to a person at a place
other than the exit flange of the producer's processing
plant, the producer must, on request by the person, state
terms and conditions (including the price, if the price was
included in the first terms) (the second terms) on which the
producer will supply natural gas to the person at the exit
flange.
(2) If there is a difference in the price stated in the first terms
and the second terms, the producer must include in the
second terms a statement of the reasons for the difference.
(3) If the producer offers to supply natural gas to a person at a
place other than the exit flange of the producer's
processing plant, the producer must, on request, offer to
supply the gas at the exit flange on the terms and
conditions (including price) stated in accordance with this
section.
135. Covered pipeline service provider must comply with
queuing requirements
A covered pipeline service provider must comply with the
queuing requirements of an applicable access arrangement.
136. Covered pipeline service provider providing light regulation
services must not price discriminate
(1) A covered pipeline service provider must not engage in
price discrimination when providing light regulation
services.
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(2) Subsection (1) does not apply if the covered pipeline
service provider engages in price discrimination that is
conducive to efficient service provision.
Part 2 -- Structural and operational separation requirements
(ring fencing)
Division 1 -- Interpretation
137. Definitions
In this Part--
additional ring fencing requirement has the meaning
given by section 143(1);
compliance date means the date that is 6 months after the
date a pipeline becomes a covered pipeline;
marketing staff has the meaning given by section 138;
related business means the business of producing,
purchasing or selling natural gas or processable gas, but
does not include purchasing or selling of natural gas or
processable gas to the extent necessary--
(a) for the safe and reliable operation of a covered
pipeline; or
(b) to enable a service provider to provide balancing
services in connection with a covered pipeline.
138. Meaning of marketing staff
(1) A person is marketing staff of--
(a) a covered pipeline service provider, if the
person--
(i) is an officer, employee, consultant or
independent contractor or agent of the
covered pipeline service provider; and
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(ii) is directly involved in the sale, marketing
or advertising of pipeline services
(whether or not the person is also
involved in other activities);
(b) an associate of a covered pipeline service provider,
if the person--
(i) is an officer, employee, consultant or
independent contractor or agent of the
associate; and
(ii) is directly involved in the sale, marketing
or advertising of pipeline services
(whether or not the person is also
involved in other activities).
(2) A person is not marketing staff of a covered pipeline
service provider, or an associate of a covered pipeline
service provider, if--
(a) the person's function or role (as an officer,
employee, consultant or independent contractor or
agent of a covered pipeline service provider, or an
associate of a covered pipeline service provider) is
only to provide technical, administrative, legal and
accounting services to that provider or associate;
or
(b) the sale, marketing or advertising of pipeline
services is only an incidental part of the person's
function or role (as an officer, employee,
consultant or independent contractor or agent of a
covered pipeline service provider, or an associate
of a covered pipeline service provider).
Example--
A person in the position of general manager of marketing of a
covered pipeline service provider or an associate of a covered
pipeline service provider would be marketing staff whereas a person
in the position of chief executive officer, or chief financial officer,
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of a covered pipeline service provider or an associate of a covered
pipeline service provider would not be marketing staff.
Division 2 -- Minimum ring fencing requirements
139. Carrying on of related businesses prohibited
On and after the compliance date, a covered pipeline
service provider must not carry on a related business.
140. Marketing staff and the taking part in related businesses
(1) On and after the compliance date, a covered pipeline
service provider must ensure that none of its marketing
staff are officers, employees, consultants, independent
contractors or agents of an associate of the covered pipeline
service provider that takes part in a related business.
(2) On and after the compliance date, a covered pipeline
service provider must ensure that none of its officers,
employees, consultants, independent contractors or agents
are marketing staff of an associate of the covered pipeline
service provider that takes part in a related business.
141. Accounts that must be prepared, maintained and kept
On and after the compliance date, a covered pipeline
service provider must prepare, maintain and keep--
(a) separate accounts in respect of pipeline services
provided by means of every covered pipeline
owned, operated or controlled by the covered
pipeline service provider; and
(b) a consolidated set of accounts in respect of the
whole of the business of the covered pipeline
service provider.
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Division 3 -- Additional ring fencing requirements
142. Division does not limit operation of Division 2
This Division does not limit Division 2.
143. AER ring fencing determinations
(1) Subject to this Division and subject to and in accordance
with the Rules, the AER may make a determination
requiring a covered pipeline service provider or associate
of a covered pipeline service provider named in the
determination to do, or refrain from doing, a thing
specified in the determination (an additional ring fencing
requirement).
(2) In specifying an additional ring fencing requirement the
AER must have regard to the following principles:
(a) in the case where 1 part of the business of a
covered pipeline service provider (business
unit A) is providing pipeline services to another
part of the business of the covered pipeline service
provider (business unit B), the covered pipeline
service provider must ensure that business unit A
provides the pipeline services to business unit B as
if business unit B were a separate unrelated entity;
(b) in the case where a covered pipeline service
provider is providing pipeline services to an
associate of the service provider, the covered
pipeline service provider must ensure that those
services are provided as if the associate of the
covered pipeline service provider were a separate
unrelated entity;
(c) users and prospective users should have sufficient
information in order to understand whether a
covered pipeline service provider is complying
with paragraph (a) or (b).
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(3) The AER must--
(a) notify, in writing, the covered pipeline service
provider or associate named in the AER ring
fencing determination of the making of that
determination; and
(b) give the covered pipeline service provider or
associate a copy of the AER ring fencing
determination.
(4) An AER ring fencing determination must specify the date
on and after which the covered pipeline service provider or
associate of a covered pipeline service provider must do, or
refrain from doing, a thing specified in the determination (a
notified compliance date).
(5) A notified compliance date must not be a date that is earlier
than 10 business days after the date the covered pipeline
service provider or associate of a covered pipeline service
provider is given a copy of the AER ring fencing
determination.
(6) A covered pipeline service provider or associate of a
covered pipeline service provider must comply with every
additional ring fencing requirement specified in an AER
ring fencing determination on and after the notified
compliance date.
144. AER to have regard to likely compliance costs of additional
ring fencing requirements
In making an AER ring fencing determination the AER
must have regard to the likely costs that may be incurred
by, as the case requires--
(a) an efficient covered pipeline service provider; or
(b) an efficient associate of a covered pipeline service
provider,
in complying with an additional ring fencing requirement
specified in the determination.
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s. 145
145. Types of ring fencing requirements that may be specified in
an AER ring fencing determination
Without limiting what may be specified as an additional
ring fencing requirement, the AER, in an AER ring fencing
determination, may require a covered pipeline service
provider to--
(a) ensure that its business and business activities are
conducted, structured and arranged in the
particular manner specified;
Example 1--
An AER ring fencing determination may require
the covered pipeline service provider to ensure
that persons employed or engaged by the
covered pipeline service provider in relation to
the provision of pipeline services are not also
associates, or employed by associates, of the
covered pipeline service provider that take part
in a related business and how this must be
effected.
Example 2--
An AER ring fencing determination may require
the covered pipeline service provider to put in
place electronic, physical and procedural
security measures in respect of the offices and
computer systems of the covered pipeline
service provider, and of the offices and
computer systems of its associates, so that
certain specified employees or persons engaged
by the covered pipeline service provider do not
have access to certain specified information.
(b) in a specified manner, disclose, to the AER and to
the public, specified information in a specified
manner about its business operations, structure and
arrangements, and its business activities.
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Part 2 Structural and operational separation requirements (ring
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s. 146
Division 4 -- AER ring fencing exemptions
146. Exemptions from minimum ring fencing requirements
(1) A covered pipeline service provider may, in accordance
with the Rules, apply to the AER for an exemption from--
(a) the requirement under section 139; or
(b) a requirement under section 140; or
(c) the requirement under section 141.
(2) On receiving an application under subsection (1), the AER,
subject to and in accordance with the Rules, may exempt a
covered pipeline service provider from--
(a) the requirement under section 139; or
(b) a requirement under section 140; or
(c) the requirement under section 141.
Division 5 -- Associate contracts
147. Service provider must not enter into or give effect to
associate contracts that have anti-competitive effect
A covered pipeline service provider must not--
(a) enter into an associate contract that has; or
(b) vary an associate contract so that contract, as
varied, has; or
(c) give effect to a provision of an associate contract
that has,
the purpose, or would have or be likely to have the effect,
of substantially lessening competition in a market for
natural gas services unless--
(d) that associate contract is an approved associate
contract; or
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(e) that provision is contained in an approved
associate contract.
148. Service provider must not enter into or give effect to
associate contracts inconsistent with competitive parity rule
(1) A covered pipeline service provider must not--
(a) enter into an associate contract that is; or
(b) vary an associate contract so that contract, as
varied, is; or
(c) give effect to a provision of an associate contract
that is,
inconsistent with the competitive parity rule unless--
(d) that associate contract is an approved associated
contract; or
(e) that provision is contained in an approved
associate contract.
(2) For the purposes of subsection (1), and any Rules made for
the purposes of that subsection, the competitive parity rule
is the rule that a covered pipeline service provider must
ensure that any pipeline services that the covered pipeline
service provider provides to an associate of the covered
pipeline service provider are provided to that associate as if
that associate were a separate unrelated entity.
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Chapter 5 Greenfields pipeline incentives
Part 1 Interpretation
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Chapter 5 -- Greenfields pipeline incentives
Part 1 -- Interpretation
149. Definitions
In this Chapter--
excluded infrastructure, in relation to a pipeline, means
tanks, reservoirs, machinery, equipment or other
infrastructure that forms part of the pipeline but is
classified by the Rules as excluded infrastructure for the
purposes of this Law;
greenfields pipeline project means a project for the
construction of--
(a) a pipeline that is to be structurally separate from
any existing pipeline (whether or not it is to
traverse a route different from the route of an
existing pipeline); or
(b) a major extension to an existing pipeline that is not
a covered pipeline; or
(c) a major extension to a covered pipeline by means
of which light regulation services are provided if
that extension is exempted by the AER under
section 19.
150. International pipeline to be a transmission pipeline for
purposes of Chapter
An international pipeline is, for the purposes of this
Chapter, a transmission pipeline.
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Part 2 -- 15-year no-coverage determinations
151. Application for 15-year no-coverage determination for
proposed pipeline
(1) If a greenfields pipeline project is proposed, or has
commenced, the service provider may, before the pipeline
is commissioned, apply for a determination (a 15-year
no-coverage determination) exempting the pipeline from
being a covered pipeline.
(2) If a price regulation exemption has been granted for an
international pipeline, an application for a 15-year
no-coverage determination for the pipeline may be made
by the service provider--
(a) before the pipeline is commissioned; or
(b) after the pipeline is commissioned but before the
term of the price regulation exemption comes to an
end.
(3) An application for a 15-year no-coverage determination--
(a) is to be made to the NCC; and
(b) must include a description of the pipeline that
meets the requirements specified by the Rules; and
(c) must contain the information required by the
Rules; and
(d) need not describe, or include details of, excluded
infrastructure; and
(e) must be accompanied by the fee prescribed by the
Regulations (if any).
(4) In this section--
service provider includes a person that intends to be a
service provider.
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152. Application to be dealt with in accordance with the Rules
On receiving an application under section 151, the NCC
must deal with it in accordance with the Rules.
153. No-coverage recommendation
(1) The NCC must make a recommendation recommending to
the relevant Minister that the pipeline the subject of the
application--
(a) be exempted from being a covered pipeline for a
period of 15 years; or
(b) not be exempted from being a covered pipeline for
a period of 15 years.
(2) A recommendation under this section must--
(a) be made in accordance with this Law and the
Rules; and
(b) be made within the time specified by the Rules;
and
(c) contain the information required by the Rules; and
(d) be given to the persons specified by the Rules; and
(e) be made publicly available in accordance with the
Rules.
(3) A recommendation under this section may recommend an
outcome different to the outcome sought in the application
under section 151.
Example--
An applicant may apply for a 15-year no-coverage
determination in relation to the whole pipeline. The NCC
may recommend that only a part of the pipeline the
subject of the application be subject to a 15-year
no-coverage determination.
(4) A recommendation under this section must be delivered to
the relevant Minister without delay.
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154. Principles governing the making of a no-coverage
recommendation
(1) In making a no-coverage recommendation, the NCC--
(a) must give effect to the pipeline coverage criteria;
and
(b) in deciding whether or not the pipeline coverage
criteria are satisfied must have regard to the
national gas objective.
(2) The NCC gives effect to the pipeline coverage criteria as
follows:
(a) if the NCC is satisfied that all the pipeline
coverage criteria are satisfied in relation to the
pipeline the recommendation must be against
making a 15-year no-coverage determination;
(b) if the NCC is not satisfied that all the pipeline
coverage criteria are satisfied in relation to the
pipeline the recommendation must be in favour of
making a 15-year no coverage determination.
155. Initial classification decision to be made as part of
recommendation
(1) If the pipeline the subject of an application under
section 151 is not an international pipeline, the NCC must,
as part of a no-coverage recommendation, classify the
pipeline as a transmission pipeline or a distribution pipeline
(an initial classification decision). In doing so, the NCC
must apply the pipeline classification criterion.
(2) The NCC must as part of an initial classification
decision--
(a) if it classifies the pipeline the subject of the
application as a transmission pipeline--determine
whether the transmission pipeline is also a cross
boundary transmission pipeline; or
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(b) if it classifies the pipeline the subject of the
application as a distribution pipeline--determine
whether the distribution pipeline is also a cross
boundary distribution pipeline.
(3) The NCC must also determine, as part of an initial
classification decision, the participating jurisdiction with
which the pipeline the subject of the application under
section 151 is most closely connected if the NCC
determines the pipeline is also a cross boundary
distribution pipeline. In doing so, the NCC must have
regard to the jurisdictional determination criteria.
156. Relevant Minister's determination on application
(1) On receiving a no-coverage recommendation the relevant
Minister must decide whether or not to make a 15-year
no-coverage determination in respect of the pipeline to
which the recommendation relates.
(2) The relevant Minister must use his or her best endeavours
to make the decision within 30 business days after
receiving the coverage recommendation.
(3) If the relevant Minister is unable to make the decision
within the period specified under subsection (2), he or she
must make the decision as soon as reasonably practicable
after the end of the specified period.
(4) The relevant Minister, for the purpose of making the
decision, may request submissions or comments in relation
to an application under section 151.
(5) A 15-year no-coverage determination or a decision not to
make a 15-year no-coverage determination must--
(a) be made in accordance with this Law and the
Rules; and
(b) contain the information required by the Rules; and
(c) be given to the persons specified by the Rules; and
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(d) be made publicly available in accordance with the
Rules.
(6) A 15-year no-coverage determination may have an
outcome different to the outcome--
(a) sought in the application under section 151; or
(b) of the no-coverage recommendation.
Example--
An applicant may apply for a 15-year no-coverage
determination in relation to the whole pipeline. The NCC
may recommend that only a part of the pipeline the
subject of the application be subject to a 15-year
no-coverage determination. The relevant Minister may
make a 15-year no-coverage determination that applies to
different parts of the pipeline to those recommended by
the NCC be subject to the determination.
157. Principles governing the making of a 15-year no-coverage
determination or decision not to do so
(1) In deciding whether to make a 15-year no-coverage
determination under this Part, the relevant Minister--
(a) must give effect to the pipeline coverage criteria;
and
(b) in deciding whether or not the pipeline coverage
criteria are satisfied in relation to the pipeline--
(i) must have regard to the national gas
objective; and
(ii) must have regard to the no-coverage
recommendation; and
(iii) must take into account any submissions or
comments he or she receives on a request
under section 156(4); and
(iv) may take into account any relevant
submissions and comments made to the
NCC by the public under the Rules in
relation to the application.
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(2) The relevant Minister gives effect to the pipeline coverage
criteria as follows:
(a) if the Minister is satisfied that all the pipeline
coverage criteria are satisfied in relation to the
pipeline the Minister must not make a 15-year
no-coverage determination;
(b) if the Minister is not satisfied that all the pipeline
coverage criteria are satisfied in relation to the
pipeline the Minister must make a 15-year
no-coverage determination.
158. Effect of 15-year no-coverage determination
(1) A 15-year no-coverage determination--
(a) takes effect on and from the date specified in the
determination; and
(b) continues in operation for a period of 15 years
from the commissioning of the pipeline.
(2) An application for coverage of a pipeline to which a
15-year no-coverage determination applies can be made
before the end of the period for which the determination
remains in operation only if the coverage sought in the
application is to commence from, or after, the end of that
period.
159. Consequences of Minister deciding against making 15-year
no-coverage determination for international pipeline
(1) If--
(a) the Commonwealth Minister decides against
making a 15-year no-coverage determination for
an international pipeline; and
(b) the applicant asks the Commonwealth Minister to
treat the application as an application for a price
regulation exemption,
the Commonwealth Minister may treat the application as
an application for a price regulation exemption under
Chapter 5 Part 3.
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Price regulation exemptions Part 3
s. 160
(2) If the Commonwealth Minister decides to treat an
application for a 15-year no-coverage determination as an
application for a price regulation exemption, the
Commonwealth Minister may--
(a) refer the application to the NCC for a
recommendation under Chapter 5 Part 3; or
(b) proceed to determine the application without a
recommendation under Chapter 5 Part 3.
Part 3 -- Price regulation exemptions
Division 1 -- Application for price regulation exemption
160. Application for price regulation exemption
(1) If a greenfields pipeline project for construction of an
international pipeline is proposed, or has commenced, the
service provider may, before the pipeline is commissioned,
apply for a price regulation exemption for the pipeline.
(2) An application for a price regulation exemption--
(a) is to be made to the NCC; and
(b) must include a description of the pipeline that
meets the requirements specified by the Rules; and
(c) must contain the information required by the
Rules; and
(d) need not describe, or include details of, excluded
infrastructure; and
(e) must be accompanied by the fee prescribed by the
Regulations (if any).
(3) In this section--
service provider includes a person that intends to be a
service provider.
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Part 3 Price regulation exemptions
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Division 2 -- Recommendations by NCC
161. Application to be dealt with in accordance with the Rules
On receiving an application under section 160, the NCC
must deal with it in accordance with the Rules.
162. NCC's recommendation
(1) The NCC must make a recommendation to the
Commonwealth Minister as to whether the Minister should
grant a price regulation exemption for the pipeline the
subject of the application.
(2) A recommendation under this section must--
(a) be made in accordance with this Law and the
Rules; and
(b) be made within the time specified by the Rules;
and
(c) contain the information required by the Rules; and
(d) be given to the persons specified by the Rules; and
(e) be made publicly available in accordance with the
Rules.
(3) A recommendation under this section must be delivered to
the Commonwealth Minister without delay.
163. General principle governing NCC's recommendation
(1) In making its recommendation on an application for a price
regulation exemption, the NCC must weigh the benefits to
the public of granting the exemption against the detriments
to the public.
(2) In doing so, the NCC--
(a) must have regard to the national gas objective with
particular reference to--
(i) the implications of the exemption for
relevant markets (including the effect on
market power); and
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Price regulation exemptions Part 3
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(ii) other possible effects on the public
interest; and
(b) may have regard to any other relevant matter.
Division 3 -- Making and effect of price regulation exemption
164. Making of price regulation exemption
(1) On receiving the NCC's recommendation under
section 162, the Commonwealth Minister must decide
whether to grant a price regulation exemption.
(2) The Commonwealth Minister must use his or her best
endeavours to make the decision within 10 business days
after receiving the NCC's recommendation.
(3) If the Commonwealth Minister is unable to make the
decision within the period specified under subsection (2),
he or she must make the decision as soon as reasonably
practicable after the end of the specified period.
(4) A decision under this section must--
(a) be made in accordance with this Law and the
Rules; and
(b) contain the information required by the Rules; and
(c) be given to the persons specified by the Rules; and
(d) be made publicly available in accordance with the
Rules.
165. Principles governing the making of a price regulation
exemption
(1) In deciding whether to make a decision to grant a price
regulation exemption, the Commonwealth Minister must
weigh the benefits to the public of granting the exemption
against the detriments to the public.
(2) In doing so, the Commonwealth Minister--
(a) must have regard to the national gas objective with
particular reference to--
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(i) the implications of the exemption for
relevant markets (including the effect on
market power); and
(ii) other possible effects of the exemption on
the public interest; and
(b) must have regard to the NCC's recommendation;
and
(c) may take into account any relevant submissions
and comments made to the NCC by the public
under the Rules in relation to the application; and
(d) may have regard to any other relevant matter.
166. Conditions applying to a price regulation exemption
A price regulation exemption granted under this Part is
subject to the following conditions:
(a) the service provider must publish on its website
prices for the provision of pipeline services by
means of the international pipeline; and
(b) the service provider's limited access arrangement
and the register of spare capacity are to be
accessible on the service provider's website; and
(c) the service provider--
(i) must, as and when required by the AER
or the Commonwealth Minister, provide
information requested by the AER or the
Commonwealth Minister (in a manner
and form determined or approved by the
AER or the Commonwealth Minister) on
access negotiations and the result of
access negotiations; and
(ii) must report annually to the AER and the
Commonwealth Minister (in a manner
and form approved by the AER or the
Commonwealth Minister) on access
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Price regulation exemptions Part 3
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negotiations and the result of access
negotiations.
Note--
See also sections 168 and 169(3).
167. Effect of price regulation exemption
(1) If a price regulation exemption is granted, then for a period
of 15 years from the commissioning of the pipeline, the
services provided by means of the pipeline are not subject
to price or revenue regulation under this Law or the Rules.
(2) A price regulation exemption is, however, ineffective
unless a limited access arrangement, approved by the AER,
is in force in relation to the relevant pipeline.
Note--
See also section 168.
(3) If, while a price regulation exemption remains in force, the
Commonwealth Minister makes a 15-year no-coverage
determination for the pipeline, the 15-year no-coverage
determination supersedes the price regulation exemption
(which is then terminated) and remains in force for the
balance of the period for which the exemption was granted.
(4) An application for coverage of a pipeline to which a price
regulation exemption applies can only be made before the
end of the period of exemption if the coverage sought in
the application is to commence from, or after, the end of
that period.
Division 4 -- Limited access arrangements
168. Limited access arrangements for pipeline services provided
by international pipeline to which a price regulation
exemption applies
(1) A service provider must, within 60 business days after the
grant of a price regulation exemption, submit a limited
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Part 3 Price regulation exemptions
s. 169
access arrangement to the AER for approval by the AER
under the Rules.
(2) A limited access arrangement must--
(a) be submitted in accordance with the Rules; and
(b) contain the information required by the Rules.
(3) A service provider must submit to the AER, for approval
by the AER under the Rules, revisions to an applicable
access arrangement that is a limited access arrangement
and that applies to the pipeline service to which that
arrangement applies--
(a) in accordance with the Rules; and
(b) within the period specified by the Rules.
Division 5 -- Other matters
169. Other obligations to which service provider is subject
(1) The service provider for a pipeline to which a price
regulation exemption applies is subject to the following
provisions as if the pipeline were a covered pipeline:
(a) Chapter 4 Part 1 (except sections 132 and 136);
and
(b) Chapter 4 Part 2.
(2) The service provider for a pipeline to which a price
regulation exemption applies must comply with any Rules
that--
(a) relate to the facilitation of, and request for access
to, pipeline services provided by means of that
pipeline; and
(b) apply to the service provider or a class of person
of which the service provider is a member.
(3) A service provider must ensure compliance with conditions
to which the price regulation exemption is subject.
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Extended or modified application of greenfields pipeline Part 4
incentive
s. 170
Note--
See also section 160.
170. Service provider must not price discriminate in providing
international pipeline services
(1) A service provider must not, when providing pipeline
services--
(a) by means of an international pipeline to which a
price regulation exemption applies; and
(b) to which a limited access arrangement applies,
engage in price discrimination.
(2) Subsection (1) does not apply if the service provider
engages in price discrimination that is conducive to
efficient service provision.
Part 4 -- Extended or modified application of greenfields
pipeline incentive
171. Requirement for conformity between pipeline description
and pipeline as constructed
(1) Subject to this Part--
(a) a greenfields pipeline incentive applies to the
pipeline as described in the relevant pipeline
description; and
(b) if the pipeline, as constructed, materially differs
from the pipeline as described in the relevant
pipeline description, the incentive does not attach
to the pipeline and the service provider is not
entitled to its benefit.
(2) In determining whether a pipeline, as constructed,
materially differs from the relevant pipeline description,
excluded infrastructure is not to be taken into account.
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s. 172
(3) In this section--
relevant pipeline description means a description of a
pipeline required to be included in an application under
section 151 or 160.
172. Power of relevant Minister to amend pipeline description
(1) The relevant Minister may, on application by the service
provider for a pipeline for which a greenfields pipeline
incentive has been granted, amend the relevant pipeline
description.
(2) An amendment cannot, however, be made under this
section after the pipeline has been commissioned.
(3) The relevant Minister--
(a) may refer an application for amendment to a
pipeline description to the NCC for advice; and
(b) if the amendment sought involves a substantial
change to the pipeline description as it currently
exists must refer the application to the NCC for
advice.
(4) In giving its advice to the relevant Minister, the NCC must
have regard to the criteria that were relevant to the grant of
the greenfields pipeline incentive.
(5) In deciding whether to make the amendment sought, the
relevant Minister--
(a) must have regard to the criteria that were relevant
to the grant of the greenfields pipeline incentive;
and
(b) if the application has been referred to the NCC for
advice must consider the NCC's advice.
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Early termination of greenfields pipeline incentive Part 5
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Part 5 -- Early termination of greenfields pipeline incentive
173. Greenfields pipeline incentive may lapse
(1) A greenfields pipeline incentive lapses if the pipeline for
which it was granted is not commissioned within 3 years
after the incentive was granted.
(2) The Regulations may, in a particular case, extend the
period of 3 years referred to in subsection (1).
174. Revocation by consent
The relevant Minister may, at the request of the service
provider, revoke a greenfields pipeline incentive.
175. Revocation for misrepresentation
The relevant Minister may, on application by the AER,
revoke a greenfields pipeline incentive on the ground
that--
(a) the applicant misrepresented a material fact on the
basis of which the application was granted; or
(b) the applicant failed to disclose material
information that the applicant was required to
disclose under this Chapter.
176. Revocation for breach of condition to which a price
regulation exemption is subject
The Commonwealth Minister, on application by the AER,
may revoke a price regulation exemption on the ground
that the service provider has breached a condition to which
the price regulation exemption is subject.
177. Exhaustive provision for termination of greenfields pipeline
incentive
A greenfields pipeline incentive does not terminate, and
cannot be revoked, before the end of its term except as
provided in this Part.
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Chapter 6 Access disputes
Part 1 Interpretation and application
s. 178
Chapter 6 -- Access disputes
Part 1 -- Interpretation and application
178. Definitions
In this Chapter--
access dispute means a dispute between a user or
prospective user and a service provider about 1 or more
aspects of access to a pipeline service provided by means
of a scheme pipeline;
access dispute pipeline means a scheme pipeline used or
that could be used to provide a pipeline service that is the
subject of an access dispute;
dispute hearing means a hearing conducted by the dispute
resolution body for the purpose of making an access
determination;
party, in relation to an access dispute, has the meaning
given by section 183.
179. Chapter does not limit how disputes about access may be
raised or dealt with
This Chapter is not to be taken to limit how a dispute about
access to a pipeline service may be raised or dealt with.
180. No price or revenue regulation for access disputes relating
to international pipeline services
An access dispute notified under this Chapter in relation to
a pipeline service provided by means of an international
pipeline to which a price regulation exemption applies
must not be resolved under this Chapter on terms--
(a) regulating the price at which a service is to be
provided by the service provider; or
(b) limiting the revenue to be derived by the service
provider from the provision of a service.
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Notification of access dispute Part 2
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Part 2 -- Notification of access dispute
181. Notification of access dispute
(1) Subject to this section, if a prospective user or user is
unable to agree with a service provider about 1 or more
aspects of access to a pipeline service provided or to be
provided by means of a scheme pipeline, the prospective
user, user or service provider may notify the dispute
resolution body, in writing, that an access dispute exists.
Note--
A dispute about access to a light regulation service may be
notified under this section because light regulation
services are pipeline services provided by means of a
covered pipeline (which is a scheme pipeline).
(2) A notification must be accompanied by the fee prescribed
by the Regulations (if any).
(3) On receiving a notification under subsection (1), the
dispute resolution body must notify, in writing, of the
access dispute--
(a) the service provider, if a prospective user or user
(as the case requires) notified the dispute
resolution body of the access dispute under
subsection (1);
(b) the prospective user or user (as the case requires),
if the service provider notified the dispute
resolution body of the access dispute under
subsection (1).
181A. Providing information for certain disputes
(1) If the dispute resolution body for a dispute notified under
section 181(1) is the WA arbitrator --
(a) the WA arbitrator is to inform the ERA that
notification of the dispute has been received; and
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(b) the WA arbitrator may request the ERA to give the
WA arbitrator any information in the ERA's
possession that is relevant to the dispute.
(2) The ERA is to give the WA arbitrator the information
requested, whether or not it is confidential and whether or
not it came into the ERA's possession for the purposes of
resolving the dispute.
(3) If the ERA gives the WA arbitrator information that is
confidential, the ERA is to identify the nature and extent of
the confidentiality and the WA arbitrator is to treat the
information accordingly.
182. Withdrawal of notification
(1) The person who notified the dispute resolution body of an
access dispute under section 181(1) may withdraw that
notification at any time before the dispute resolution body
makes an access determination in respect of that access
dispute.
(2) The notification must be withdrawn by notice in writing.
(3) If the notification is withdrawn, it must be taken, for the
purposes of this Chapter, never to have been given.
183. Parties to an access dispute
The parties to an access dispute are--
(a) the person notifying the dispute resolution body of
an access dispute under section 181(1); and
(b) a person notified by the dispute resolution body
under section 181(3); and
(c) if the dispute resolution body is of the opinion that
the resolution of the access dispute may involve
requiring another person to do something--that
other person; and
(d) any other person who applies in writing to be
made a party and is accepted by the dispute
resolution body as having a sufficient interest.
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Part 3 -- Access determinations
184. Determination of access dispute
(1) Unless the dispute resolution body terminates an access
dispute under section 186, the dispute resolution body must
make a determination on access by the prospective user or
user, as the case requires.
(2) In making an access determination the dispute resolution
body must comply with this Chapter and the Rules.
(3) An access determination must--
(a) be in writing; and
(b) include a statement of reasons for making the
determination; and
(c) be given to the parties without delay.
(4) An access determination has effect on and after the date
specified in the determination.
185. Dispute resolution body may require parties to mediate,
conciliate or engage in an alternative dispute resolution
process
(1) The dispute resolution body may require the parties, in
accordance with the Rules, to mediate, conciliate or engage
in another alternative dispute resolution process for the
purpose of resolving the dispute.
(2) A party must comply with a requirement under
subsection (1).
186. Dispute resolution body may terminate access dispute in
certain cases
(1) The dispute resolution body may at any time terminate an
access dispute (without making an access determination) if
the dispute resolution body considers that--
(a) the notification of the access dispute was
vexatious; or
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(b) the subject matter of the dispute is trivial,
misconceived or lacking in substance; or
(c) the party who notified the access dispute had, but
did not avail itself of, an opportunity to engage in
negotiations in good faith with the other party
before that notification; or
(d) a specified dispute termination circumstance has
occurred.
(2) Subject to section 188, the dispute resolution body may
also terminate an access dispute (without making an access
determination) if the dispute resolution body considers that
the aspect of access about which there is a dispute is
expressly or impliedly dealt with under a contract between,
as the case requires--
(a) the prospective user and service provider;
(b) the user and service provider.
(3) In this section--
specified dispute termination circumstance means a
circumstance specified by the Rules as being a
circumstance, the occurrence of which, entitles the dispute
resolution body to terminate an access dispute (without
making an access determination).
187. No access determination if dispute resolution body considers
there is genuine competition
Despite anything to the contrary in this Chapter, the dispute
resolution body may refuse to make an access
determination that requires the service provider to provide
a particular pipeline service to a prospective user or user if
the dispute resolution body considers that the pipeline
service the subject of the access dispute could be provided
on a genuinely competitive basis by a person other than the
service provider or an associate of the service provider.
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188. Restrictions on access determinations
(1) The dispute resolution body must not make an access
determination that would have any of the following effects:
(a) preventing a user obtaining a sufficient amount of
a pipeline service under a contract or previous
access determination to be able to meet the user's
reasonably anticipated requirements, measured at
the time the access dispute was notified;
(b) preventing a prospective user or user from
obtaining, by the exercise of a pre-notification
right, a sufficient amount of a pipeline service to
be able to meet the prospective user's or user's
actual requirements;
(c) depriving a person of a relevant protected
contractual right.
(2) In this section--
pre-notification right means a right under a contract, or
under an access determination, that was in force at the time
when the access dispute was notified under section 181;
relevant exclusivity right means an express contractual
right that arose on or after 30 March 1995 that--
(a) prevents a service provider supplying pipeline
services to persons who are not parties to the
contract; or
(b) limits or controls a service provider's ability to
supply pipeline services to persons who are not
parties to the contract,
but does not include a user's contractual right to obtain a
certain amount of pipeline services;
relevant protected contractual right means a right under a
contract (other than a relevant exclusivity right) that was in
force immediately before the notification of an access
dispute under section 181.
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189. Access determination must give effect to applicable access
arrangement
Subject to sections 190 and 191 and any Rules made for
the purposes of this Part, the dispute resolution body must,
in making an access determination, give effect to the
applicable access arrangement--
(a) applying to the pipeline services provided, or to be
provided, by means of the access dispute pipeline;
and
(b) in effect at the time the determination is made,
(even though that arrangement may not have been in force
when notification of the access dispute was given).
190. Access determinations and past contributions of capital to
fund installations or the construction of new facilities
(1) In making an access determination, the dispute resolution
body may (where relevant) take into account past
contributions of capital to fund installations or the
construction of new facilities.
(2) Without limiting section 74, the Rules may--
(a) specify the matters that the dispute resolution body
must address in making that access determination;
(b) specify the content of that access determination.
191. Rules may allow determination that varies applicable access
arrangement for installation of a new facility
(1) This section applies if the dispute resolution body is
proposing to make an access determination that will
require--
(a) a service provider to install or construct a new
facility to expand the capacity of the access
dispute pipeline; and
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(b) the prospective user or user who is a party to the
access dispute to contribute some or all of the
capital to fund the installation or construction of
the new facility.
(2) Without limiting section 74, the Rules may--
(a) confer a function or power on the dispute
resolution body to, when making the access
determination, vary the applicable access
arrangement; and
(b) specify the matters that the dispute resolution body
must address in making that access determination;
and
(c) specify the kinds of variations that may be made to
the applicable access arrangement; and
(d) specify the content of that access determination.
192. Access determinations need not require the provision of a
pipeline service
An access determination may, but need not, require a
service provider to provide a pipeline service to a
prospective user.
193. Content of access determinations
Subject to this Chapter, an access determination may deal
with any matter relating to the provision of a pipeline
service to a prospective user or user.
Example--
An access determination may require the service provider
to provide a pipeline service to the prospective user or
user at--
(a) a specified tariff, rate or charge; and
(b) on specified terms and conditions.
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Part 4 -- Variation of access determinations
194. Variation of access determination
(1) The dispute resolution body may vary an access
determination on the application of any party to the
determination. However, it cannot vary the final
determination if any other party objects.
Note--
If the parties cannot agree on a variation, a new access
dispute can be notified under section 181.
(2) Section 188 applies to a variation under this section as if--
(a) an access dispute arising out of the access
determination had been notified when the
application was made to the dispute resolution
body for the variation of the determination; and
(b) the variation were the making of an access
determination in the terms of the varied
determination.
Part 5 -- Compliance with access determinations
195. Compliance with access determination
A party to an access dispute in respect of which an access
determination is made must comply with the access
determination.
Part 6 -- Access dispute hearing procedure
196. Hearing to be in private
(1) Subject to subsection (2), a dispute hearing is to be in
private.
(2) If the parties agree, a dispute hearing or part of a dispute
hearing may be conducted in public.
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(3) The dispute resolution body may give written directions as
to the persons who may be present at a dispute hearing that
is conducted in private.
(4) In giving directions under subsection (3), the dispute
resolution body must have regard to the wishes of the
parties and the need for commercial confidentiality.
197. Right to representation
In a dispute hearing a party may appear in person or be
represented by another person.
198. Procedure of dispute resolution body
(1) In a dispute hearing the dispute resolution body--
(a) is not bound by technicalities, legal forms or rules
of evidence; and
(b) must act as speedily as a proper consideration of
the access dispute allows, having regard to the
need to carefully and quickly inquire into and
investigate the access dispute and all matters
affecting the merits, and fair settlement, of the
access dispute; and
(c) may inform itself about any matter relevant to the
access dispute in any way it thinks appropriate.
(2) The dispute resolution body may determine the periods that
are reasonably necessary for the fair and adequate
presentation of the respective cases of the parties in the
dispute hearing, and may require that the cases be
presented within those periods.
(3) The dispute resolution body may require evidence or
argument to be presented in writing, and may decide the
matters on which the dispute resolution body will hear oral
evidence or argument.
(4) The dispute resolution body may determine that a dispute
hearing is to be conducted by--
(a) telephone; or
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(b) closed circuit television; or
(c) any other means of communication.
(5) The Rules may make further provision about the procedure
for the conduct of dispute hearings.
199. Particular powers of dispute resolution body in a hearing
(1) The dispute resolution body may do any of the following
things for the purpose of determining an access dispute:
(a) give a direction in the course of, or for the purpose
of, a dispute hearing;
(b) hear and determine the access dispute in the
absence of a party who has been given notice of
the dispute hearing;
(c) sit at any place;
(d) adjourn to any time and place;
(e) refer any matter to an independent expert and
accept the expert's report as evidence.
(2) The dispute resolution body may make an interim
determination.
200. Disclosure of information
(1) The dispute resolution body may give an oral or written
order to a person not to divulge or communicate to anyone
else specified information that was given to the person in
the course of an access dispute unless the person has the
dispute resolution body's permission.
(2) A person must not, without reasonable excuse, refuse or
fail to comply with an order under subsection (1).
Maximum penalty:
(a) in the case of a natural person--$2 000;
(b) in the case of a body corporate--$10 000.
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201. Power to take evidence on oath or affirmation
(1) The dispute resolution body may take evidence on oath or
affirmation and for that purpose the dispute resolution body
may administer an oath or affirmation.
(2) The dispute resolution body may summon a person to
appear before the dispute resolution body to--
(a) give evidence; or
(b) produce such documents (if any) as are referred to
in the summons; or
(c) give evidence and produce such documents (if
any) as are referred to in the summons.
(3) The powers in this section may be exercised only for the
purposes of hearing and determining an access dispute.
202. Failing to attend as a witness
A person who is served, as prescribed by the Regulations,
with a summons to appear as a witness before the dispute
resolution body must not, without reasonable excuse--
(a) fail to attend as required by the summons; or
(b) fail to appear and report himself or herself from
day to day unless excused, or released from further
attendance, by the dispute resolution body.
Maximum penalty: $2 000.
203. Failing to answer questions etc
(1) A person appearing as a witness before the dispute
resolution body must not, without reasonable excuse--
(a) refuse or fail to be sworn or to make an
affirmation; or
(b) refuse or fail to answer a question that the person
is required to answer by the dispute resolution
body; or
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(c)refuse or fail to produce a document that he or she
is required to produce by a summons under this
Chapter served on him or her as prescribed by the
Regulations.
Maximum penalty: $2 000.
(2) It is a reasonable excuse for the purposes of subsection (1)
for a natural person to refuse or fail to answer a question or
produce a document on the ground that the answer or the
production of the document might--
(a) tend to incriminate the person; or
(b) expose the person to a criminal penalty.
(3) Subsection (2) does not limit what is a reasonable excuse
for the purposes of subsection (1).
204. Intimidation etc
A person must not--
(a) threaten, intimidate or coerce another person; or
(b) cause or procure damage, loss or disadvantage to
another person,
because that other person--
(c) proposes to produce, or has produced, documents
to the dispute resolution body; or
(d)proposes to appear, or has appeared, as a witness
before the dispute resolution body.
Maximum penalty: $2 000.
205. Party may request dispute resolution body to treat material
as confidential
(1) A party in a dispute hearing may--
(a) inform the dispute resolution body that, in the
party's opinion, a specified part of a document
contains confidential information; and
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(b) request the dispute resolution body not to give a
copy of that part to another party.
(2) On receiving a request, the dispute resolution body must--
(a) inform the other party or parties that the request
has been made and of the general nature of the
matters to which the relevant part of the document
relates; and
(b) ask the other party or parties whether there is any
objection to the dispute resolution body complying
with the request.
(3) If there is an objection to the dispute resolution body
complying with the request, the party objecting may inform
the dispute resolution body of the objection and of the
reasons for it.
(4) After considering--
(a) a request; and
(b) any objection; and
(c) any further submissions that any party has made in
relation to the request,
the dispute resolution body may decide--
(d) not to give the other party or parties a copy of so
much of the document as contains confidential
information that the dispute resolution body thinks
should not be given; or
(e) to give the other party or another specified party a
copy of the whole, or part, of the part of the
document that contains confidential information
subject to a condition that the party give an
undertaking not to disclose the information to
another person except to the extent specified by
the dispute resolution body and subject to such
other conditions as the dispute resolution body
determines.
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206. Costs
(1) Each party is to bear its own costs in a dispute hearing
except to the extent that an order under this section
specifies otherwise.
(2) At any time, the dispute resolution body may order that a
party pay all or a specified part of the costs of another party
in a dispute hearing.
(3) The dispute resolution body may make an order under
subsection (2) only if satisfied that it is fair to do so, having
regard to--
(a) whether a party has conducted the dispute hearing
in a way that unnecessarily disadvantaged another
party by conduct such as--
(i) failing to comply with an order or
direction of the dispute resolution body
without reasonable excuse;
(ii) failing to comply with this Law, the
Regulations or the Rules;
(iii) asking for an adjournment as a result of
subparagraph (i) or (ii);
(iv) causing an adjournment;
(v) attempting to deceive another party or the
dispute resolution body;
(vi) vexatiously conducting an access dispute;
(b) whether a party has been responsible for
prolonging unreasonably the time taken to
complete the dispute hearing;
(c) the relative strengths of the claims made by each
of the parties, including whether a party has made
a claim that has no tenable basis in fact or law;
(d) the nature and complexity of the access dispute;
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(e) any other matter the dispute resolution body
considers relevant.
(4) A party to whom an order made under subsection (2) is
directed must comply with the order.
(5) If the dispute resolution body considers that the
representative of a party, rather than the party, is
responsible for conduct described in subsection (3)(a) or
(b), the dispute resolution body may order that the
representative in his or her own capacity compensate
another party for any costs incurred unnecessarily.
(6) Before making an order under subsection (5), the dispute
resolution body must give the representative a reasonable
opportunity to be heard.
(7) A representative of a party to whom an order made under
subsection (5) is directed must comply with the order.
(8) If the dispute resolution body makes an order for costs
before the end of an access dispute, the dispute resolution
body may require that the order be complied with before it
continues with the proceeding.
(9) If the dispute resolution body makes an order for costs, the
dispute resolution body may fix the amount of costs itself.
(10) This section applies to costs incurred by the parties in a
dispute hearing even if the notification of the access
dispute to which the dispute hearing relates is withdrawn.
207. Outstanding costs are a debt due to party awarded the costs
Costs that are payable under section 206(4) or (7)--
(a) are a debt due to the party to whom the dispute
resolution body has ordered that they be paid; and
(b) may be recovered by that party in a court of
competent jurisdiction.
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Part 7 Joint access dispute hearings
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Part 7 -- Joint access dispute hearings
208. Definition
In this Part--
nominated disputes has the meaning given by
section 209(2).
209. Joint dispute hearing
(1) This section applies if--
(a) the dispute resolution body is conducting 2 or
more dispute hearings at a particular time; and
(b) 1 or more matters are common to the access
disputes in relation to which the dispute hearings
are being conducted.
(2) The dispute resolution body may, by notice in writing,
decide that it will hold a joint dispute hearing in respect of
such of those access disputes (the nominated disputes) as
are specified in the notice.
(3) The dispute resolution body may do so only if it considers
this would be likely to result in the nominated disputes
being resolved in a more efficient and timely manner.
210. Consulting the parties
(1) Before making a decision under section 209(2), the dispute
resolution body must give each party to each of the
nominated disputes a notice in writing--
(a) specifying what the dispute resolution body is
proposing to do; and
(b) inviting the party to make a written submission on
the proposal to the dispute resolution body within
10 business days after the notice is given.
(2) The dispute resolution body must have regard to any
submission so made in deciding whether to do so. The
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Miscellaneous matters Part 8
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dispute resolution body may have regard to any other
matter it considers relevant.
211. Constitution and procedure of dispute resolution body for
joint dispute hearings
Chapter 6 Part 6 applies to the joint dispute hearing in a
corresponding way to the way in which it applies to a
particular dispute hearing.
212. Record of proceedings etc
(1) The dispute resolution body as constituted for the purposes
of the joint dispute hearing may have regard to any record
of the proceedings of the dispute of any of the nominated
disputes.
(2) The dispute resolution body as constituted for the purposes
of the dispute hearing of each of the nominated disputes
may, for the purposes of making an access determination in
relation to the access dispute to which that hearing
relates--
(a) have regard to any record of the proceedings of the
joint dispute hearing; and
(b) adopt any findings of fact made by the dispute
resolution body as constituted for the purposes of
the joint dispute hearing.
Part 8 -- Miscellaneous matters
213. Correction of access determinations for clerical mistakes etc
If an access determination contains--
(a) a clerical mistake; or
(b) an error arising from an accidental slip or
omission; or
(c) a material miscalculation of figures or a material
mistake in the description of any person, thing or
matter referred to in the determination; or
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Part 8 Miscellaneous matters
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(d) a defect in form,
the dispute resolution body may correct the access
determination.
214. Reservation of capacity during an access dispute
A service provider who is in an access dispute with a user
must not, without the consent of the user, alter the rights
that the user has to use the capacity of the access dispute
pipeline during the period of the dispute.
215. Subsequent service providers bound by access
determinations
(1) An access determination applies to every subsequent
service provider as if that subsequent service provider were
a party to the access dispute in respect of which the access
determination was made.
(2) In this section--
subsequent service provider means a service provider
(other than the service provider to whom the access
determination applies) who provides pipeline services--
(a) the subject of the access dispute; and
(b) in respect of which the access determination was
made.
216. Regulations about the costs to be paid by parties to access
dispute
The Regulations may provide for the dispute resolution
body to--
(a) charge the parties to an access dispute for its costs
in the access dispute; and
(b) apportion those costs between the parties.
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The Bulletin Board Operator Part 1
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Chapter 7 -- The Natural Gas Services Bulletin Board
Part 1 -- The Bulletin Board Operator
217. The Bulletin Board operator
The Bulletin Board operator is the person prescribed by the
Regulations as the Bulletin Board operator.
218. Obligation to establish and maintain the Natural Gas
Services Bulletin Board
(1) The Bulletin Board operator first prescribed under
section 217 must establish a website, to be known as the
Natural Gas Services Bulletin Board, containing
information of the kind specified in the Rules in relation to
natural gas services.
(2) The Bulletin Board operator must maintain the Natural Gas
Services Bulletin Board.
(3) The Bulletin Board operator may replace the website with
another website containing information of the kind
specified in the Rules in relation to natural gas services.
219. Other functions of the Bulletin Board operator
The Bulletin Board operator also has the following
functions:
(a) to collect and collate Bulletin Board information;
(b) to collect and collate other information in relation
to natural gas services for inclusion on the Natural
Gas Services Bulletin Board;
(c) to derive from information of the type mentioned
in paragraphs (a) and (b) information for inclusion
on the Natural Gas Services Bulletin Board;
(d) to publish information on the Natural Gas Services
Bulletin Board of the kinds that may or must be
included on the Natural Gas Services Bulletin
Board under the Rules;
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(e) to manage information of the type mentioned in
paragraphs (a), (b) and (c);
(f) such other functions as are conferred on the
Bulletin Board operator by this Law, the Rules or
any other law prescribed by the Regulations for
the purposes of this paragraph.
220. Powers of the Bulletin Board operator
The Bulletin Board operator has the power to do all things
necessary or convenient to be done for or in connection
with the performance of its functions.
221. Immunity of the Bulletin Board operator
(1) The Bulletin Board operator or an officer or employee of
the Bulletin Board operator does not incur any civil
monetary liability for an act or omission in the
performance or exercise, or purported performance or
exercise, of a function or power of the Bulletin Board
operator under this Law or the Rules unless the act or
omission is done or made in bad faith or through
negligence.
(2) The civil monetary liability for an act or omission of a kind
referred to in subsection (1) done or made through
negligence may not exceed the prescribed maximum
amount.
(3) The Regulations may, for the purposes of subsection (2),
without limitation do all or any of the following:
(a) prescribe a maximum amount that is limited in its
application to persons, events, circumstances,
losses or periods specified in the Regulations;
(b) prescribe maximum amounts that vary in their
application according to the persons to whom or
the events, circumstances, losses or periods to
which they are expressed to apply;
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(c) prescribe the manner in which a maximum amount
is to be divided amongst claimants.
(4) The Bulletin Board operator may enter into an agreement
with a person varying or excluding the operation of a
provision of this section and, to the extent of that
agreement, that provision does not apply.
(5) This section does not apply to any liability of an officer or
employee of a body corporate to the body corporate.
(6) In this section--
civil monetary liability means liability to pay damages or
compensation or any other amount ordered in a civil
proceeding, but does not include liability to pay a civil
penalty under this Law, an infringement penalty under
Chapter 8 Part 7 or the costs of a proceeding.
222. Fees for services provided
(1) The Bulletin Board operator may charge a fee specified, or
a fee calculated in accordance with a formula or
methodology specified, in the Rules for access by a person
to--
(a) the Natural Gas Services Bulletin Board; or
(b) Bulletin Board information.
(2) The fee must not be such as to amount to taxation.
Part 2 -- Bulletin Board information
223. Obligation to give information to the Bulletin Board
operator
(1) A person of the following kind who has possession or
control of information in relation to natural gas services
must give the Bulletin Board operator the information if
the person is required to do so under the Rules:
(a) a service provider;
(b) a gas market operator;
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(c) a user;
(d) a non scheme pipeline user;
(e) a producer;
(f) a storage provider;
(g) another person who is prescribed by the
Regulations for the purposes of this paragraph.
(2) The information must be given to the Bulletin Board
operator in accordance with the Rules.
(3) Subsection (1) does not apply if the person is exempt under
the Rules from giving the information.
224. Person cannot rely on duty of confidence to avoid
compliance with obligation
A person must not refuse to comply with the requirement
in section 223(1) on the ground of any duty of confidence.
225. Giving to Bulletin Board operator false and misleading
information
A person must not give Bulletin Board information to the
Bulletin Board operator that the person knows is false or
misleading in a material particular.
226. Immunity of persons giving information to the Bulletin
Board operator
(1) A person who gives Bulletin Board information to the
Bulletin Board operator does not incur any civil monetary
liability for an act or omission in giving that information
unless the act or omission is done or made in bad faith or
through negligence.
(2) The civil monetary liability for an act or omission of a kind
referred to in subsection (1) done or made through
negligence may not exceed the prescribed maximum
amount.
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(3) The Regulations may, for the purposes of subsection (2),
without limitation do all or any of the following:
(a) prescribe a maximum amount that is limited in its
application to persons, events, circumstances,
losses or periods specified in the Regulations;
(b) prescribe maximum amounts that vary in their
application according to the persons to whom or
the events, circumstances, losses or periods to
which they are expressed to apply;
(c) prescribe the manner in which a maximum amount
is to be divided amongst claimants.
(4) A person mentioned in subsection (1) may enter into an
agreement with another person varying or excluding the
operation of a provision of this section and, to the extent of
that agreement, that provision does not apply.
(5) In this section--
civil monetary liability means liability to pay damages or
compensation or any other amount ordered in a civil
proceeding, but does not include liability to pay a civil
penalty under this Law, an infringement penalty under
Chapter 8 Part 7 or the costs of a proceeding.
Part 3 -- Protection of information
227. Protection of information by the Bulletin Board operator
(1) The Bulletin Board operator must not copy, record, use or
disclose information that is Bulletin Board information,
except for the purposes of exercising powers or performing
functions as the Bulletin Board operator.
(2) If a person ceases to be the Bulletin Board operator, the
person must not afterwards copy, record, use or disclose
information that is Bulletin Board information and that was
disclosed to the person as the Bulletin Board operator.
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(3) Subsection (1) does not apply if--
(a) the Bulletin Board operator has the written consent
for the copying, recording, use or disclosure
from--
(i) the person who gave the information; or
(ii) the person from whom the person referred
to in subparagraph (i) received that
information; or
(b) the information is publicly available; or
(c) the information is required to be used or disclosed
because of the operation of a law of this
jurisdiction or another participating jurisdiction; or
(d) the information is also disclosed to the Bulletin
Board operator--
(i) for reasons other than compliance with
section 223(1); and
(ii) in circumstances other than those
expressly permitted by the Rules.
228. Protection of information by employees etc of the Bulletin
Board operator
(1) A person who is--
(a) an officer of the Bulletin Board operator; or
(b) an employee of the Bulletin Board operator; or
(c) a person performing work for or rendering
services to the Bulletin Board operator otherwise
than as an officer or employee,
must not copy, record, use or disclose information that is
Bulletin Board information, except in that person's
capacity as a person who is exercising powers or
performing functions, or assisting in the exercise of powers
or performance of functions, for the Bulletin Board
operator as the Bulletin Board operator.
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(2) If--
(a) information is Bulletin Board information; and
(b) the information is disclosed to a person in the
person's capacity as--
(i) an officer of the Bulletin Board operator;
or
(ii) an employee of the Bulletin Board
operator; or
(iii) a person performing work for or rendering
services to the Bulletin Board operator
otherwise than as an officer or employee,
exercising powers or performing functions, or
assisting in the exercise of powers or performance
of functions, for the Bulletin Board operator; and
(c) 1 of the following applies:
(i) in the case of an officer of the Bulletin
Board operator--the person ceases to be
an officer acting in that capacity;
(ii) in the case of an employee of the Bulletin
Board operator--the person ceases to be
an employee acting in that capacity;
(iii) in the case of a person performing work
for or rendering services to the Bulletin
Board operator otherwise than as an
officer or employee--the person ceases to
be a person of that kind acting in that
capacity,
the person must not afterwards copy, record, use
or disclose the information.
(3) Subsections (1) and (2) do not apply if--
(a) the person has the written consent for the copying,
recording, use or disclosure from--
(i) the person who gave the information; or
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(ii) the person from whom the person referred
to in subparagraph (i) received that
information; or
(b) the information is publicly available; or
(c) the information is required to be used or disclosed
because of the operation of a law of this
jurisdiction or another participating jurisdiction; or
(d) the information is also disclosed to the person--
(i) for reasons other than compliance with
section 223(1); and
(ii) in circumstances other than those
expressly permitted by the Rules.
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Proceedings under the National Gas Law Chapter 8
Proceedings generally Part 1
s. 229
Chapter 8 -- Proceedings under the National Gas Law
Part 1 -- Proceedings generally
229. Instituting civil proceedings under this Law
(1) Proceedings may not be instituted in a court in respect of a
breach of a provision of this Law, the Regulations or Rules
that is not an offence provision by any person except as
provided for in this Chapter.
(2) The AER may, in accordance with Chapter 8 Part 2,
institute civil proceedings in respect of a breach of--
(a) a provision of this Law that is not an offence
provision (including a provision that is a civil
penalty provision or conduct provision); or
(b) a provision of the Regulations that is not an
offence provision (including a provision that is a
civil penalty provision or conduct provision); or
(c) a provision of the Rules (including a provision that
is a civil penalty provision or a conduct provision).
(3) A person other than the AER may, in accordance with
Chapter 8 Part 2, institute civil proceedings in respect of a
breach of a conduct provision.
230. Time limit within which proceedings may be instituted
(1) The AER may only institute a proceeding for a breach, by a
person, of a provision of this Law, the Regulations or the
Rules that is not an offence provision within 6 years after
the date on which the breach occurred.
(2) A person, other than the AER, may only institute a
proceeding for a breach of a conduct provision by another
person within 6 years after the date on which the breach
occurred.
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Part 2 Proceedings for breaches of this Law, Regulations or the
Rules
s. 231
Part 2 -- Proceedings for breaches of this Law, Regulations or
the Rules
231. AER proceedings for breaches of this Law, Regulations or
the Rules that are not offences
(1) The Court may make an order, on application by the AER
on behalf of the Commonwealth, declaring that a person is
in breach of a provision of this Law, the Regulations or the
Rules that is not an offence provision.
Note--
A Supreme Court of a participating jurisdiction that is a
State may hear an application by the AER under
subsection (1) by operation of section 39(2) of the
Judiciary Act 1903 of the Commonwealth.
(1A) When subsection (1) is read as if a reference in it to the
AER were a reference to the ERA, the subsection is to be
read as if "on behalf of the Commonwealth" had been
deleted.
(2) If the order declares a person to be in breach of a provision
of this Law the Regulations or the Rules that is not an
offence provision, the order may include 1 or more of the
following:
(a) an order that the person pay a civil penalty
determined in accordance with this Law, the
Regulations and the Rules if the breach is a breach
of a civil penalty provision;
(b) an order that the person cease, within a specified
period, the act, activity or practice constituting the
breach;
(c) an order that the person take such action, or adopt
such practice, as the Court requires for remedying
the breach or preventing a recurrence of the
breach;
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Rules
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(d) an order that the person implement a specified
program for compliance with this Law, the
Regulations and the Rules;
(e) an order of a kind prescribed by the Regulations.
(3) If a person has engaged, is engaging or is proposing to
engage in any conduct in breach of a provision of this Law,
the Regulations or the Rules that is not an offence
provision, the Court may, on application by the AER on
behalf of the Commonwealth, grant an injunction--
(a) restraining the person from engaging in the
conduct; and
(b) if, in the Court's opinion, it is desirable to do so--
requiring the person to do something.
(3A) When subsection (3) is read as if a reference in it to the
AER were a reference to the ERA, the subsection is to be
read as if "on behalf of the Commonwealth" had been
deleted.
(4) The power of the Court under subsection (3) to grant an
injunction restraining a person from engaging in conduct of
a particular kind may be exercised--
(a) if the Court is satisfied that the person has engaged
in conduct of that kind--whether or not it appears
to the Court that the person intends to engage
again, or to continue to engage, in conduct of that
kind; or
(b) if it appears to the Court that, if an injunction is
not granted, it is likely that the person will engage
in conduct of that kind--whether or not the person
has previously engaged in conduct of that kind and
whether or not there is an imminent danger of
substantial damage to any person if the person
engages in conduct of that kind.
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Part 2 Proceedings for breaches of this Law, Regulations or the
Rules
s. 232
232. Proceedings for declaration that a person is in breach of a
conduct provision
(1) The Court may make an order, on application by a person
other than the AER, declaring that another person is in
breach of a conduct provision.
(2) If the order declares a person to be in breach of a conduct
provision, the order may include 1 or more of the
following:
(a) an order that the person in breach cease, within a
specified period, the act, activity or practice
constituting the breach;
(b) an order that the person in breach take such action,
or adopt such practice, as the Court requires for
remedying the breach or preventing a recurrence
of the breach;
(c) an order that the person in breach implement a
specified program for compliance with this Law,
the Regulations and the Rules;
(d) an order of a kind prescribed by the Regulations.
(3) If a person has engaged, is engaging or is proposing to
engage in any conduct in breach of a conduct provision, the
Court may, on application by another person (other than
the AER), grant an injunction--
(a) restraining the first mentioned person from
engaging in the conduct; and
(b) if, in the Court's opinion, it is desirable to do so--
requiring the first mentioned person to do
something.
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Matters relating to breaches of this Law, the Regulations or the Part 3
Rules
s. 233
(4) The power of the Court under subsection (3) to grant an
injunction restraining a person from engaging in conduct of
a particular kind may be exercised--
(a) if the Court is satisfied that the person has engaged
in conduct of that kind--whether or not it appears
to the Court that the person intends to engage
again, or to continue to engage, in conduct of that
kind; or
(b) if it appears to the Court that, if an injunction is
not granted, it is likely that the person will engage
in conduct of that kind--whether or not the person
has previously engaged in conduct of that kind and
whether or not there is an imminent danger of
substantial damage to any person if the person in
conduct of that kind.
233. Actions for damages by persons for breach of conduct
provision
A person other than the AER who suffers loss or damage
by conduct of another person that was done in breach of a
conduct provision may recover the amount of the loss or
damage by action against that other person in a court of
competent jurisdiction.
Part 3 -- Matters relating to breaches of this Law, the
Regulations or the Rules
234. Matters for which there must be regard in determining
amount of civil penalty
Every civil penalty ordered to be paid by a person declared
to be in breach of a provision of this Law, the Regulations
or the Rules must be determined having regard to all
relevant matters, including--
(a) the nature and extent of the breach; and
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(b) the nature and extent of any loss or damage
suffered as a result of the breach; and
(c) the circumstances in which the breach took place;
and
(d) whether the person has engaged in any similar
conduct and been found to be in breach of a
provision of this Law, the Regulations or the Rules
in respect of that conduct; and
(e) whether the service provider had in place a
compliance program approved by the AER or
required under the Rules, and if so, whether the
service provider has been complying with that
program.
235. Breach of a civil penalty provision is not an offence
A breach of a civil penalty provision is not an offence.
236. Breaches of civil penalty provisions involving continuing
failure
For the purpose of determining the civil penalty for a
breach of a civil penalty provision, if the breach consists of
a failure to do something that is required to be done, the
breach is to be regarded as continuing until the act is done
despite the fact that any period within which, or time
before which, the act is required to be done has expired or
passed.
237. Conduct in breach of more than 1 civil penalty provision
(1) If the conduct of a person constitutes a breach of 2 or more
civil penalty provisions, proceedings may be instituted
under this Law against the person in relation to the breach
of any 1 or more of those provisions.
(2) However, the person is not liable to more than 1 civil
penalty under this Law in respect of the same conduct.
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Matters relating to breaches of this Law, the Regulations or the Part 3
Rules
s. 238
Note--
Clause 49 of Schedule 2 to this Law sets out further provisions in
relation to double jeopardy.
238. Persons involved in breach of civil penalty provision or
conduct provision
(1) A person must not--
(a) aid, abet, counsel or procure a breach of a civil
penalty provision or conduct provision by another
person; or
(b) be in any way directly or indirectly knowingly
concerned in, or party to, a breach of a civil
penalty provision or conduct provision by another
person.
(2) This Law applies to a person who breaches subsection (1)
in relation to a civil penalty provision or conduct provision
as if the person were a person who has breached the civil
penalty provision or conduct provision.
239. Attempt to breach a civil penalty provision
A person who attempts to commit a breach of a civil
penalty provision commits a breach of that provision.
240. Civil penalties payable to the Commonwealth
If a person is ordered to pay a civil penalty, the penalty is
payable to the State of Western Australia except if the
order is made on an application by the AER on behalf of
the Commonwealth, in which case it is payable to the
Commonwealth.
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Chapter 8 Proceedings under the National Gas Law
Part 4 Judicial review of decisions under this Law, the Regulations
and the Rules
s. 241
Part 4 -- Judicial review of decisions under this Law, the
Regulations and the Rules
241. Definition
In this Part--
person aggrieved includes a person whose interests are
adversely affected.
242. Applications for judicial review of decisions of the AEMC
(1) A person aggrieved by--
(a) a decision or determination of the AEMC under
this Law, the Regulations or the Rules; or
(b) a failure by the AEMC to make a decision or
determination under this Law, the Regulations or
the Rules; or
(c) conduct engaged in, or proposed to be engaged in,
by the AEMC for the purpose of making a
decision or determination under this Law, the
Regulations or the Rules,
may apply to the Court for judicial review of the decision
or determination, failure or conduct or proposed conduct.
Note--
The Commonwealth Minister, NCC and AER are subject
to judicial review under the Administrative Decisions
(Judicial Review) Act 1977 of the Commonwealth.
(2) Unless the Court otherwise orders, the making of an
application to the Court under subsection (1) does not
affect the operation of the decision or determination
referred to in that subsection or prevent the taking of action
to implement the decision or determination.
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243. Applications for judicial review of decisions of the Bulletin
Board operator
(1) A person aggrieved by--
(a) a decision or determination of the Bulletin Board
operator under this Law or the Rules; or
(b) a failure by the Bulletin Board operator to make a
decision or determination under this Law or the
Rules; or
(c) conduct engaged in, or proposed to be engaged in,
by the Bulletin Board operator for the purpose of
making a decision or determination under this Law
or the Rules,
may apply to the Court for judicial review of the decision
or determination, failure or conduct or proposed conduct.
(2) Unless the Court otherwise orders, the making of an
application to the Court under subsection (1) does not
affect the operation of the decision or determination
referred to in that subsection or prevent the taking of action
to implement the decision or determination.
Part 5 -- Merits review and other non-judicial review
Division 1 -- Interpretation
244. Definitions
In this Part--
AER information disclosure decision means a decision of
the AER under section 329 to disclose information, or the
contents of a document;
affected or interested person or body means--
(a) a service provider to whom a reviewable
regulatory decision applies;
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(b) a user, prospective user or end user whose
commercial interests are materially affected by a
reviewable regulatory decision;
(c) a user or consumer association;
(d) a person whose interests are affected by a
reviewable regulatory decision that is--
(i) a coverage determination; or
(ii) a 15-year no-coverage determination; or
(iii) a coverage revocation determination;
applicant means--
(a) an affected or interested person or body who has
been granted leave to apply for review by the
Tribunal under Division 2; or
(b) a person who makes an application under
section 263;
average annual regulated revenue means the annual
average of regulated revenue calculated for the regulatory
period of an applicable access arrangement;
coverage related light regulation decision means either of
the following reviewable regulatory decisions:
(a) a decision of the NCC under section 110(1);
(b) a decision of the NCC under section 119(3);
end user includes a person who acquires, or proposes to
acquire, natural gas for the purpose of on-selling that gas to
a person who intends to consume that gas;
intervener means a person or body referred to in
section 253, 254 or 255 who has intervened in a review
under Division 2 with the leave of the Tribunal or
otherwise;
NCC recommendation means--
(a) a coverage recommendation; or
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(b) a coverage revocation recommendation; or
(c) a no-coverage recommendation; or
(d) a price regulation exemption recommendation;
original decision maker means a relevant Minister, the
Commonwealth Minister, the AER or the NCC;
regulated revenue means the total revenue earned or to be
earned by a covered pipeline service provider--
(a) under; and
(b) during the regulatory period of,
an applicable access arrangement through the provision of
reference services to which that arrangement applies;
regulatory period means the period specified in an
applicable access arrangement to be the regulatory period;
review under this Part means a review under Division 2 or
Division 3;
reviewable regulatory decision means--
(a) a Ministerial coverage decision; or
(b) a light regulation determination or a decision of
the NCC under Chapter 3 Part 2 not to make a
light regulation determination; or
(c) decision of the NCC under Chapter 3 Part 2 to
revoke or not revoke a light regulation
determination; or
(d) an applicable access arrangement decision (other
than a full access arrangement decision that does
not approve a full access arrangement); or
(e) an AER ring fencing determination; or
(f) a decision of the AER under section 146 to give an
exemption; or
(g) an associate contract decision; or
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(h) a decision of an original decision maker that is
prescribed by the Regulations to be a reviewable
regulatory decision,
but does not include a decision of the AER made under
Chapter 10 Part 2;
small/medium user or consumer intervener means a user
or consumer intervener that--
(a) the members of which are only small to medium
users or end users; or
(b) if it does not have any such members, has, as an
object or purpose, the object or purpose of
representing and promoting the interests of small
to medium users or end users;
small to medium user or end user means a user or end user
whose annual consumption of natural gas does not exceed
a level (expressed in terajoules) fixed by Regulation for the
purposes of this definition;
user or consumer association means an association or
body (whether incorporated or unincorporated)--
(a) the members of which include more than 1 user,
prospective user or end user; and
(b) that represents and promotes the interests of those
members in relation to the provision of natural gas
services;
user or consumer interest group means an association or
body (whether incorporated or unincorporated)--
(a) that has, as an object or purpose, the object or
purpose of representing and promoting the
interests of users or prospective users or end users
of natural gas services; but
(b) the members of which need not include a user,
prospective user or end user;
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user or consumer intervener means--
(a) a user or consumer association; or
(b) a user or consumer interest group,
that has made a submission or comment in relation to the
making of a reviewable regulatory decision following an
invitation to do so under this Law or the Rules.
Division 2 -- Merits review for reviewable regulatory decisions
245. Applications for review
(1) Subject to this section, an affected or interested person or
body, with the leave of the Tribunal, may apply to the
Tribunal for a review of a reviewable regulatory decision.
(2) An application must--
(a) be made in the form and manner determined by
the Tribunal; and
(b) specify the grounds for review being relied on.
246. Grounds for review
(1) An application under section 245(1) may be made only on
1 or more of the following grounds:
(a) the original decision maker made an error of fact
in the decision maker's findings of facts, and that
error of fact was material to the making of the
decision;
(b) the original decision maker made more than 1
error of fact in the decision maker's findings of
facts, and those errors of fact, in combination,
were material to the making of the decision;
(c) the exercise of the original decision maker's
discretion was incorrect, having regard to all the
circumstances;
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(d) the original decision maker's decision was
unreasonable, having regard to all the
circumstances.
(2) It is for the applicant to establish a ground listed in
subsection (1).
247. By when an application must be made
(1) An application under section 245(1) in respect of a
reviewable regulatory decision (other than a coverage
related light regulation decision) must be made no later
than 15 business days after the reviewable regulatory
decision is published in accordance with this Law or the
Rules.
(2) An application under section 245(1) in respect of a
coverage related light regulation decision must be made--
(a) in the case of a decision of the NCC under
section 110(1), no later than 15 business days after
the making of the coverage determination relating
to the coverage recommendation to which the
decision under section 110(1) is attached;
(b) in the case of a decision of the NCC under
section 119(3), no later than 15 business days after
the making of the coverage revocation
determination relating to the coverage revocation
recommendation to which the decision under
section 119(3) is attached.
248. Tribunal must not grant leave unless serious issue to be
heard and determined
Subject to this Division, the Tribunal must not grant leave
to apply under section 245(1) unless it appears to the
Tribunal that there is a serious issue to be heard and
determined as to whether a ground for review set out in
section 246(1) exists.
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249. Leave must be refused if application is about an error
relating to revenue amounts below specified threshold
(1) This section applies if--
(a) leave to apply under section 245(1) is about an
error in a reviewable regulatory decision that is a
full access arrangement decision; and
(b) the ground for review relied on by the applicant
relates to the amount of revenue that may be
earned by a covered pipeline service provider that
is specified in or derived from that decision.
(2) Despite section 248, the Tribunal must not grant leave to
apply under section 245(1) even if there is a serious issue
to be heard and determined as to whether a ground for
review set out in section 246(1) exists unless the amount
that is specified in or derived from the decision exceeds the
lesser of $5 000 000 or 2% of the average annual regulated
revenue of the covered pipeline service provider.
250. Tribunal must refuse to grant leave if submission not made
or is made late
The Tribunal must not grant leave to apply under
section 245(1) to a person or body referred to in
paragraph (b), (c) or (d) of the definition of affected or
interested person or body in section 244 if that person or
body--
(a) did not make a submission or comment in relation
to the making of the reviewable regulatory
decision under review following an invitation to
do so under this Law or the Rules; or
(b) did make a submission or comment in relation to
the making of the reviewable regulatory decision
under review following an invitation to do so
under this Law or the Rules but that submission--
(i) was not made within the time required
under this Law or the Rules following that
invitation; and
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(ii) was not taken into account in the making
of the decision.
251. Tribunal may refuse to grant leave to service provider in
certain cases
(1) This section applies--
(a) in relation to an application under section 245(1)
by a service provider for a review of a reviewable
regulatory decision that applies to the service
provider; and
(b) if the Tribunal is satisfied of the matters set out in
section 248 or 249 to grant leave to apply under
section 245(1).
(2) Despite being satisfied of the matters set out in section 248
or 249 to grant leave to apply under section 245(1), the
Tribunal may refuse to grant leave to the service provider if
the Tribunal is satisfied the service provider--
(a) without reasonable excuse--
(i) failed to comply with a request (including
a request for relevant information), or a
direction made under this Law or the
Rules for the purpose of making the
decision; or
(ii) conducted itself in a manner that resulted
in the making of the decision being
delayed; or
(b) misled, or attempted to mislead--
(i) in all cases, the original decision maker
on a matter relevant to the original
decision maker's decision;
(ii) in the case of a reviewable regulatory
decision that is a Ministerial coverage
decision, the NCC on a matter relevant to
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the making of an NCC recommendation
relating to the decision.
252. Effect of application on operation of reviewable regulatory
decisions
An application under section 245(1)--
(a) does not the stay the operation of the following
reviewable regulatory decisions:
(i) an applicable access arrangement decision
approving or making an applicable access
arrangement; or
(ii) an associate contract decision;
(b) stays the operation of any other reviewable
regulatory decision on the granting of leave to
apply by the Tribunal, unless the Tribunal
otherwise orders.
253. Intervention by others in a review without leave
Only the following persons may intervene in a review
under this Division without leave of the Tribunal:
(a) a service provider to whom the reviewable
regulatory decision being reviewed applies;
(b) a Minister of a participating jurisdiction.
254. Leave for reviewable regulatory decision process
participants
(1) The Tribunal must grant leave to a person or body to
intervene in a review under this Division if that person or
body is a reviewable regulatory decision process
participant.
(2) In this section--
reviewable regulatory decision process participant means
a person or body (other than a user or consumer intervener)
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with a sufficient interest in the reviewable regulatory
decision being reviewed who--
(a) has made a submission or comment in relation to
the making of that decision within the time
required under this Law or the Rules following an
invitation to do so under this Law or the Rules; or
(b) has made a submission or comment in relation to
the making of that decision outside the time
required under this Law or the Rules following an
invitation to do so under this Law or the Rules but
which was taken into account in the making of that
decision.
255. Leave for user or consumer intervener
(1) A user or consumer intervener may apply to the Tribunal
for leave to intervene in a review of a reviewable
regulatory decision under this Division.
(2) The Tribunal may grant leave to a user or consumer
intervener to intervene in a review under this Division.
(3) Without limiting subsection (2), the Tribunal may grant
leave to a user or consumer intervener to intervene in a
review under this Division if the Tribunal is satisfied--
(a) the user or consumer intervener, in its application
for leave to intervene, raises a matter that will not
be raised by the original decision maker or the
applicant; or
(b) the information or material the user or consumer
intervener wishes to present, or the submissions
the user or consumer intervener wishes to make, in
the review are likely to be better presented or
made by the user or consumer intervener rather
than another party to the review; or
(c) the interests of the user or consumer intervener or
its members are affected by the decision being
reviewed.
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(4) For the purposes of subsection (3)(c)--
(a) the interests of a user or consumer intervener are
to be taken to be affected if the reviewable
regulatory decision being reviewed relates to an
object or purpose of the user or consumer
intervener;
(b) the interests of a user or consumer intervener are
not to be taken to not be affected only because
those interests do not coincide with the interests of
the applicant.
256. Interveners may raise new grounds for review
(1) An intervener may raise in a review under this Division
any of the grounds specified in section 246 even if the
ground that is raised by the intervener is not raised by the
applicant.
(2) To avoid doubt, it is for the intervener to establish the
ground referred to in subsection (1).
257. Parties to a review under this Division
The parties to a review under this Division are--
(a) the applicant; and
(b) the original decision maker whose decision is the
reviewable regulatory decision being reviewed
under this Division; and
(c) an intervener.
258. Matters that parties to a review may and may not raise in a
review
(1) An original decision maker whose decision is the
reviewable regulatory decision being reviewed under this
Division may, in the review, raise--
(a) a matter not raised by the applicant or an
intervener that relates to a ground for review, or a
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matter raised in support of a ground for review,
raised by the applicant or an intervener;
(b) a possible outcome or effect on the reviewable
regulatory decision being reviewed that the
original decision maker considers may occur as a
consequence of the Tribunal making a
determination setting aside or varying the
reviewable regulatory decision.
(2) A party (other than the original decision maker) to a review
under this Division may not raise any matter that was not
raised in submissions in relation to the reviewable
regulatory decision before that decision was made.
259. Tribunal must make determination
(1) If, following an application, the Tribunal grants leave in
accordance with section 245, the Tribunal must make a
determination in respect of the application.
Note--
See section 260 for the time limit within which the
Tribunal must make its determination.
(2) A determination under this section may--
(a) affirm, set aside or vary the reviewable regulatory
decision;
(b) remit the matter back to the original decision
maker to make the decision again, in accordance
with any direction or recommendation of the
Tribunal.
(3) For the purposes of making a determination of the kind in
subsection (2)(a), the Tribunal may perform all the
functions and exercise all the powers of the original
decision maker under this Law or the Rules.
(4) In deciding whether to remit a matter back to the original
decision maker to make the decision again, the Tribunal
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must have regard to the nature and relative complexities
of--
(a) the reviewable regulatory decision; and
(b) the matter the subject of the review.
(5) A determination by the Tribunal affirming, setting aside or
varying the reviewable regulatory decision is, for the
purposes of this Law (other than this Part), to be taken to
be a decision of the original decision maker.
260. Target time limit for Tribunal for making a determination
under this Division
(1) The Tribunal must use its best endeavours to make a
determination in respect of the application for review under
this Division--
(a) within 3 months after the Tribunal grants leave in
accordance with section 245 (the standard
period); or
(b) if the standard period is extended under this
section--that period as extended.
(2) If the Tribunal is unable to make a determination in respect
of the application within the standard period, or that period
as extended, the Tribunal must, by notice in writing, extend
the standard period or that period by a specified period.
(3) The Tribunal must give a copy of the notice to--
(a) the applicant; and
(b) every other party to the application.
(4) The Tribunal may extend the standard period, or that
period as extended, more than once.
(5) If the Tribunal extends a period, it must publish a notice in
a newspaper circulating generally throughout Australia--
(a) stating that it has done so; and
(b) specifying a date by which it must now use its best
endeavours to make the determination.
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261. Matters to be considered by Tribunal in making
determination
(1) Subject to this section, the Tribunal, in reviewing a
reviewable regulatory decision, must not consider any
matter other than review related matter.
(2) The Tribunal, in reviewing a reviewable regulatory
decision, must--
(a) in all cases, have regard to any document--
(i) prepared, and used, by the original
decision maker for the purpose of making
the reviewable regulatory decision; and
(ii) that the decision maker has made publicly
available; and
(b) in the case of a reviewable regulatory decision that
is a Ministerial coverage decision, also have
regard to any document--
(i) prepared, and used, by the NCC for the
purpose of making the NCC
recommendation relating to the
Ministerial coverage decision; and
(ii) that the NCC has made publicly available.
(3) In addition, if in a review, the Tribunal is of the view that a
ground of review has been established, the Tribunal may
allow new information or material to be submitted if the
new information or material--
(a) would assist it on any aspect of the determination
to be made; and
(b) was not unreasonably withheld from--
(i) in all cases, the original decision maker
when the decision maker was making the
reviewable regulatory decision; and
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(ii) in the case of a reviewable regulatory
decision that is a Ministerial coverage
decision, the NCC when it was it making
the NCC recommendation related to
Ministerial coverage decision.
(4) Subject to this Law, for the purpose of subsection (3)(b),
information or material not provided to the original
decision maker or the NCC (as the case requires) following
a request for that information or material by the original
decision maker or the NCC under this Law or the Rules is
to be taken to have been unreasonably withheld.
(5) Subsection (4) does not limit what may constitute an
unreasonable withholding of information or material.
(6) In the case of a review of a reviewable regulatory decision
of the AER that is a decision to make a full access
arrangement decision in place of an access arrangement
that the AER did not approve, the Tribunal may consider
the reasons of the AER for its decision not to approve the
access arrangement.
(7) In this section--
review related matter means--
(a) the application for review and submissions in
support of the application; and
(b) the reviewable regulatory decision and the written
record of it and any written reasons for it; and
(c) in the case of a reviewable regulatory decision that
is an applicable access arrangement decision--any
document, proposal or information required or
allowed under the Rules to be submitted as part of
the process for the making of the decision; and
(d) any written submissions made to the original
decision maker before the reviewable regulatory
decision was made or the NCC before the making
of an NCC recommendation; and
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(e) any reports and materials relied on by the original
decision maker in making the reviewable
regulatory decision or the NCC in making an NCC
recommendation; and
(f) any draft of the reviewable regulatory decision or
NCC recommendation; and
(g) any submissions on--
(i) the draft of the reviewable regulatory
decision or the reviewable regulatory
decision itself considered by the original
decision maker; or
(ii) the draft of an NCC recommendation or
the NCC recommendation itself
considered by the NCC; and
(h) the transcript (if any) of any hearing conducted by
the original decision maker for the purpose of
making the reviewable regulatory decision.
262. Assistance from NCC in certain cases
(1) This section applies if the reviewable regulatory decision
being reviewed under this Division is a Ministerial
coverage decision.
(2) The member of the Tribunal presiding in the review may
require the NCC to give information and other assistance
and to make reports, as specified, by the member for the
purposes of the review.
Division 3 -- Tribunal review of AER information disclosure
decisions under section 329
263. Application for review
(1) A person whose interests are adversely affected by an AER
information disclosure decision may apply to the Tribunal
for a review of the decision.
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(2) An application must be made in the form and manner
determined by the Tribunal.
(3) An application may only be made on the ground that--
(a) the decision was not made in accordance with law;
or
(b) the decision is unreasonable having regard to all
relevant circumstances.
(4) The person must lodge the application with the Tribunal no
later than 5 business days after the date of the notice given
under section 329(2), (3) or (6) to which the AER
information disclosure decision relates (whichever is the
later).
(5) An application under this section stays the operation of the
decision until the earlier of--
(a) 20 business days; or
(b) the making of a determination by the Tribunal in
respect of the application.
264. Exclusion of public in certain cases
On the application of a party to a review under this
Division, the Tribunal may conduct the review in the
absence of the public.
265. Determination in the review
(1) Subject to this Part, on receipt of an application under
section 263, the Tribunal must make a determination in
respect of the application.
(2) A determination under this section must only--
(a) affirm the AER information disclosure decision; or
(b) forbid disclosure by the AER of the information or
document to which the AER information
disclosure decision the subject of the review
relates; or
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(c) restrict, as specified in the determination, the
intended disclosure by the AER of the information
or document to which the AER information
disclosure decision the subject of the review
relates.
(3) For the purposes of making a determination of the kind in
subsection (2)(a), the Tribunal may perform all the
functions and exercise all the powers of the AER under this
Law or the Rules.
(4) A determination by the Tribunal affirming, forbidding or
restricting the AER information disclosure decision is, for
the purposes of this Law (other than this Part), to be taken
to be a decision of the AER.
266. Tribunal must be taken to have affirmed decision if decision
not made within time
(1) This section applies if the Tribunal does not make a
determination under section 265 within 20 business days
after an application is lodged under section 263.
(2) The Tribunal must be taken to have made a determination
under section 265 affirming the AER information
disclosure decision to which the application relates.
267. Assistance from the AER in certain cases
The member of the Tribunal presiding in the review may
require the AER to give information and other assistance
and to make reports, as specified, by the member for the
purposes of the review.
Division 4 -- General
268. Costs in a review
(1) Subject to this section, the Tribunal may order that a party
to a review under this Part pay all or a specified part of the
costs of another party to the review.
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(2) The Tribunal must not make an order requiring an original
decision maker or small/medium user or consumer
intervener to pay the costs of another party to the review
unless the Tribunal considers that the original decision
maker or intervener has conducted their case in the review
without due regard to--
(a) the costs that would have to be incurred by another
party to the review as a result of that conduct; or
(b) the time required by--
(i) the Tribunal to hear the review as a result
of that conduct; or
(ii) another party to prepare their case as a
result of that conduct; or
(c) the submissions or arguments made to the
Tribunal by another party.
(3) The Tribunal may make an order requiring a user or
consumer intervener (that is not a small/medium user or
consumer intervener) that has intervened in the review to
pay all or part of the costs of another party to the review if
the Tribunal considers that the intervener has conducted
their case in the review without due regard to--
(a) the costs that would have to be incurred by another
party to the review as a result of that conduct; or
(b) the time required by--
(i) the Tribunal to hear the review as a result
of that conduct; or
(ii) another party to prepare their case as a
result of that conduct; or
(c) the submissions or arguments made to the
Tribunal by another party.
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269. Amount of costs
If the Tribunal makes an order for costs in a review under
this Part, the Tribunal may in that order fix the amount of
costs payable by a party to the review on--
(a) a party and party basis; or
(b) a solicitor and client basis; or
(c) an indemnity basis; or
(d) any other basis as the Tribunal may decide.
270. Review of Part
(1) The MCE must cause a review of this Part to be undertaken
within 7 years after the commencement of this Part by a
person nominated by the MCE.
(2) The MCE must specify the matters to be addressed in the
review.
(3) The person undertaking the review must, during the
review, invite public comment and submissions about the
matters to be addressed in the review.
(4) The person undertaking the review must report, in writing,
to the MCE on the outcome of the review by the date
specified by the MCE.
Part 6 -- Enforcement of access determinations
271. Enforcement of access determinations
(1) If the Court is satisfied, on the application of a party to an
access determination, that another party to the
determination has engaged, is engaging, or is proposing to
engage in conduct that constitutes a contravention of the
determination, the Court may make all or any of the
following orders:
(a) an order granting an injunction on such terms as
the Court thinks appropriate--
(i) restraining the other party from engaging
in the conduct; or
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(ii) if the conduct involves refusing or failing
to do something--requiring the other
party to do that thing;
(b) an order directing the other party to compensate
the applicant for loss or damage suffered as a
result of the contravention;
(c) any other order that the Court thinks appropriate.
(2) The revocation of an access determination does not affect
any remedy under subsection (1) in respect of a
contravention of the determination that occurred when the
determination was in force.
(3) If the Court has power under subsection (1) to grant an
injunction restraining a person from engaging in particular
conduct, or requiring a person to do anything, the Court
may make any other orders (including granting an
injunction) that it thinks appropriate against any other
person who was involved in the contravention concerned.
(4) A reference in this section to a person involved in the
contravention is a reference to a person who has--
(a) aided, abetted, counselled or procured the
contravention; or
(b) induced the contravention, whether through threats
or promises or otherwise; or
(c) been in any way (directly or indirectly) knowingly
concerned in or a party to the contravention; or
(d) conspired with others to effect the contravention.
272. Consent injunctions
On an application for an injunction under section 271, the
Court may grant an injunction by consent of all of the
parties to the proceedings, whether or not the Court is
satisfied that the section applies.
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273. Interim injunctions
The Court may grant an interim injunction pending
determination of an application under section 271.
274. Factors relevant to granting a restraining injunction
The power of the Court to grant an injunction under
section 271 restraining a person from engaging in conduct
may be exercised whether or not--
(a) it appears to the Court that the person intends to
engage again, or to continue to engage, in conduct
of that kind; or
(b) the person has previously engaged in conduct of
that kind; or
(c) there is an imminent danger of substantial damage
to any person if the first mentioned person engages
in conduct of that kind.
275. Factors relevant to granting a mandatory injunction
The power of the Court to grant an injunction under
section 271 requiring a person to do a thing may be
exercised whether or not--
(a) it appears to the Court that the person intends to
refuse or fail again, or to continue to refuse or fail,
to do that thing; or
(b) the person has previously refused or failed to do
that thing; or
(c) there is an imminent danger of substantial damage
to any person if the first mentioned person refuses
or fails to do that thing.
276. Discharge or variation of injunction or other order
The Court may discharge or vary an injunction or order
granted under this Part.
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Part 7 -- Infringement notices
277. Power to serve notice
(1) The AER may serve an infringement notice on a person
that the AER has reason to believe has breached a civil
penalty provision.
(2) The AER must, however, serve an infringement notice not
later than 12 months after the date on which the AER
forms a belief that there has been a breach of a civil penalty
provision.
(3) An infringement notice may be served on a natural
person--
(a) by delivering it personally to the person; or
(b) by sending it by post addressed to the person to
their usual or last known place of residence or
business.
(4) An infringement notice may be served on a person that is a
body corporate--
(a) by delivering it personally to the registered office
or usual or last known place of business of the
body corporate; or
(b) by sending it by post addressed to the body
corporate to its registered office or usual or last
known place of business.
278. Form of notice
An infringement notice must state--
(a) the date of the notice;
(b) that the alleged breach is a breach of the civil
penalty provision;
(c) the nature, and a brief description, of the alleged
breach;
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(d) the date, time and place of the alleged breach;
(e) the infringement penalty for the alleged breach;
(f) the manner in which the infringement penalty may
be paid;
(g) the time (being not less than 28 days after the date
on which the notice is served) within which the
infringement penalty must be paid;
(h) that, if the amount of the infringement penalty is
paid before the end of the time specified in the
notice, proceedings will not be instituted in respect
of the alleged breach by the AER unless the notice
is withdrawn before the end of that time in
accordance with section 282;
(i) that the person is entitled to disregard the notice
and defend any proceedings in respect of the civil
penalty provision;
(j) any other particulars prescribed by the
Regulations.
279. Infringement penalty
The infringement penalty for a breach of a civil penalty
provision is--
(a) if the breach is alleged to have been committed by
a natural person--$4 000 or any lesser amount that
is prescribed by the Regulations in relation to the
civil penalty provision;
(b) if the breach is alleged to have been committed by
a body corporate--$20 000 or any lesser amount
that is prescribed by the Regulations in relation to
the civil penalty provision.
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280. AER cannot institute proceedings while infringement notice
on foot
On serving an infringement notice under this Part, the AER
must not institute a proceeding in respect of the breach for
which the infringement notice was served if--
(a) the time for payment stated in the infringement
notice has not expired; and
(b) the infringement notice has not been withdrawn by
the AER in accordance with section 282.
281. Late payment of penalty
The AER may accept payment of the infringement penalty
even after the expiration of the time for payment stated in
the infringement notice if--
(a) a proceeding has not been instituted in respect of
the breach to which the infringement penalty
relates; and
(b) the infringement notice has not been withdrawn by
the AER in accordance with section 282.
282. Withdrawal of notice
(1) The AER may withdraw an infringement notice at any time
before the end of the time for payment specified in the
notice by serving a withdrawal notice on the person served
with the infringement notice.
(2) A withdrawal notice may be served on a natural person--
(a) by delivering it personally to the person; or
(b) by sending it by post addressed to the person to
their usual or last known place of residence or
business.
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(3) A withdrawal notice may be served on a person that is a
body corporate--
(a) by delivering it personally to the registered office
or usual or last known place of business of the
body corporate; or
(b) by sending it by post addressed to the body
corporate to its registered office or usual or last
known place of business.
(4) An infringement notice may be withdrawn even if the
infringement penalty has been paid.
283. Refund of infringement penalty
If an infringement notice is withdrawn in accordance with
section 282, the amount of any infringement penalty paid
must be refunded by the AER.
284. Payment expiates breach of civil penalty provision
No proceedings may be taken by the AER against a person
on whom an infringement notice was served in respect of
an alleged breach of a civil penalty provision if--
(a) the infringement penalty is--
(i) paid within the time for payment stated in
the notice; and
(ii) not withdrawn by the AER within the
time for payment stated in the notice in
accordance with section 282; or
(b) the infringement penalty is accepted in accordance
with section 281.
285. Payment not to have certain consequences
The payment of an infringement penalty under this Part is
not and must not be taken to be an admission of a breach of
a civil penalty provision or an admission of liability for the
purpose of any proceeding instituted in respect of the
breach.
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286. Conduct in breach of more than 1 civil penalty provision
(1) If the conduct of a person constitutes a breach of 2 or more
civil penalty provisions, an infringement notice may be
served on the person under this Part in relation to the
breach of any 1 or more of those provisions.
(2) However, the person is not liable to pay more than 1
infringement penalty in respect of the same conduct.
Part 8 -- Further provision for corporate liability for breaches
of this Law etc
287. Definition
In this Part--
breach provision means an offence provision, a civil
penalty provision or a conduct provision.
288. Offences and breaches by corporations
(1) If a corporation contravenes a breach provision, each
officer of the corporation is to be taken to have
contravened the breach provision if the officer knowingly
authorised or permitted the contravention or breach.
(2) An officer of a corporation may be proceeded against under
a breach provision pursuant to this section whether or not
the corporation has been proceeded against under the
provision.
(3) Nothing in this section affects the liability of a corporation
for a contravention of a breach provision.
289. Corporations also in breach if officers and employees are in
breach
If an officer or employee of a corporation commits an act
in their capacity as officer or employee of the corporation
that would, if that act were committed by the corporation,
constitute a breach of a provision of this Law, the
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Regulations or the Rules, that corporation is to be taken to
have contravened that provision.
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Chapter 9 -- The making of the National Gas Rules
Part 1 -- General
Division 1 -- Interpretation
290. Definitions
In this Chapter--
AEMC initiated Rule means a Rule of the kind referred to
in section 295(2);
AEMC Rule review means a review conducted by the
AEMC under Chapter 2 Part 2 Division 5;
gas market regulatory body means--
(a) the AER;
(b) the ERA;
(c) VENCorp;
(d) GMCo;
(e) REMCo;
(f) a person or body prescribed by Regulation to be a
gas market regulatory body;
GMCo means the Gas Market Company Ltd
(ACN 095 400 258);
market initiated proposed Rule means a request for a Rule
made under section 295(1) in respect of which the AEMC
publishes a notice under section 303;
more preferable Rule has the meaning given by
section 296;
non-controversial Rule means a Rule that is unlikely to
have a significant effect on a market for gas or the
regulation of pipeline services;
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proposed Rule means--
(a) a market initiated proposed Rule; or
(b) a proposal for an AEMC initiated Rule; or
(c) a proposed more preferable Rule;
publish means--
(a) in relation to a notice required to be published
under this Chapter (except section 315)--publish
in the South Australian Government Gazette, on
the AEMC's website and in a newspaper
circulating generally throughout Australia;
(b) in relation to a decision under section 301(2)--
publish on the AEMC's website and make
available at the offices of the AEMC;
(c) in relation to a proposed Rule referred to in
section 303 and any other documents prescribed
by the Regulations in relation to a proposed Rule
referred to in section 303--publish on the
AEMC's website and make available at the offices
of the AEMC;
(d) in relation to a draft Rule determination or final
Rule determination--publish on the AEMC's
website and make available at the offices of the
AEMC;
(e) in relation to any submissions or comments
received by the AEMC under this Chapter--
subject to section 319, publish on the AEMC's
website and make available at the offices of the
AEMC;
(f) in relation to a report prepared under
section 320--publish on the AEMC's website and
make available at the offices of the AEMC;
REMCo means the Retail Energy Market Company Ltd
(ACN 103 318 556);
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urgent Rule means a Rule relating to any matter or thing
that, if not made as a matter of urgency, will result in that
matter or thing imminently prejudicing or threatening the
supply of gas.
Division 2 -- Rule making tests
291. Application of national gas objective
(1) The AEMC may only make a Rule if it is satisfied that the
Rule will or is likely to contribute to the achievement of
the national gas objective.
(2) For the purposes of subsection (1), the AEMC may give
such weight to any aspect of the national gas objective as it
considers appropriate in all the circumstances, having
regard to any relevant MCE statement of policy principles.
292. AEMC must take into account form of regulation factors in
certain cases
In addition to complying with sections 291 and 293, the
AEMC must take into account the form of regulation
factors and any other matter the AEMC considers
relevant--
(a) in making a Rule that--
(i) specifies a pipeline service as a reference
service; or
(ii) confers a function or power on the AER
to specify under a full access arrangement
decision approving or making an access
arrangement a pipeline service (to which
the relevant applicable access
arrangement applies) as a reference
service; or
(b) in revoking a Rule that has been made or is in
force that--
(i) specifies a pipeline service as a reference
service; or
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(ii) confers a function or power on the AER
to specify under a full access arrangement
decision approving or making an access
arrangement a pipeline service (to which
the relevant applicable access
arrangement applies) as a reference
service.
293. AEMC must take into account revenue and pricing
principles in certain cases
In addition to complying with sections 291 and 292, the
AEMC must take into account the revenue and pricing
principles in making a Rule for or with respect to any
matter or thing specified in items 40 to 48 of Schedule 1 to
this Law.
Part 2 -- Initial National Gas Rules
294. Initial National Gas Rules for WA
(1) The National Gas Rules (the initial National Gas Rules)
that apply upon section 30 of the National Gas Access
(WA) Act 2009 coming into operation are as set out in the
document called the National Gas Rules 2008, signed on
1 July 2008 by the Minister for Energy of South Australia,
as affected, if applicable, by any amendments made by the
AEMC under national gas legislation before the coming
into operation of that section.
(2) Subsection (1) does not prevent the AEMC from making
Rules under this Chapter that amend or revoke the initial
National Gas Rules.
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Part 3 -- Procedure for the making of a Rule by the AEMC
295. Initiation of making of a Rule
(1) The AEMC may make a Rule at the request of any person
or the MCE.
Note--
Section 74 and Schedule 1 to this Law specify the subject
matter for Rules.
(2) The AEMC must not make a Rule without a request under
subsection (1) unless--
(a) it considers the Rule corrects a minor error in the
Rules; or
(b) it considers the Rule involves a non-material
change to the Rules; or
(c) the Rule is in respect of any matter that is
prescribed by the Regulations as a matter on which
it may make a Rule on its own initiative.
296. AEMC may make more preferable Rule in certain cases
The AEMC may make a Rule that is different (including
materially different) from a market initiated proposed Rule
(a more preferable Rule) if the AEMC is satisfied that,
having regard to the issue or issues that were raised by the
market initiated proposed Rule (to which the more
preferable Rule relates), the more preferable Rule will or is
likely to better contribute to the achievement of the
national gas objective.
297. AEMC may make Rules that are consequential to a Rule
request
(1) Despite section 295(2), the AEMC may, having regard to a
request to make a Rule under section 295(1), make a Rule
that is necessary or consequential to the Rule that is to be
made on that request.
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(2) For the purposes of this Chapter, the AEMC must treat a
Rule it may make under subsection (1) as if it were part of
the Rule to be made on that request.
298. Content of requests for a Rule
A request for the making of a Rule--
(a) must contain the information prescribed by the
Regulations; and
(b) must, subject to section 299, be accompanied by
the fee prescribed by the Regulations (if any); and
(c) may be accompanied by a draft of the Rule to be
made.
299. Waiver of fee for Rule requests
The AEMC may waive the payment of any fee prescribed
by the Regulations for the purposes of section 298.
300. Consolidation of 2 or more Rule requests
(1) If the AEMC considers it necessary or desirable that 2 or
more requests for the making of a Rule should be dealt
with together, the AEMC may--
(a) treat those requests as 1 request for the purposes of
this Chapter (a consolidated Rule request); or
(b) treat any later request as a submission in relation
to the earliest Rule request.
(2) For the purposes of this Chapter, the AEMC may treat a
consolidated Rule request as being received by it on the
day it receives either the first or last of the Rule requests
forming part of the consolidated Rule request.
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301. Initial consideration of request for Rule
(1) Subject to this Chapter, as soon as practicable after
receiving a request for the making of a Rule (an active
request), the AEMC must consider whether--
(a) the active request appears to--
(i) contain the information prescribed by the
Regulations; and
(ii) not be misconceived or lacking in
substance; and
(b) the subject matter of the active request appears to
be for or with respect to a matter in respect of
which the AEMC may make a Rule under this
Law; and
Note--
Section 74 and Schedule 1 to this Law specify
the subject matter for Rules.
(c) the subject matter of the active request appears to
relate to the subject matter of--
(i) a Rule made, or a request for the making
of a Rule under section 295(1) not
proceeded with, in the 12 months
immediately before the date of receipt of
the active request; or
(ii) another request for the making of a Rule
under section 295(1) in respect of which
the AEMC is taking action under this
Part.
(2) If the AEMC considers that, having regard to the matters
set out in subsection (1), it should not take any action under
this Part in respect of the active request, the AEMC must
make a decision to that effect and inform the person or
body, in writing, that requested the Rule of that decision.
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(3) Despite subsection (1) or (2), the AEMC may make a
decision to the effect that it should not take any action
under this Part in respect of the active request if the person
or body that made the active request has not complied with
a notice in accordance with section 302.
(4) In making a decision under subsection (3), the AEMC must
have regard to any representation it receives under
section 302(4).
(5) A decision under subsection (2) or (3) must--
(a) set out the reasons for the decision; and
(b) be given to the person or body that made the active
request without delay; and
(c) in the case where the decision was made only
because of the matters set out in
subsection (1)(c)--be published.
(6) Subject to this Chapter, if the AEMC considers that, having
regard to the matters set out in subsection (1), it should
take action under this Part in respect of an active request
the AEMC must publish notice of that active request in
accordance with section 303.
302. AEMC may request further information from Rule
proponent in certain cases
(1) This section applies if the AEMC--
(a) receives a request for the making of a Rule under
section 295(1); and
(b) considers, having regard to the nature and content
of the request, that further information is required
from the person or body that has made the request
to assist it to understand the request's purpose or
content.
(2) The AEMC may, by notice in writing, request the person or
body that made the request under section 295(1) to provide
the AEMC further information.
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(3) A notice under subsection (2) must specify--
(a) the kind of information the AEMC requires from
the person or body; and
(b) the time within which that information must be
provided to the AEMC.
(4) A person or body given a notice under this section may
make a written representation to the AEMC as to why it
cannot provide the information specified in the notice
within the time specified in the notice.
303. Notice of proposed Rule
(1) This section applies if the AEMC--
(a) considers that it should take action under this Part
in respect of a request for the making of a Rule; or
(b) forms an intention to make an AEMC initiated
Rule.
(2) The AEMC must publish--
(a) notice of the request or intention (as the case
requires); and
(b) a draft of the proposed Rule; and
(c) any other document prescribed by the Regulations.
(3) A notice published under this section must--
(a) invite written submissions and comments from any
person or body in relation to the proposed Rule by
the date specified in the notice by the AEMC,
being a date that is not less than 4 weeks from the
date the notice is published; and
(b) contain any other information prescribed by the
Regulations.
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(4) Nothing in this Part is to be taken as requiring the AEMC
to publish notices under this section in the same order as
it--
(a) considers that it should take action under this Part
in respect of a request for the making of a Rule; or
(b) forms an intention to make an AEMC initiated
Rule.
304. Publication of non-controversial or urgent final Rule
determination
(1) Subject to this section, if the AEMC considers that--
(a) an AEMC initiated Rule is a non-controversial
Rule; or
(b) a request for a Rule is a request for a
non-controversial Rule; or
(c) a request for a Rule is a request for an urgent Rule,
the AEMC may make the relevant Rule in accordance with
this Part (except sections 307 to 310) and as if the period of
time within which the final Rule determination in respect
of the relevant Rule must be published were 6 weeks from
the date of publication of the notice under section 303.
(2) Before making a Rule as set out in subsection (1), the
AEMC must include in a notice under section 303 a
statement to the effect that the AEMC may make the
relevant Rule if the AEMC does not receive a written
request, and reasons, not to do so from any person or body
within 2 weeks of publication of that notice.
(3) The AEMC must not make a Rule in accordance with this
section if, following publication of a notice under
section 303 containing a statement to the effect set out in
subsection (2)--
(a) the AEMC receives a written request not to do so;
and
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(b) the reasons set out in that request are not, in its
opinion, misconceived or lacking in substance.
(4) If the AEMC is of the opinion that the reasons given by a
person or body in a written request for it not to make the
non-controversial Rule or urgent Rule are misconceived or
lacking in substance, the AEMC must--
(a) make a decision to that effect; and
(b) give the person or body its reasons, in writing, for
that decision without delay.
(5) If the AEMC is of the opinion that the reasons given by a
person or body in a written request for it not to make the
non-controversial Rule or urgent Rule, are not
misconceived or lacking in substance, the AEMC must
publish a notice to the effect that it will make the relevant
Rule in accordance with this Part (other than this section).
305. "Fast track" Rules where previous public consultation by
gas market regulatory body or an AEMC review
(1) This section applies if--
(a) a gas market regulatory body has--
(i) made a request for the making of a Rule
under section 295(1); and
(ii) consulted with the public on the nature
and content of the request before making
that request; or
(b) a person or the MCE has made a request for the
making of a Rule under section 295(1) on the basis
of--
(i) a recommendation for the making of a
Rule contained in a MCE directed review;
or
(ii) a conclusion for the making of a Rule
contained in an AEMC Rule review.
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(2) The AEMC may take action under this Part in respect of
the request without complying with section 303(3)(a) or
307 if it is of the opinion that--
(a) in the case where the request has been made by a
gas market regulatory body in the circumstances
described in subsection (1)(a)--the consultation
conducted by the gas market regulatory body was
adequate, having regard to--
(i) the nature and content of that request; and
(ii) the kind of consultation conducted by the
gas market regulatory body;
(b) in the case where a request has been made by a
person or the MCE in the circumstances described
in subsection (1)(b)--
(i) the request reflects, or is consistent with,
the relevant recommendation contained in
the MCE directed review or relevant
conclusion in the AEMC Rule review (as
the case requires); and
(ii) there was adequate consultation with the
public by it on the content of the relevant
recommendation or relevant conclusion
during the MCE directed review or
AEMC Rule review (as the case requires).
(3) To avoid doubt--
(a) section 301 applies to a request for the making of a
Rule to which this section applies; and
(b) section 306 does not apply to a request for the
making of a Rule to which this section applies.
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306. Right to make written submissions and comments
Any person or body, within the period specified in a notice
under section 303, may make a written submission or
comment in relation to the proposed Rule to which the
notice relates.
307. AEMC may hold public hearings before draft Rule
determination
(1) The AEMC may (but need not), at any time after
publication of a notice under section 303 and before
making a draft Rule determination, hold a hearing in
relation to any proposed Rule.
(2) Notice of a hearing held under this section must--
(a) be published; and
(b) contain the information prescribed by the
Regulations (if any).
308. Draft Rule determination
(1) The AEMC must make a draft Rule determination before
making a final Rule determination in relation to the
proposed Rule.
(2) Subject to this Chapter, the AEMC must, within 10 weeks
after the date specified in a notice under section 303,
publish--
(a) the draft Rule determination; and
(b) notice of the making of the draft Rule
determination.
(3) In the case of a proposed Rule to which section 305
applies, the AEMC must publish the draft Rule
determination and notice of the making of the draft Rule
determination within 5 weeks after the date notice under
section 303(2) is published.
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(4) A draft Rule determination must contain--
(a) the reasons of the AEMC as to whether or not it
should make the proposed Rule, including--
(i) in the case where the proposed Rule is not
a proposed more preferable Rule, the
reasons of the AEMC as to whether it is
satisfied the proposed Rule will or is
likely to contribute to the achievement of
the national gas objective; and
(ii) in the case of a proposed more preferable
Rule, the reasons of the AEMC as to
whether it is satisfied the proposed more
preferable Rule will or is likely to better
contribute to the achievement of the
national gas objective than the market
initiated Rule request to which the more
preferable Rule relates; and
(iii) if the AEMC is required to take into
account the form of regulation factors or
the revenue and pricing principles, the
reasons of the AEMC taking those factors
or principles (as the case requires) into
account; and
(iv) the reasons of the AEMC having regard to
any relevant MCE statement of policy
principles; and
(v) the reasons of the AEMC having regard to
any other matters the AEMC considers
relevant; and
(b) if the AEMC determines to make a Rule, a draft of
the Rule to be made; and
(c) any other matters that are prescribed by the
Regulations.
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(5) A notice referred to in subsection (2) must--
(a) invite written submissions and comments from any
person or body in relation to the determination
within a period specified by the AEMC, being a
period not less than 6 weeks from the date of
publication of the notice; and
(b) include a statement to the effect that any person or
body may request, in writing within 1 week after
the publication of the notice, the AEMC to hold a
hearing in accordance with section 310; and
(c) contain any other information prescribed by the
Regulations.
309. Right to make written submissions and comments in
relation to draft Rule determination
Any person or body, within the period specified in a notice
under section 308(1), may make a written submission or
comment in relation to a draft Rule determination to which
the notice relates.
310. Pre-final Rule determination hearing may be held
(1) The AEMC may (but need not), at any time after
publication of a notice under section 308(2) and before
making a final Rule determination, hold a hearing in
relation to a draft Rule determination.
(2) In addition, any person or body may request, in writing,
within 1 week after the publication of a notice under
section 308(2), the AEMC to hold a hearing in relation to a
draft Rule determination.
(3) Despite subsection (2), the AEMC may decide not to a
hold a hearing in relation to a draft Rule determination.
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(4) Without limiting the reasons why the AEMC may decide
not to a hold a hearing following a request under
subsection (2) in relation to a draft Rule determination, the
AEMC may decide not to hold a hearing if--
(a) the person or body that requests the AEMC to hold
a hearing does not make a written submission or
comment in accordance with section 309; and
(b) no other person or body requests the AEMC to
hold a hearing.
(5) If the AEMC decides not to hold a hearing after a request
under subsection (2), it must give the person or body that
requested the hearing its reasons, in writing, for declining
that person's or body's request.
(6) If the AEMC decides to hold a hearing, or agrees to hold a
hearing after a request under subsection (2), the AEMC
must--
(a) appoint a date (being not later than 3 weeks after
the date of publication of the notice under
section 308), time and place for the holding of the
hearing; and
(b) publish a notice of that date, time and place.
311. Final Rule determination
(1) Subject to section 312, the AEMC must make a final Rule
determination as to whether to make a proposed Rule.
(2) Subject to this Chapter, the AEMC must, within 6 weeks
after the period for written submissions or comments in
relation to the draft Rule determination ends, publish--
(a) the final Rule determination; and
(b) notice of the making of the final Rule
determination.
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(3) A final Rule determination must contain--
(a) the reasons of the AEMC as to whether or not it
should make a Rule, including--
(i) in the case where the Rule to be made is
not a more preferable Rule, the reasons of
the AEMC as to whether it is satisfied the
Rule will or is likely to contribute to the
achievement of the national gas objective;
and
(ii) in the case where the Rule to be made is a
more preferable Rule, the reasons of the
AEMC as to whether it is satisfied the
more preferable Rule to be made will or is
likely to better contribute to the
achievement of the national gas objective
than the market initiated Rule request to
which the more preferable Rule relates;
and
(iii) if the AEMC is required to take into
account the form of regulation factors or
the revenue and pricing principles, the
reasons of the AEMC taking those factors
or principles (as the case requires) into
account; and
(iv) the reasons of the AEMC having regard to
any relevant MCE statement of policy
principles; and
(v) the reasons of the AEMC having regard to
any other matters the AEMC considers
relevant; and
(b) any other matters that are prescribed by the
Regulations.
(4) A notice referred to in subsection (2) must contain the
information prescribed by the Regulations.
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312. Further draft Rule determination may be made where
proposed Rule is a proposed more preferable Rule
(1) This section applies if the AEMC proposes to make a more
preferable Rule.
(2) Without limiting this Chapter, the AEMC may take action
again under sections 308 to 310 in respect of the proposed
more preferable Rule before making a final Rule
determination in respect of that Rule.
(3) Sections 308 to 310 apply as if, in section 308(2), for "the
date specified in a notice under section 303" there were
substituted "the date of the previous draft Rule
determination".
313. Making of Rule
(1) Subject to this section, if the AEMC, in its final Rule
determination, determines to make a Rule, the AEMC must
make the relevant Rule as soon as practicable after the
publication of the final Rule determination.
(2) Notice of the making of the Rule must be published in the
South Australian Government Gazette as soon as
practicable after the making of the Rule.
314. Operation and commencement of Rule
A Rule made under section 313 commences operation on
the day the relevant notice is published in the South
Australian Government Gazette or on any day after that
day that is provided for in the relevant notice or the Rule.
315. Rule that is made to be published on website and made
available to the public
On publication of a notice in accordance with
section 313(2), the AEMC must, without delay--
(a) publish the Rule on its website; and
(b) make copies of the Rule available to the public at
its offices.
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316. Evidence of the National Gas Rules
A document purporting to be a copy of--
(a) the National Gas Rules; or
(b) the initial National Gas Rules; or
(c) an amendment to the initial National Gas Rules or
the National Gas Rules,
endorsed with a certificate to which the seal of the AEMC
has been duly affixed certifying the document is such a
copy, is evidence that the document is such a copy.
Part 4 -- Miscellaneous provisions relating to rule making by
the AEMC
317. Extension of periods of time in Rule making procedure
(1) Despite anything to the contrary in this Chapter and
without limiting section 318, the AEMC may, by notice,
extend a period of time specified in Chapter 9 Part 3 if the
AEMC considers that a request for a Rule raises issues of
sufficient complexity or difficulty or there is a material
change in circumstances such that it is necessary that the
relevant period of time specified in Chapter 9 Part 3 be
extended.
(2) A notice under subsection (1) must--
(a) be published; and
(b) set out the period of time specified in Chapter 9
Part 3 to be extended; and
(c) specify a new period of time to apply in the place
of the period of time specified in Chapter 9 Part 3.
(3) A notice under subsection (1) may be published at the same
time as a notice under section 303.
(4) The AEMC may only extend a period of time under this
section before the expiry of that time.
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318. AEMC may extend period of time for making of final Rule
determination for further consultation
(1) This section applies if--
(a) a person or body raises an issue in--
(i) a submission or comment in relation to a
draft Rule determination; or
(ii) a hearing held under section 307 or 310;
and
(b) the AEMC considers the issue raised by the person
or body requires further public consultation in
relation to the proposed Rule or draft Rule
determination.
(2) Despite anything to the contrary in this Chapter and
without limiting section 317, the AEMC may, by notice,
extend the period of time specified in section 311 within
which it must make a final Rule determination.
(3) A notice under subsection (2) must--
(a) be published; and
(b) specify a new period of time to apply in the place
of the period of time specified in section 311; and
(c) specify the issue on which the AEMC requires
further public submissions and comments; and
(d) invite written submissions and comments from any
person or body by the date specified in the notice.
(4) The new period of time must not have the effect of
extending the relevant period of the time specified in
section 311 by more than 4 weeks.
(5) The AEMC may only extend the period of time under this
section before the expiry of time specified in section 311.
(6) Any person or body, within the period specified in a notice
under subsection (2), may make a written submission or
comment in relation to the issue specified in the notice.
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319. AEMC may publish written submissions and comments
unless confidential
(1) Subject to this section, the AEMC may publish any
information in any written submission or comment given to
it under this Chapter unless--
(a) the person or body who gave the information,
claims, when giving it to the AEMC, that it
contains confidential information; and
(b) the AEMC decides that the written submission or
comment contains confidential information.
(2) A written submission or comment given to the AEMC
under this Chapter that has been claimed under this section
to contain confidential information, and that the AEMC has
decided contains confidential information, may be
published if that information is omitted.
(3) If information is omitted from a published written
submission or comment given to the AEMC under this
Chapter as being confidential information, a note to that
effect must be included in the submission or comment at
the place in the submission or comment from which the
information is omitted.
Note--
See also section 71 of this Law and section 24 of the Australian
Energy Market Commission Establishment Act 2004 of South
Australia.
320. AEMC must publicly report on Rules not made within
12 months of public notification of requests
(1) This section applies if the AEMC--
(a) publishes a notice under section 303 in respect of a
request for the making of a Rule; but
(b) does not make a final Rule determination in
respect of that request within 12 months after the
publication of that notice (the report trigger date).
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s. 320
(2) The AEMC must prepare a report on the request as soon as
practicable after the report trigger date.
(3) A report prepared under this section--
(a) must contain the reasons why the final Rule
determination has not been made within
12 months after the publication of the notice under
section 303; and
(b) must specify when the AEMC considers it will
make the final Rule determination; and
(c) must be published.
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Provisions relating to applicable access arrangements Part 1
s. 321
Chapter 10 -- General
Part 1 -- Provisions relating to applicable access arrangements
321. Protection of certain pre-existing contractual rights
(1) An applicable access arrangement must not have the effect
of depriving a person of a relevant protected contractual
right.
(2) In this section--
relevant exclusivity right means an express contractual
right that arose on or after 30 March 1995 that--
(a) prevents a service provider supplying pipeline
services to persons who are not parties to the
contract; or
(b) limits or controls a service provider's ability to
supply pipeline services to persons who are not
parties to the contract,
but does not include a user's contractual right to obtain a
certain amount of pipeline services;
relevant protected contractual right means--
(a) in the case of an applicable access arrangement
approved under an applicable arrangement
decision--a right under a contract (other than a
relevant exclusivity right) in force immediately
before that access arrangement was submitted for
approval under this Law;
(b) in the case of an applicable access arrangement
made under an applicable arrangement decision
because--
(i) a full access arrangement was not
submitted for approval as required under
section 132--a right under a contract
(other than a relevant exclusivity right) in
force immediately before the date on
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which an access arrangement was
required to be submitted for approval;
(ii) an access arrangement was not approved
under an applicable arrangement
decision--a right under a contract (other
than a relevant exclusivity right) in force
immediately before the date on which that
access arrangement was submitted for
approval.
322. Service provider may enter into agreement for access
different from applicable access arrangement
Subject to section 135, nothing in this Law is to be taken as
preventing a service provider from entering into an
agreement with a user or a prospective user about access to
a pipeline service provided by means of a scheme pipeline
that is different from an applicable access arrangement that
applies to that pipeline service.
323. Applicable access arrangements continue to apply
regardless of who provides pipeline service
An applicable access arrangement applies to a pipeline
service provided, or to be provided, by means of a pipeline
regardless of who provides that pipeline service.
Part 2 -- Handling of confidential information
Division 1 -- Disclosure of confidential information held by AER
324. Authorised disclosure of information given to the AER in
confidence
The AER is authorised to disclose information given to it
in confidence in, or in connection with, the performance or
exercise of its functions or powers under this Law or the
Rules subject to and in accordance with--
(a) this Division; or
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(b) section 205.
Note--
See also section 30 of this Law and section 44AAF of the Trade
Practices Act 1974 of the Commonwealth.
325. Disclosure with prior written consent is authorised
The AER is authorised to disclose information given to it
in confidence if the AER has the written consent to do so
of--
(a) the person who gave the information; or
(b) the person from whom the person referred to in
paragraph (a) received that information.
326. Disclosure for purposes of court and tribunal proceedings
and to accord natural justice
The AER is authorised to disclose information given to it
in confidence--
(a) for the purposes of civil or criminal proceedings;
or
(b) for the purposes of a proceeding before the
Tribunal or a tribunal established by or under a
law of this jurisdiction or another participating
jurisdiction; or
(c) for the purposes of according natural justice to a
person affected by a decision (however described)
of the AER under this Law or the Rules.
327. Disclosure of information given to the AER with
confidential information omitted
(1) This section applies if--
(a) in compliance with this Law or the Rules or
voluntarily, a person gives the AER information in
confidence; and
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(b) that information is contained in a document with
other information.
(2) The AER may disclose the document with the information
given in confidence omitted.
(3) The AER must include a note at the place in the document
from which the information given in confidence is omitted
to the effect that that information has been omitted from
the document.
328. Disclosure of information given in confidence does not
identify anyone
The AER is authorised to disclose information given to it
in confidence, in compliance with this Law or the Rules or
voluntarily, if--
(a) it does not disclose any elements of the
information that could lead to the identification of
the person to whom that information relates; or
(b) the manner in which it discloses the information
does not identify the person to whom that
information relates.
Example--
Information disclosed under this section may be combined or
arranged with other information provided that the manner in which
that information is combined or arranged will not lead to the
identification of the person to whom the information relates.
329. Disclosure of confidential information authorised if
detriment does not outweigh public benefit
(1) Despite section 327 or 328 but subject to this section, the
AER is authorised to disclose information given to it in
confidence after the restricted period if the AER is of the
opinion--
(a) that the disclosure of the information would not
cause detriment to the person who has given it or
to the person from whom that person received it;
or
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(b) that, although the disclosure of the information
would cause detriment to such a person, the public
benefit in disclosing it outweighs that detriment.
(2) Before disclosing the information, the AER must give the
person who gave the information--
(a) a written notice (an initial disclosure notice)
stating--
(i) that the AER wishes to disclose the
information, specifying the nature of the
intended disclosure; and
(ii) that the AER is of the opinion required by
subsection (1); and
(iii) that the person, within the period
specified in the notice, may make
representations to the AER not to disclose
the information; and
(b) the AER's decision, in writing, setting out the
reasons why the AER--
(i) wishes to make the disclosure; and
(ii) is of the opinion required by
subsection (1).
(3) If the AER is aware that the person who gave the
information in turn received the information from another
person and is aware of that other person's identity and
address, the AER must, before disclosing the information
give that other person--
(a) a written notice (an initial disclosure notice)
stating--
(i) that the AER wishes to disclose the
information, specifying the nature of the
intended disclosure; and
(ii) that the AER is of the opinion required by
subsection (1); and
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(iii) that the person, within the period
specified in the notice, may make
representations to the AER not to disclose
the information; and
(b) the AER's decision, in writing, setting out the
reasons why the AER--
(i) wishes to make the disclosure; and
(ii) is of the opinion required by
subsection (1).
(4) The AER must consider every representation made to it by
a person given an initial disclosure notice under this
section within the time specified in the notice.
(5) The period of time specified in an initial disclosure notice
must not be less than 5 business days after the date the
initial disclosure notice is given to the person.
(6) If after considering the representations, the AER wishes to
disclose the information, the AER must give the person
given the initial disclosure notice--
(a) a written notice (a further disclosure notice)
stating--
(i) that the AER wishes to disclose the
information, specifying the nature of the
intended disclosure; and
(ii) that the AER is of the opinion required by
subsection (1); and
(b) the AER's decision, in writing, setting out the
reasons why the AER--
(i) wishes to make the disclosure; and
(ii) is of the opinion required by
subsection (1).
(7) For the purposes of this section, the disclosure of anything
that is already in the public domain at the time the AER
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wishes to disclose it cannot cause detriment to any person
referred to in subsection (2) or (3).
(8) In this section--
restricted period means a period of 5 business days after--
(a) an initial disclosure notice has been given under
this section; or
(b) a further disclosure notice has been given under
this section,
whichever is the later.
Division 2 -- Disclosure of confidential information held by relevant
Ministers, NCC and AEMC
330. Definitions
In this Division--
relevant decision maker means--
(a) a relevant Minister;
(b) the Commonwealth Minister in the case of
decisions relating to applications for price
regulation exemptions;
(c) the NCC;
(d) the AEMC;
scheme decision means--
(a) in relation to a relevant Minister or the
Commonwealth Minister, a Ministerial coverage
decision;
(b) in relation to the NCC, an NCC recommendation
or decision;
(c) in relation to the AEMC, a report published under
Division 4 or Division 5 of Chapter 2 Part 2;
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scheme procedure means--
(a) in the case of a relevant Minister or the
Commonwealth Minister, the procedure to be
followed by the relevant Minister or
Commonwealth Minister under this Law for the
purpose of making a Ministerial coverage
decision;
(b) in the case of the NCC, the procedure to be
followed by the NCC under this Law and the
Rules for the purpose of making an NCC
recommendation or decision;
(c) in the case of the AEMC, an MCE directed review
or a review conducted by the AEMC under
section 83.
331. Confidentiality of information received for scheme
procedure purpose and for making of scheme decision
(1) Information provided to a relevant decision maker for the
purposes of a scheme procedure is confidential information
for the purposes of that procedure if--
(a) the person who provides it claims, when providing
it to the relevant decision maker, that it is
confidential information; and
(b) the relevant decision maker decides that the
information is confidential information.
(2) However, subject to this section, nothing prevents the
disclosure of confidential information by the relevant
decision maker (the principal decision maker) in a scheme
decision or to another relevant decision maker or the MCE,
but the principal decision maker must ensure that the
information is identified as such--
(a) in the scheme decision; or
(b) when the principal decision maker discloses that
information to another relevant decision maker or
MCE.
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(3) In the case of where the AEMC publishes a report under
Division 4 or Division 5 of Chapter 2 Part 2, nothing
prevents the disclosure of confidential information in a
report to the MCE or a Minister of a participating
jurisdiction, but the AEMC must ensure that the
information is identified as such in the report.
(4) If the AEMC decides that information provided to it for the
purposes of a MCE directed review or a review conducted
by the AEMC under section 83, is confidential information,
the AEMC, the MCE or a Minister of a participating
jurisdiction may only publish a version of the report from
which the information has been omitted.
(5) If the NCC decides that information provided to it for the
purposes of an NCC recommendation or decision is
confidential information, the NCC and the relevant
Minister may only publish a version of (as the case
requires) an NCC recommendation or decision or
Ministerial coverage decision from which the information
has been omitted.
(6) If information is omitted from a published version of a
scheme decision as being confidential information, a note
to that effect must be included in the decision at the place
in the decision from which the information is omitted.
Note--
In relation to the AEMC, see section 71 of this Law and section 24
of the Australian Energy Market Commission Establishment
Act 2004 of South Australia.
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Part 3 -- Miscellaneous
332. Failure to make a decision under this Law or the Rules
within time does not invalidate the decision
(1) A decision (however described) made under this Law or
the Rules by a regulatory scheme decision maker after the
expiry of the period of time specified by this Law or Rules
for the making of that decision is not to be taken to be an
invalid decision only because the decision is not made
within the specified period of time.
(2) A decision to which subsection (1) applies takes effect on
and from--
(a) the day it is made; or
(b) if it specifies a date for operation or effect that is
after the day it is made, that specified date.
(3) In this section--
regulatory scheme decision maker means--
(a) a relevant Minister;
(b) the Commonwealth Minister in the case of
decisions relating to price regulation exemptions;
(c) the NCC;
(d) the AER;
(e) the AEMC;
(f) the Bulletin Board operator.
333. Withdrawal of applications relating to coverage or
reclassification
(1) A person who has made an application for a Ministerial or
NCC scheme decision may withdraw the application at any
time before the Ministerial or NCC scheme decision is
made.
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(2) A withdrawal of an application in accordance with this
section must be--
(a) in writing; and
(b) given to, as the case requires, the relevant
Minister, Commonwealth Minister or the NCC.
(3) In this section--
Ministerial or NCC scheme decision means--
(a) a decision of a relevant Minister under section 99,
106 or 156; or
(b) a decision of the Commonwealth Minister under
section 164; or
(c) a reclassification decision; or
(d) a decision of the NCC relating to the making or
revoking of a light regulation determination under
Chapter 3 Part 2.
334. Notification of Ministers of participating jurisdictions of
receipt of application
If the NCC receives an application for a coverage
determination, a 15-year no-coverage determination, a
coverage revocation determination or a reclassification
decision, it must, without delay, notify the Ministers of the
participating jurisdictions of receipt of the application.
335. Relevant Minister may request NCC to give information or
assistance
(1) A relevant Minister may request the NCC, in writing, to
give to him or her information or assistance that the
Minister may require for the purpose of making--
(a) a coverage determination; or
(b) a 15-year no-coverage determination; or
(c) a coverage revocation determination.
(2) The NCC must comply with a request.
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Part 3 Miscellaneous
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336. Savings and transitionals
Schedule 3 to this Law has effect.
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Subject matter for the National Gas Rules Schedule 1
Schedule 1 -- Subject matter for the National
Gas Rules
Section 74
Classification and coverage of pipelines
1 The content of applications for coverage determinations, coverage revocation
determinations and 15-year no-coverage determinations.
2 The content of coverage recommendations, coverage revocation
recommendations and no-coverage recommendations.
3 The content of decisions about coverage determinations, coverage revocation
determinations and 15-year no-coverage determinations.
4 The classification of pipelines by the NCC--
(a) after a tender approval decision becomes irrevocable; or
(b) during the process the approval of a voluntarily submitted access
arrangement.
5 The content of applications for the reclassification of pipelines and
reclassification decisions.
Price regulation exemptions
6 The content of applications for price regulation exemptions.
7 The content of recommendations by the NCC in relation to price regulation
exemptions.
8 The content of decisions about price regulation exemptions.
ight regulation determinations
9 The content of applications for light regulation determinations or the
revocation of light regulation determinations.
10 The content of decisions about light regulation determinations or the
revocation of light regulation determinations.
11 The matters to be addressed by the NCC in making decisions about light
regulation determinations or the revocation of light regulation determinations.
Tender approvals for the construction of pipelines
12 Applications for and the approval by the AER of a tender for the construction
of a pipeline (by means of which pipeline services are intended to be
provided) as a competitive tender process.
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13 The content of tender approval decisions.
14 The procedure for the making and the publication of a tender approval
decision.
15 Reports on the conduct of tender processes approved under tender approval
decisions.
16 The lapsing or revocation of tender approval decisions.
Access to pipeline services
17 Access to pipeline services provided or that may be provided by means of a
scheme pipeline.
18 The facilitation of requests for access to pipeline services provided by means
of a scheme pipeline.
19 The transfer of capacity of a pipeline to deliver pipeline services, including--
(a) the circumstances when and how it is to happen; and
(b) the legal consequences of a transfer of that capacity.
20 The establishment and maintenance of registers of unutilised capacity of
pipelines to deliver pipeline services, including the information to be
included in such registers.
21 The public availability of information on registers referred to in item 20.
22 The provision of information to users of information about unutilised
capacity of pipelines to deliver pipeline services.
23 The disclosure to the AER of information relating to access to light
regulation services.
24 Reports on negotiations relating to access to light regulation services.
25 The publication of prices and other terms and conditions of access to light
regulation services.
26 The conditions a service provider may impose for the provision of pipeline
services.
Access arrangements
27 The submission to the AER, by service providers, of access arrangements or
revisions to applicable access arrangements for approval by the AER
including requiring service providers to--
(a) submit full access arrangements for pipeline services (that are not
light regulation services) provided by means of covered pipelines;
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(b) submit limited access arrangements for pipeline services provided
by means of international pipelines to which price regulation
exemptions apply;
(c) submit more than 1 access arrangement;
(d) to consolidate access arrangements.
28 The content of access arrangements and applicable access arrangements
including--
(a) a description of pipeline services provided or that may be provided
by means of scheme pipelines, including reference services;
(b) the content of expansion and extension requirements;
(c) the content of queuing requirements;
(d) review submission dates, expiry dates and dates when revisions to
access arrangements and applicable access arrangements are to take
effect.
29 Variations to applicable access arrangements.
30 Information to accompany access arrangements submitted for approval, or
proposals for revisions or variations to access arrangements, including
information to enable a person to understand the background or basis or
derivation of the access arrangement or proposal.
31 The provision and publication of information referred to in item 30.
32 Decisions of the AER that approve (with or without revisions or
modifications) or not approve access arrangements or proposals for revisions
or variations to access arrangements.
33 The making of access arrangements by the AER when it does not approve
access arrangements.
34 The contents of decisions of the AER that--
(a) approve or do not approve access arrangements or proposals for
revisions or variations to access arrangements;
(b) make access arrangements.
35 The procedure for the approval or making by the AER of access
arrangements, or approval by the AER of proposals for revisions or variations
to applicable access arrangements, including the publication and giving of--
(a) access arrangements and proposals;
(b) decisions of the AER;
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(c) applicable access arrangements;
(d) drafts of decisions of access arrangements and proposals and
decisions of the AER.
36 Matters to be addressed by the AER in approving or not approving an access
arrangement, or making an access arrangement, or approving or not
approving revisions or variations to an applicable access arrangement.
Access disputes
37 The procedure and time limits for the making of access determinations.
38 The appointment of persons to inquire into and report on the safe operation of
pipelines for the purpose of enabling the dispute resolution body to make an
access determination.
39 The kinds of access determinations that may be made including
determinations--
(a) requiring prospective users or users to make capital contributions
towards a service provider's capital expenditure for the installation
or construction of new facilities for the expansion of the capacity of
pipelines;
(b) that enable service providers to charge prospective users or users
surcharges to recover capital expenditure for the installation or
construction of new facilities for the expansion of the capacity of
pipelines.
Regulatory economic methodologies
40 The regulatory economic methodologies (including the use of the
methodology known as the "building block approach") to be applied by--
(a) the AER in approving or making a full access arrangement;
(b) the AER in approving revisions or a variation to an applicable
access arrangement that is a full access arrangement;
(c) the dispute resolution body in making an access determination.
41 If the Rules provide for the regulatory economic methodology known as the
"building block approach" to be applied by--
(a) the AER for the purpose of approving or making a full access
arrangement; or
(b) the AER for the purpose of approving revisions or a variation to an
applicable access arrangement that is a full access arrangement; or
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(c) the dispute resolution body for the purpose of making an access
determination,
the determination by the AER or the dispute resolution body (as the case
requires) of allowances for--
(d) depreciation;
(e) the operating costs of a service provider;
(f) if the service provider is a corporation, the income tax payable by
corporations;
(g) a rate of return on assets.
42 The methodology known as "total factor productivity"--
(a) as a regulatory economic methodology to be applied by--
(i) the AER for the purpose of approving or making a full
access arrangement;
(ii) the AER for the purpose of approving revisions or a
variation to an applicable access arrangement that is a full
access arrangement;
(iii) the dispute resolution body for the purpose of making an
access determination;
(b) as an economic regulatory tool to inform and assist the AER in
applying, or analysing the application of, the regulatory economic
methodology known as the "building block approach" by the AER
for the purpose of--
(i) approving or making a full access arrangement; or
(ii) approving revisions or a variation to an applicable access
arrangement that is a full access arrangement;
(c) as an economic regulatory tool to inform and assist the dispute
resolution body in applying, or analysing the application of, the
regulatory economic methodology known as the "building block
approach" by the dispute resolution body for the purpose of making
an access determination.
43 The capital base with respect to a covered pipeline, and of a new facility for
the purposes of--
(a) approving or making a full access arrangement; or
(b) approving revisions or a variation to an applicable access
arrangement that is a full access arrangement; or
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(c) making an access determination.
44 The assessment, or treatment of, investment in covered pipelines and new
facilities by--
(a) the AER for the purposes of approving or making a full access
arrangement;
(b) the AER for the purposes of approving revisions or a variation to an
applicable access arrangement that is a full access arrangement;
(c) the dispute resolution body for the purposes of making an access
determination.
45 The economic framework and methodologies to be applied by the AER or the
dispute resolution body for the purposes of item 44.
46 Incentives for service providers to make efficient operating and investment
decisions including, where applicable, service performance incentive
schemes.
47 The treatment of capital contributions referred to in item 39(a) when
determining the capital base with respect to a covered pipeline.
48 The handling of surcharges referred to in item 39(b).
AER economic regulatory function or powers
49 The way in which the AER performs or exercises an AER economic
regulatory function or power, including the basis on which the AER makes an
AER economic regulatory decision.
50 Principles to be applied, and procedures to be followed, by the AER in
exercising or performing an AER economic regulatory function or power.
Ring fencing requirements
51 The content of a minimum ring fencing requirement.
52 AER ring fencing determinations and additional ring fencing requirements.
53 Exemptions from a minimum ring fencing requirement.
Associate contracts
54 The approval by the AER of associate contracts and variations to associate
contracts.
55 The grounds on which the AER may approve associate contracts and
variations to associate contracts, including grounds different from those
specified in section 147 or section 148.
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Natural Gas Services Bulletin Board
56 The establishment and maintenance of a website that contains information in
relation to natural gas services.
57 Principles to be applied, and procedures to be followed, by the Bulletin Board
operator in exercising a power or performing a function in relation to the
Natural Gas Services Bulletin Board.
58 The kinds of information that may or must be given to the Bulletin Board
operator, the circumstances in which the information may or must be given,
and the procedure for giving the information.
59 The kinds of information that may or must be included on the Natural Gas
Services Bulletin Board and the manner in which information is to be dealt
with before being put on the Natural Gas Services Bulletin Board, including,
but not limited to, the removal of information that would identify the person
who gave the information.
60 Persons, or classes of persons, to whom the requirement to give information
does not apply and the circumstances in which the requirement does not
apply, including, but not limited to, the grant of power to the Bulletin Board
operator to exempt persons, or classes of persons, from that requirement.
61 The circumstances in which the requirement to give information may start to
apply again to the persons, or classes of persons, mentioned in item 60.
62 Persons, or classes of persons, who may access the Natural Gas Services
Bulletin Board and the class, or classes, of information to which they may
have access.
63 The terms and conditions on which the persons, or classes of persons,
mentioned in item 62 may access the Natural Gas Services Bulletin Board.
64 The procedure for dealing with information that was, but is no longer, on the
Natural Gas Services Bulletin Board.
65 Persons, or classes of persons, who may have access to information that was,
but is no longer on the Natural Gas Services Bulletin Board and the class, or
classes, of information to which they may have access.
66 The terms and conditions on which the persons, or classes of persons,
mentioned in item 65 may have access to information that was, but is no
longer on the Natural Gas Services Bulletin Board.
67 The terms and conditions on which service providers, or classes of service
providers, may recover amounts from the Bulletin Board operator for
aggregating Bulletin Board information for the Bulletin Board operator.
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68 Matters mentioned in items 56 to 67, in so far as they relate to emergency
situations.
Miscellaneous
69 Specification of pipeline services as reference services.
70 The preparation (including public consultation) and publication by the AER
of discussion papers relating to the AER's functions and powers under this
Law and the Rules.
71 Reviews by or on behalf of--
(a) the AER or the AEMC; or
(b) any other person appointed, in accordance with the Rules.
72 Reporting and disclosing information to the AER.
73 Procedure to be followed by the NCC or a relevant Minister in dealing with
an application for--
(a) a coverage determination;
(b) a coverage revocation determination;
(c) a 15-year no-coverage determination;
(d) a price regulation exemption;
(e) a reclassification decision;
(f) a light regulation determination;
(g) a determination to revoke a light regulation determination.
74 The publication and the giving of NCC recommendations or decisions or
Ministerial coverage decisions.
75 The establishment and maintenance of a register by the AEMC of all
previous and current--
(a) coverage determinations; and
(b) coverage revocation determinations; and
(c) greenfields pipeline incentives; and
(d) decisions under section 99 not to make a coverage determination;
and
(e) decisions under section 106 not to make a coverage revocation
determination; and
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(f) decisions under section 156 not to make a 15-year no-coverage
determination; and
(g) decisions under section 1.13 of the Gas Code that a pipeline is not
covered under the old access law and Gas Code; and
(h) decisions under section 1.34 of the Gas Code that coverage of a
covered pipeline under the old access law and Gas Code is not
revoked; and
(i) tender approval decisions; and
(j) light regulation determinations; and
(k) decisions revoking light regulation determinations; and
(l) covered pipelines, including their description and classification as
transmission pipelines or distribution pipelines; and
(m) covered pipelines by means of which light regulation services are
or intended to be provided; and
(n) international pipelines; and
(o) applicable access arrangements.
76 The inclusion on the register referred to in item 75 of descriptions of--
(a) all old scheme transmission pipelines and old scheme distribution
pipelines; and
(b) all old scheme classifications or determinations.
77 Time periods within which--
(a) the NCC must make an NCC recommendation or decision;
(b) the AER must make a decision (including an AER economic
regulatory decision).
78 Extensions to periods of time referred to in item 77.
79 Reports into failures to make decisions within a specified period of time and
the publication of such reports.
80 Confidential information held by service providers, users, prospective users,
end users, the AER, the AEMC, the NCC, the Bulletin Board operator and
other persons or bodies conferred a function, or exercising a power or right,
or on whom an obligation is imposed, under the Rules, and the manner and
circumstances in which that information may be disclosed.
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81 The modification of section 3, 8 or 10.8 of the Gas Code as those sections
apply to a transitioned access arrangement (as defined in clause 1 of
Schedule 3 to this Law).
Note--
See also clause 30 of Schedule 3 to this Law.
82 Any other matter or thing that is the subject of, or is of a kind dealt with by, a
provision of the Gas Code as in operation and effect immediately before the
commencement of section 30 of the National Gas Access (WA) Act 2009 of
Western Australia.
83 Any matter or thing relating to gas prescribed by the Regulations.
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Miscellaneous provisions relating to interpretation Schedule 2
Preliminary Part 1
cl. 1
Schedule 2 -- Miscellaneous provisions relating
to interpretation
Section 20
Part 1 -- Preliminary
1. Displacement of Schedule by contrary intention
(1) The application of this Schedule to this Law, the
Regulations or other statutory instrument (other than the
National Gas Rules) may be displaced, wholly or partly, by
a contrary intention appearing in this Law or the
Regulations or that statutory instrument.
(2) The application of this Schedule to the National Gas Rules
(other than clauses 7, 12, 15, 17, 19 and 20, 23 to 26 and
31 to 44, 49, 52 and 53 of this Schedule) may be displaced,
wholly or partly, by a contrary intention appearing in the
National Gas Rules.
Part 2 -- General
2. Law to be construed not to exceed legislative power of
Legislature
(1) This Law is to be construed as operating to the full extent
of, but so as not to exceed, the legislative power of the
Legislature of this jurisdiction.
(2) If a provision of this Law, or the application of a provision
of this Law to a person, subject matter or circumstance,
would, but for this clause, be construed as being in excess
of the legislative power of the Legislature of this
jurisdiction--
(a) it is a valid provision to the extent to which it is
not in excess of the power; and
(b) the remainder of this Law, and the application of
the provision to other persons, subject matters or
circumstances, is not affected.
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(3) Without limiting subclause (2), this Law is not to be
construed as imposing any duty on the Commonwealth
Minister, the NCC, the Australian Competition Tribunal or
AER to perform a function or exercise a power if the
imposition of the duty would be in excess of the legislative
power of the Legislature of this jurisdiction.
Note--
The term function is defined in clause 10 to include
"duty".
(4) In particular, if a provision of this Law appears to impose a
duty on the Commonwealth Minister, the NCC, the
Australian Competition Tribunal or AER to perform a
function or exercise a power in matters or circumstances in
which the assumption of the duty cannot be validly
authorised under the law of the Commonwealth, or is
otherwise ineffective, the provision is to be construed as if
its operation were expressly confined to--
(a) acts or omissions of corporations to which
section 51(xx) of the Constitution of the
Commonwealth applies; or
(b) acts or omissions taking place in the course of, or
in relation to, trade or commerce between this
jurisdiction and places outside this jurisdiction
(whether within or outside Australia); or
(c) acts or omissions taking place outside Australia, or
in relation to things outside Australia.
(5) This clause does not limit the effect that a provision of this
Law would validly have apart from this clause.
3. Vacant provision
Note--
There is no clause 3.
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General Part 2
cl. 4
4. Material that is, and is not, part of Law
(1) The heading to a Chapter, Part, Division or Subdivision
into which this Law is divided is part of this Law.
(2) A Schedule to this Law is part of this Law.
(3) A heading to a section or subsection of this Law does not
form part of this Law.
(4) A note at the foot of a provision of this Law does not form
part of this Law.
(5) An example (being an example at the foot of a provision of
this Law under the heading "Example" or "Examples")
does not form part of this Law.
5. References to particular Acts and to enactments
In this Law--
(a) an Act of this jurisdiction may be cited--
(i) by its short title; or
(ii) in another way sufficient in an Act of this
jurisdiction for the citation of such an
Act; and
(b) a Commonwealth Act may be cited--
(i) by its short title; or
(ii) in another way sufficient in a
Commonwealth Act for the citation of
such an Act,
together with a reference to the Commonwealth;
and
(c) an Act of another jurisdiction may be cited--
(i) by its short title; or
(ii) in another way sufficient in an Act of the
jurisdiction for the citation of such an Act,
together with a reference to the jurisdiction.
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6. References taken to be included in Act or Law citation etc
(1) A reference in this Law to an Act includes a reference to--
(a) the Act as originally enacted, and as amended
from time to time since its original enactment; and
(b) if the Act has been repealed and re-enacted (with
or without modification) since the enactment of
the reference, the Act as re-enacted, and as
amended from time to time since its re-enactment.
(2) A reference in this Law to a provision of this Law or of an
Act includes a reference to--
(a) the provision as originally enacted, and as
amended from time to time since its original
enactment; and
(b) if the provision has been omitted and re-enacted
(with or without modification) since the enactment
of the reference, the provision as re-enacted, and
as amended from time to time since its
re-enactment.
(3) Subclauses (1) and (2) apply to a reference in this Law to a
law of the Commonwealth or another jurisdiction as they
apply to a reference in this Law to an Act and to a
provision of an Act.
7. Interpretation best achieving Law's purpose
(1) In the interpretation of a provision of this Law, the
interpretation that will best achieve the purpose or object of
this Law is to be preferred to any other interpretation.
(2) Subclause (1) applies whether or not the purpose is
expressly stated in this Law.
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General Part 2
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8. Use of extrinsic material in interpretation
(1) In this clause--
Law extrinsic material means relevant material not
forming part of this Law, including, for example--
(a) material that is set out in the document containing
the text of this Law as printed by authority of the
Government Printer of South Australia; and
(b) a relevant report of a committee of the Legislative
Council or House of Assembly of South Australia
that was made to the Legislative Council or House
of Assembly of South Australia before the
provision was enacted; and
(c) an explanatory note or memorandum relating to
the Bill that contained the provision, or any
relevant document, that was laid before, or given
to the members of, the Legislative Council or
House of Assembly of South Australia by the
member bringing in the Bill before the provision
was enacted; and
(d) the speech made to the Legislative Council or
House of Assembly of South Australia by the
member in moving a motion that the Bill be read a
second time; and
(e) material in the Votes and Proceedings of the
Legislative Council or House of Assembly of
South Australia or in any official record of debates
in the Legislative Council or House of Assembly
of South Australia; and
(f) a document that is declared by the Regulations to
be a relevant document for the purposes of this
clause;
ordinary meaning means the ordinary meaning conveyed
by a provision having regard to its context in this Law and
to the purpose of this Law;
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Rule extrinsic material means--
(a) a draft Rule determination; or
(b) a final Rule determination; or
(c) any document (however described)--
(i) relied on by the AEMC in making a draft
Rule determination or final Rule
determination; or
(ii) adopted by the AEMC in making a draft
Rule determination or final Rule
determination.
(2) Subject to subclause (3), in the interpretation of a provision
of this Law, consideration may be given to Law extrinsic
material capable of assisting in the interpretation--
(a) if the provision is ambiguous or obscure, to
provide an interpretation of it; or
(b) if the ordinary meaning of the provision leads to a
result that is manifestly absurd or is unreasonable,
to provide an interpretation that avoids such a
result; or
(c) in any other case, to confirm the interpretation
conveyed by the ordinary meaning of the
provision.
(3) Subject to subclause (4), in the interpretation of a provision
of the Rules, consideration may be given to Law extrinsic
material or Rule extrinsic material capable of assisting in
the interpretation--
(a) if the provision is ambiguous or obscure, to
provide an interpretation of it; or
(b) if the ordinary meaning of the provision leads to a
result that is manifestly absurd or is unreasonable,
to provide an interpretation that avoids such a
result; or
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Terms and references Part 3
cl. 9
(c) in any other case, to confirm the interpretation
conveyed by the ordinary meaning of the
provision.
(4) In determining whether consideration should be given to
Law extrinsic material or Rule extrinsic material, and in
determining the weight to be given to Law extrinsic
material or Rule extrinsic material, regard is to be had to--
(a) the desirability of a provision being interpreted as
having its ordinary meaning; and
(b) the undesirability of prolonging proceedings
without compensating advantage; and
(c) other relevant matters.
9. Compliance with forms
(1) If a form is prescribed or approved by or for the purpose of
this Law, strict compliance with the form is not necessary
and substantial compliance is sufficient.
(2) If a form prescribed or approved by or for the purpose of
this Law requires--
(a) the form to be completed in a specified way; or
(b) specified information or documents to be included
in, attached to or given with the form; or
(c) the form, or information or documents included in,
attached to or given with the form, to be verified
in a specified way,
the form is not properly completed unless the requirement
is complied with.
Part 3 -- Terms and references
10. Definitions
In this Law--
Act means an Act of the Legislature of this jurisdiction;
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affidavit, in relation to a person allowed by law to affirm,
declare or promise, includes affirmation, declaration and
promise;
amend includes--
(a) omit or omit and substitute; or
(b) alter or vary; or
(c) amend by implication;
appoint includes re-appoint;
breach includes fail to comply with;
business day means a day that is not--
(a) a Saturday or Sunday;
(b) observed as a public holiday on the same day in
each of the participating jurisdictions (except the
Commonwealth);
calendar month means a period starting at the beginning of
any day of 1 of the 12 named months and ending--
(a) immediately before the beginning of the
corresponding day of the next named month; or
(b) if there is no such corresponding day, at the end of
the next named month;
calendar year means a period of 12 months beginning on
1 January;
commencement, in relation to this Law or an Act or a
provision of this Law or an Act, means the time at which
this Law, the Act or provision comes into operation;
confer, in relation to a function, includes impose;
contravene includes fail to comply with;
definition means a provision of this Law (however
expressed) that--
(a) gives a meaning to a word or expression; or
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(b) limits or extends the meaning of a word or
expression;
document includes--
(a) any paper or other material on which there is
writing; or
(b) any paper or other material on which there are
marks, figures, symbols or perforations having a
meaning for a person qualified to interpret them;
or
(c) any disc, tape or other article or any material from
which sounds, images, writings or messages are
capable of being reproduced (with or without the
aid of another article or device);
estate includes easement, charge, right, title, claim,
demand, lien or encumbrance, whether at law or in equity;
expire includes lapse or otherwise cease to have effect;
fail includes refuse;
financial year means a period of 12 months beginning on
1 July;
function includes duty;
Gazette means the Government Gazette of this jurisdiction;
instrument includes a statutory instrument;
interest, in relation to land or other property, means--
(a) a legal or equitable estate in the land or other
property; or
(b) a right, power or privilege over, or in relation to,
the land or other property;
make includes issue or grant;
minor means an individual who is under 18 years of age;
modification includes addition, omission or substitution;
month means a calendar month;
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named month means 1 of the 12 months of the year;
number means--
(a) a number expressed in figures or words; or
(b) a letter; or
(c) a combination of a number so expressed and a
letter;
oath, in relation to a person allowed by law to affirm,
declare or promise, includes affirmation, declaration or
promise;
office includes position;
omit, in relation to a provision of this Law or an Act,
includes repeal;
party includes a body politic or body corporate as well as
an individual;
penalty includes a civil penalty, forfeiture or punishment;
person includes a body politic or body corporate as well as
an individual;
power includes authority;
prescribed means prescribed by the Regulations;
printed includes typewritten, lithographed or reproduced
by any mechanical means;
proceeding means a legal or other action or proceeding;
property means any legal or equitable estate or interest
(whether present or future, vested or contingent, or tangible
or intangible) in real or personal property of any
description (including money), and includes things in
action;
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Terms and references Part 3
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provision, in relation to this Law or an Act, means words
or other matter that form or forms part of this Law or the
Act, and includes--
(a) a Part, Division, Subdivision, section, subsection,
paragraph, subparagraph, subsubparagraph or
Schedule of or to this Law or the Act; or
(b) a section, clause, subclause, item, column, table or
form of or in a Schedule to this Law or the Act; or
(c) the long title and any preamble to the Act;
record includes information stored or recorded by means of
a computer;
repeal includes--
(a) revoke or rescind; or
(b) repeal by implication; or
(c) abrogate or limit the effect of the law or
instrument concerned; or
(d) exclude from, or include in, the application of the
law or instrument concerned, any person, subject
matter or circumstance;
sign includes the affixing of a seal or the making of a
mark;
statutory declaration means a declaration made under an
Act, or under a Commonwealth Act or an Act of another
jurisdiction, that authorises a declaration to be made
otherwise than in the course of a judicial proceeding;
statutory instrument means the Regulations or an
instrument made or in force under this Law;
swear, in relation to a person allowed by law to affirm,
declare or promise, includes affirm, declare or promise;
word includes any symbol, figure or drawing;
writing includes any mode of representing or reproducing
words in a visible form.
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Schedule 2 Miscellaneous provisions relating to interpretation
Part 3 Terms and references
cl. 11
11. Provisions relating to defined terms and gender and number
(1) If this Law defines a word or expression, other parts of
speech and grammatical forms of the word or expression
have corresponding meanings.
(2) Definitions in or applicable to this Law apply except so far
as the context or subject matter otherwise indicates or
requires.
(3) In this Law, words indicating a gender include each other
gender.
(4) In this Law--
(a) words in the singular include the plural; and
(b) words in the plural include the singular.
12. Meaning of may and must etc
(1) In this Law, the word "may", or a similar word or
expression, used in relation to a power indicates that the
power may be exercised or not exercised, at discretion.
(2) In this Law, the word "must", or a similar word or
expression, used in relation to a power indicates that the
power is required to be exercised.
(3) This clause has effect despite any rule of construction to
the contrary.
13. Words and expressions used in statutory instruments
(1) Words and expressions used in a statutory instrument have
the same meanings as they have, from time to time, in this
Law, or relevant provisions of this Law, under or for the
purposes of which the instrument is made or in force.
(2) This clause has effect in relation to an instrument except so
far as the contrary intention appears in the instrument.
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Terms and references Part 3
cl. 14
14. References to Minister
(1) In this Law--
(a) a reference to a Minister is a reference to a
Minister of the Crown of this jurisdiction; and
(b) a reference to a particular Minister by title, or to
"the Minister" without specifying a particular
Minister by title, includes a reference to another
Minister, or a member of the Executive Council of
this jurisdiction, who is acting for and on behalf of
the Minister.
(2) In a provision of this Law, a reference to "the Minister",
without specifying a particular Minister by title is a
reference to--
(a) the Minister of this jurisdiction administering the
provision; or
(b) if, for the time being, different Ministers of this
jurisdiction administer the provision in relation to
different matters--
(i) if only 1 Minister of this jurisdiction
administers the provision in relation to the
relevant matter, the Minister; or
(ii) if 2 or more Ministers of this jurisdiction
administer the provision in relation to the
relevant matter, any 1 of those Ministers;
or
(c) if paragraph (b) does not apply and, for the time
being, 2 or more Ministers administer the
provision, any 1 of the Ministers.
(3) For the removal of doubt, it is declared that if--
(a) a provision of this Law is administered by 2 or
more Ministers of this jurisdiction; and
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(b) the provision requires or permits anything to be
done in relation to any of the Ministers,
the provision does not require or permit it to be done in a
particular case by or in relation to more than 1 of the
Ministers.
15. Production of records kept in computers etc
If a person who keeps a record of information by means of
a mechanical, electronic or other device is required by or
under this Law--
(a) to produce the information or a document
containing the information to a court, tribunal or
person; or
(b) to make a document containing the information
available for inspection by a court, tribunal or
person,
then, unless the court, tribunal or person otherwise
directs--
(c) the requirement obliges the person to produce or
make available for inspection, as the case may be,
a document that reproduces the information in a
form capable of being understood by the court,
tribunal or person; and
(d) the production to the court, tribunal or person of
the document in that form complies with the
requirement.
16. References to this jurisdiction to be implied
In this Law--
(a) a reference to an officer, office or statutory body is
a reference to such an officer, office or statutory
body in and for this jurisdiction; and
(b) a reference to a locality or other matter or thing is
a reference to such a locality or other matter or
thing in and of this jurisdiction.
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17. References to officers and holders of offices
In this Law, a reference to a particular officer, or to the
holder of a particular office, includes a reference to the
person for the time being occupying or acting in the office
concerned.
18. Reference to certain provisions of Law
If a provision of this Law refers--
(a) to a Chapter, Part, section or Schedule by a
number and without reference to this Law, the
reference is a reference to the Chapter, Part,
section or Schedule, designated by the number, of
or to this Law; or
(b) to a Schedule without reference to it by a number
and without reference to this Law, the reference, if
there is only 1 Schedule to this Law, is a reference
to the Schedule; or
(c) to a Division, Subdivision, subsection, paragraph,
subparagraph, subsubparagraph, clause, subclause,
item, column, table or form by a number and
without reference to this Law, the reference is a
reference to--
(i) the Division, designated by the number,
of the Part in which the reference occurs;
and
(ii) the Subdivision, designated by the
number, of the Division in which the
reference occurs; and
(iii) the subsection, designated by the number,
of the section in which the reference
occurs; and
(iv) the paragraph, designated by the number,
of the section, subsection, Schedule or
other provision in which the reference
occurs; and
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(v) the paragraph, designated by the number,
of the clause, subclause, item, column,
table or form of or in the Schedule in
which the reference occurs; and
(vi) the subparagraph, designated by the
number, of the paragraph in which the
reference occurs; and
(vii) the subsubparagraph, designated by the
number, of the subparagraph in which the
reference occurs; and
(viii) the section, clause, subclause, item,
column, table or form, designated by the
number, of or in the Schedule in which
the reference occurs,
as the case requires.
Part 4 -- Functions and powers
19. Performance of statutory functions
(1) If this Law confers a function or power on a person or
body, the function may be performed, or the power may be
exercised, from time to time as occasion requires.
(2) If this Law confers a function or power on a particular
officer or the holder of a particular office, the function may
be performed, or the power may be exercised, by the
person for the time being occupying or acting in the office
concerned.
(3) If this Law confers a function or power on a body (whether
or not incorporated), the performance of the function, or
the exercise of the power, is not affected merely because of
vacancies in the membership of the body.
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20. Power to make instrument or decision includes power to
amend or repeal
If this Law authorises or requires the making of an
instrument, decision or determination--
(a) the power includes power to amend or repeal the
instrument, decision or determination; and
(b) the power to amend or repeal the instrument,
decision or determination is exercisable in the
same way, and subject to the same conditions, as
the power to make the instrument, decision or
determination.
21. Matters for which statutory instruments may make
provision
(1) If this Law authorises or requires the making of a statutory
instrument in relation to a matter, a statutory instrument
made under this Law may make provision for the matter by
applying, adopting or incorporating (with or without
modification) the provisions of--
(a) an Act or statutory instrument; or
(b) another document (whether of the same or a
different kind),
as in force at a particular time or as in force from time to
time.
(2) If a statutory instrument applies, adopts or incorporates the
provisions of a document, the statutory instrument applies,
adopts or incorporates the provisions as in force from time
to time, unless the statutory instrument otherwise expressly
provides.
(3) A statutory instrument may--
(a) be of general or limited application;
(b) vary according to the persons, times, places or
circumstances to which it is expressed to apply.
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(4) A statutory instrument may authorise a matter or thing to
be from time to time determined, applied or regulated by a
specified person or body.
(5) If this Law authorises or requires a matter to be regulated
by statutory instrument, the power may be exercised by
prohibiting by statutory instrument the matter or any aspect
of the matter.
(6) If this Law authorises or requires provision to be made
with respect to a matter by statutory instrument, a statutory
instrument made under this Law may make provision with
respect to a particular aspect of the matter despite the fact
that provision is made by this Law in relation to another
aspect of the matter or in relation to another matter.
(7) A statutory instrument may provide for the review of, or a
right of appeal against, a decision made under the statutory
instrument, or this Law, and may, for that purpose, confer
jurisdiction on any court, tribunal, person or body.
(8) A statutory instrument may require a form prescribed by or
under the statutory instrument, or information or
documents included in, attached to or given with the form,
to be verified by statutory declaration.
(9) In this clause--
statutory instrument does not include the National Gas
Rules.
22. Presumption of validity and power to make
(1) All conditions and preliminary steps required for the
making of a statutory instrument are presumed to have
been satisfied and performed in the absence of evidence to
the contrary.
(2) A statutory instrument is taken to be made under all powers
under which it may be made, even though it purports to be
made under this Law or a particular provision of this Law.
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23. Appointments may be made by name or office
(1) If this Law authorises or requires a person or body--
(a) to appoint a person to an office; or
(b) to appoint a person or body to exercise a power; or
(c) to appoint a person or body to do another thing,
the person or body may make the appointment by--
(d) appointing a person or body by name; or
(e) appointing a particular officer, or the holder of a
particular office, by reference to the title of the
office concerned.
(2) An appointment of a particular officer, or the holder of a
particular office, is taken to be the appointment of the
person for the time being occupying or acting in the office
concerned.
24. Acting appointments
(1) If this Law authorises a person or body to appoint a person
to act in an office, the person or body may, in accordance
with this Law, appoint--
(a) a person by name; or
(b) a particular officer, or the holder of a particular
office, by reference to the title of the office
concerned,
to act in the office.
(2) The appointment may be expressed to have effect only in
the circumstances specified in the instrument of
appointment.
(3) The appointer may--
(a) determine the terms and conditions of the
appointment, including remuneration and
allowances; and
(b) terminate the appointment at any time.
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(4) The appointment, or the termination of the appointment,
must be in, or evidenced by, writing signed by the
appointer.
(5) The appointee must not act for more than 1 year during a
vacancy in the office.
(6) If the appointee is acting in the office otherwise than
because of a vacancy in the office and the office becomes
vacant, then, subject to subclause (2), the appointee may
continue to act until--
(a) the appointer otherwise directs; or
(b) the vacancy is filled; or
(c) the end of a year from the day of the vacancy,
whichever happens first.
(7) The appointment ceases to have effect if the appointee
resigns by writing signed and delivered to the appointer.
(8) While the appointee is acting in the office--
(a) the appointee has all the powers and functions of
the holder of the office; and
(b) this Law and other laws apply to the appointee as
if the appointee were the holder of the office.
(9) Anything done by or in relation to a person purporting to
act in the office is not invalid merely because--
(a) the occasion for the appointment had not arisen; or
(b) the appointment had ceased to have effect; or
(c) the occasion for the person to act had not arisen or
had ceased.
(10) If this Law authorises the appointer to appoint a person to
act during a vacancy in the office, an appointment to act in
the office may be made by the appointer whether or not an
appointment has previously been made to the office.
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25. Powers of appointment imply certain incidental powers
(1) If this Law authorises or requires a person or body to
appoint a person to an office--
(a) the power may be exercised from time to time as
occasion requires; and
(b) the power includes--
(i) power to remove or suspend, at any time,
a person appointed to the office; and
(ii) power to appoint another person to act in
the office if a person appointed to the
office is removed or suspended; and
(iii) power to reinstate or reappoint a person
removed or suspended; and
(iv) power to appoint a person to act in the
office if it is vacant (whether or not the
office has ever been filled); and
(v) power to appoint a person to act in the
office if the person appointed to the office
is absent or is unable to discharge the
functions of the office (whether because
of illness or otherwise).
(2) The power to remove or suspend a person under
subclause (1)(b) may be exercised even if this Law
provides that the holder of the office to which the person
was appointed is to hold office for a specified period.
(3) The power to make an appointment under subclause (1)(b)
may be exercised from time to time as occasion requires.
(4) An appointment under subclause (1)(b) may be expressed
to have effect only in the circumstances specified in the
instrument of appointment.
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26. Delegation
(1) If this Law authorises a person to delegate a function or
power, the person may, in accordance with this Law,
delegate the power to--
(a) a person by name; or
(b) a particular officer, or the holder of a particular
office, by reference to the title of the office
concerned.
(2) The delegation--
(a) may be general or limited; and
(b) may be made from time to time; and
(c) may be revoked, wholly or partly, by the
delegator.
(3) The delegation, or a revocation of the delegation, must be
in, or evidenced by, writing signed by the delegator or if
the delegator is a body corporate, by a person authorised by
the body corporate for the purpose.
(4) A delegated function or power may be exercised only in
accordance with any conditions to which the delegation is
subject.
(5) The delegate may, in the exercise of a delegated function or
power, do anything that is incidental to the delegated
function or power.
(6) A delegated function or power that purports to have been
exercised by the delegate is taken to have been duly
exercised by the delegate unless the contrary is proved.
(7) A delegated function or power that is duly exercised by the
delegate is taken to have been exercised by the delegator.
(8) If, when exercised by the delegator, a function or power is,
under this Law, dependent on the delegator's opinion,
belief or state of mind in relation to a matter, the function
or power, when exercised by the delegate, is dependent on
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the delegate's opinion, belief or state of mind in relation to
the matter.
(9) If a function or power is delegated to a particular officer or
the holder of a particular office--
(a) the delegation does not cease to have effect merely
because the person who was the particular officer
or the holder of the particular office when the
power was delegated ceases to be the officer or the
holder of the office; and
(b) the function or power may be exercised by the
person for the time being occupying or acting in
the office concerned.
(10) A function or power that has been delegated may, despite
the delegation, be exercised by the delegator.
27. Exercise of powers between enactment and commencement
(1) If a provision of this Law (the empowering provision) that
does not commence on its enactment would, had it
commenced, confer a power--
(a) to make an appointment; or
(b) to make a statutory instrument of a legislative or
administrative character; or
(c) to do another thing,
then--
(d) the power may be exercised; and
(e) anything may be done for the purpose of enabling
the exercise of the power or of bringing the
appointment, instrument or other thing into effect,
before the empowering provision commences.
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(2) If a provision of an Act of South Australia (the
empowering provision) that does not commence on its
enactment would, had it commenced, amend a provision of
this Law so that it would confer a power--
(a) to make an appointment; or
(b) to make a statutory instrument of a legislative or
administrative character; or
(c) to do another thing,
then--
(d) the power may be exercised; and
(e) anything may be done for the purpose of enabling
the exercise of the power or of bringing the
appointment, instrument or other thing into effect,
before the empowering provision commences.
(3) If--
(a) this Law has commenced and confers a power to
make a statutory instrument (the basic instrument
making power); and
(b) a provision of an Act of South Australia that does
not commence on its enactment would, had it
commenced, amend this Law so as to confer
additional power to make a statutory instrument
(the additional instrument making power),
then--
(c) the basic instrument making power and the
additional instrument making power may be
exercised by making a single instrument; and
(d) any provision of the instrument that required an
exercise of the additional instrument making
power is to be treated as made under subclause (2).
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(4) If an instrument, or a provision of an instrument, is made
under subclause (1) or (2) that is necessary for the purpose
of--
(a) enabling the exercise of a power mentioned in the
subclause; or
(b) bringing an appointment, instrument or other thing
made or done under such a power into effect,
the instrument or provision takes effect--
(c) on the making of the instrument; or
(d) on such later day (if any) on which, or at such later
time (if any) at which, the instrument or provision
is expressed to take effect.
(5) If--
(a) an appointment is made under subclause (1) or (2);
or
(b) an instrument, or a provision of an instrument,
made under subclause (1) or (2) is not necessary
for a purpose mentioned in subclause (4),
the appointment, instrument or provision takes effect--
(c) on the commencement of the relevant empowering
provision; or
(d) on such later day (if any) on which, or at such later
time (if any) at which, the appointment, instrument
or provision is expressed to take effect.
(6) Anything done under subclause (1) or (2) does not confer a
right, or impose a liability, on a person before the relevant
empowering provision commences.
(7) After the enactment of a provision mentioned in
subclause (2) but before the provision's commencement,
this clause applies as if the references in subclauses (2) and
(5) to the commencement of the empowering provision
were references to the commencement of the provision
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mentioned in subclause (2) as amended by the empowering
provision.
(8) In the application of this clause to a statutory instrument, a
reference to the enactment of the instrument is a reference
to the making of the instrument.
27A. WA modifications of clause 27
Clause 27 applies to a conferral of power by this Law to
the extent that the power derives from an amendment to the
Schedule to the National Gas (South Australia) Act 2008 of
South Australia --
(a) as if references in clause 27(2), (5) and (6) to the
commencement of the empowering provision
referred to the time when the Western Australian
National Gas Access Law text, as defined in
section 7(2) of the National Gas Access (WA) Act
2009, is affected by the amendment; and
(b) as if the reference in clause 27(3) to additional
power that would be conferred had an Act of
South Australia commenced referred to additional
power that would be conferred had the Western
Australian National Gas Access Law text been
already affected by the amendment; and
(c) as if clause 27(7) had been omitted.
Part 5 -- Distance and time
28. Matters relating to distance and time
(1) In the measurement of distance for the purposes of this
Law, the distance is to be measured along the shortest road
ordinarily used for travelling.
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(2) If a period beginning on a given day, act or event is
provided or allowed for a purpose by this Law, the period
is to be calculated by excluding the day, or the day of the
act or event, and--
(a) if the period is expressed to be a specified number
of clear days or at least a specified number of
days, by excluding the day on which the purpose is
to be fulfilled; and
(b) in any other case, by including the day on which
the purpose is to be fulfilled.
(3) If the last day of a period provided or allowed by this Law
for doing anything is not a business day in the place in
which the thing is to be or may be done, the thing may be
done on the next business day in the place.
(4) If the last day of a period provided or allowed by this Law
for the filing or registration of a document is a day on
which the office is closed where the filing or registration is
to be or may be done, the document may be filed or
registered at the office on the next day that the office is
open.
(5) If no time is provided or allowed for doing anything, the
thing is to be done as soon as possible, and as often as the
prescribed occasion happens.
(6) If, in this Law, there is a reference to time, the reference is,
in relation to the doing of anything in a jurisdiction, a
reference to the legal time in the jurisdiction.
Part 6 -- Service of documents
29. Service of documents and meaning of service by post etc
(1) If this Law requires or permits a document to be served on
a person (whether the expression "deliver", "give",
"notify", "send" or "serve" or another expression is used),
the document may be served--
(a) on a natural person--
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(i) by delivering it to the person personally;
or
(ii) by leaving it at, or by sending it by post,
facsimile or similar facility to the last
known address of the place of residence
or usual place of business of the person;
or
(iii) by sending it electronically to that person;
or
(b) on a body corporate--
(i) by leaving it at the registered office or
usual place of business of the body
corporate with an officer of the body
corporate; or
(ii) by sending it by post, facsimile or similar
facility to its registered office or its usual
place of business; or
(iii) by sending it electronically to that body
corporate or an officer of the body
corporate.
(2) Nothing in subclause (1)--
(a) affects the operation of another law that authorises
the service of a document otherwise than as
provided in the subclause; or
(b) affects the power of a court or tribunal to authorise
service of a document otherwise than as provided
in the subclause.
30. Meaning of service by post etc
(1) If this Law requires or permits a document to be served by
post (whether the expression "deliver", "give", "notify",
"send" or "serve" or another expression is used), service--
(a) may be effected by properly addressing, prepaying
and posting the document as a letter; and
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(b) is taken to have been effected at the time at which
the letter would be delivered in the ordinary course
of post, unless the contrary is proved.
(2) If this Law requires or permits a document to be served by
a particular postal method (whether the expression
"deliver", "give", "notify", "send" or "serve" or another
expression is used), the requirement or permission is taken
to be satisfied if the document is posted by that method or,
if that method is not available, by the equivalent, or nearest
equivalent, method provided for the time being by
Australia Post.
Part 7 -- Evidentiary matters
Division 1 -- Publication on websites
31. Definitions
In this Division--
decision maker means a relevant Minister, the NCC, the
AER, the AEMC or the Bulletin Board operator;
relevant decision or document means--
(a) a decision (however described) or determination
(however described) of a decision maker under
this Law or the Rules; or
(b) an access arrangement to which a decision of the
AER under the Law or Rules relates;
relevant notice means a notice under the Rules calling for
or inviting submissions or comments in relation to a
relevant decision or document;
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32. Publication of decisions on websites
(1) For the purposes of this Law, a relevant decision or
document or relevant notice that is required by this Law or
the Rules to be published on a website is to be taken to be
published on the website if--
(a) the relevant decision or document or relevant
notice is made accessible in full on the website; or
(b) notice of the making or publication of the relevant
decision or document or relevant notice is made
accessible on that website and the relevant
decision or document or relevant notice is made
accessible separately in full on that website or in
any other identified location.
(2) The date on which the relevant decision or document or
relevant notice is published on the website is the date
notified by the relevant decision maker on the website as
the date of the relevant decision's or document's or
relevant notice's publication (being not earlier than the date
on which it was first made so accessible).
Division 2 -- Evidentiary certificates
33. Definitions
In this Division--
acting SES employee has the same meaning as in
section 17AA of the Acts Interpretation Act 1901 of the
Commonwealth;
AEMC chief executive means the chief executive of the
AEMC appointed under section 16 of the Australian
Energy Market Commission Establishment Act 2004 of
South Australia;
AEMC Commissioner means a Commissioner within the
meaning of the Australian Energy Market Commission
Establishment Act 2004 of South Australia;
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AER member has the same meaning as in the Trade
Practices Act 1974 of the Commonwealth;
NCC member means a Councillor within the meaning of
the Trade Practices Act 1974 of the Commonwealth;
relevant notice has the same meaning as in clause 31;
SES employee has the same meaning as in section 17AA of
the Acts Interpretation Act 1901 of the Commonwealth.
34. Evidentiary certificates--AER
(1) In any proceedings under this Law, a certificate signed or
purported to be signed by an AER member, or an SES
employee or acting SES employee assisting the AER as
mentioned in section 44AAC of the Trade Practices
Act 1974 of the Commonwealth, stating any of the
following matters is evidence of the matter:
(a) a stated document is 1 of the following things,
made, given, served or issued under this Law or
the Rules:
(i) a decision (however described) or
determination (however described);
(ii) an authorisation under section 32;
(iii) a general regulatory information order;
(iv) a notice, notification, direction or
requirement;
(b) a stated document is a copy of a thing referred to
in paragraph (a);
(c) on a stated day, a person was or was not:
(i) given a decision (however described), or
determination (however described);
(ii) authorised as an authorised person (within
the meaning of section 31);
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(iii) served a notice under section 42 or a
regulatory information notice;
(iv) notified under section 52;
(v) notified under section 143(3) of the
making of an AER ring fencing
determination;
(d) on a stated day any of the following were
published on the AER's website:
(i) a decision (however described) or
determination (however described);
(ii) a general regulatory information order;
(iii) a full access arrangement or revisions to
an applicable access arrangement
submitted for approval under section 132;
(iv) a limited access arrangement or revisions
to an applicable access arrangement
submitted for approval under section 116
or 168;
(v) a relevant notice.
(2) When subclause (1) is read as if a reference in it to the
AER were a reference to the ERA, the subclause is to be
read as if "an AER member, or an SES employee or acting
SES employee assisting the AER as mentioned in
section 44AAC of the Trade Practices Act 1974 of the
Commonwealth" had been deleted and the following had
been inserted instead:
a member of the ERA
35. Evidentiary certificates--AEMC
In any proceedings under this Law, a certificate signed or
purported to be signed by a Commissioner or the AEMC
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chief executive, stating any of the following matters is
evidence of the matter:
(a) a stated document is a decision (however
described), made, given, served or issued under
this Law;
(b) a stated document is a copy of a thing referred to
in paragraph (a);
(c) on a stated day, a person was or was not given a
decision (however described);
(d) on a stated day a relevant notice was published on
the AEMC's website.
36. Evidentiary certificates--NCC
In any proceedings under this Law, a certificate signed or
purported to be signed by an NCC member, or an SES
employee or acting SES employee who is an employee
assisting the NCC as mentioned in section 29M of the
Trade Practices Act 1974 of the Commonwealth, stating
any of the following matters is evidence of the matter:
(a) a stated document is--
(i) an NCC recommendation or decision;
(ii) a decision of the NCC not to make a
coverage determination because of
section 96;
(b) on a stated day, a person was or was not given a
reclassification decision;
(c) on a stated day any 1 of the following was, in
accordance with the Rules, published on the
NCC's website:
(i) a Ministerial coverage decision;
(ii) an NCC recommendation or decision;
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(iii) a decision of the NCC not to make a
coverage determination because of
section 96;
(iv) a relevant notice.
37. Evidentiary certificates--relevant Minister and
Commonwealth Minister
In any proceedings under this Law, a certificate signed or
purported to be signed by a relevant Minister or the
Commonwealth Minister stating any of the following
matters is evidence of the matter:
(a) a stated document is a Ministerial coverage
decision; or
(b) on a stated day a person or the NCC was or was
not given a Ministerial coverage decision.
38. Evidentiary certificates--Bulletin Board operator
In any proceedings under this Law, a certificate signed or
purported to be signed by the chief executive officer of the
Bulletin Board operator, stating any of the following
matters is evidence of the matter:
(a) a stated document is a decision (however
described), made, given, served or issued under
this Law;
(b) a stated document is a copy of a thing referred to
in paragraph (a);
(c) on a stated day, a person was or was not given a
decision (however described);
(d) on a stated day a relevant notice was published on
the Bulletin Board operator's website.
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Part 8 -- Commencement of this Law and
statutory instruments
39. Time of commencement of this Law or a provision of this
Law
If a provision of an Act of South Australia provides that
this Law or a provision of this Law shall commence, or be
deemed to have commenced, on a particular day, it shall
commence, or be deemed to have commenced, at the
beginning of that day.
40. Time of commencement of a Rule
(1) If a Rule provides that the Rule shall commence on a
particular day, it shall commence at the beginning of that
day.
(2) If a provision of an Act of South Australia provides that a
Rule is deemed to have commenced on a particular day, the
Rule shall be deemed to have commenced at the beginning
of that day.
(3) If a notice published in the South Australian Government
Gazette under Chapter 9 Part 2 or section 314 provides that
a Rule shall commence on a particular day, the Rule shall
commence at the beginning of that day.
Part 9 -- Effect of repeal, amendment or expiration
41. Time of Law, the Regulations or Rules ceasing to have effect
If a provision of this Law, the Regulations or the Rules is
expressed--
(a) to expire on a specified day; or
(b) to remain or continue in force, or otherwise have
effect, until a specified day,
the provision has effect until the last moment of the
specified day.
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Part 9 Effect of repeal, amendment or expiration
cl. 42
42. Repealed Law, Regulation or Rule provisions not revived
(1) If a provision of this Law is repealed or amended by an Act
of South Australia or a provision of an Act of South
Australia, the provision is not revived merely because the
Act or the provision of the Act--
(a) is later repealed or amended; or
(b) later expires.
(2) If a provision of the Regulations or the Rules is repealed or
amended by a Regulation or a Rule, the provision is not
revived merely because the Regulation or Rule--
(a) is later repealed or amended; or
(b) later expires.
43. Saving of operation of repealed Law, Regulation or Rule
provisions
(1) The repeal, amendment or expiry of a provision of this
Law, the Regulations or the Rules does not--
(a) revive anything not in force or existing at the time
the repeal, amendment or expiry takes effect; or
(b) affect the previous operation of the provision or
anything suffered, done or begun under the
provision; or
(c) affect a right, privilege or liability acquired,
accrued or incurred under the provision; or
(d) affect a penalty incurred in relation to an offence
arising under the provision; or
(e) affect an investigation, proceeding or remedy in
relation to such a right, privilege, liability or
penalty.
(2) Any such penalty may be imposed and enforced, and any
such investigation, proceeding or remedy may be begun,
continued or enforced, as if the provision had not been
repealed or amended or had not expired.
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44. Continuance of repealed provisions
(1) If an Act of South Australia repeals some provisions of this
Law and enacts new provisions in substitution for the
repealed provisions, the repealed provisions continue in
force until the new provisions commence.
(2) If a Regulation or Rule repeals some provisions of the
Regulations or Rules and enacts new provisions in
substitution for the repealed provisions, the repealed
provisions continue in force until the new provisions
commence.
45. Law and amending Acts to be read as one
This Law and all Acts of this jurisdiction amending this
Law are to be read as one.
Part 10 -- Offences under this Law
46. Penalty at foot of provision
In this Law, a penalty specified at the foot of--
(a) a section (whether or not the section is divided
into subsections); or
(b) a subsection (but not at the end of a section); or
(c) a section or subsection and expressed in such a
way as to indicate that it applies only to part of the
section or subsection,
indicates that an offence mentioned in the section,
subsection or part is punishable on conviction or, if no
offence is mentioned, a contravention of the section,
subsection or part constitutes an offence against the
provision that is punishable, on conviction, by a penalty
not more than the specified penalty.
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Part 10 Offences under this Law
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47. Penalty other than at foot of provision
(1) In this Law, a penalty specified for an offence, or a
contravention of a provision, indicates that the offence is
punishable on conviction, or the contravention constitutes
an offence against the provision that is punishable, on
conviction, by a penalty not more than the specified
penalty.
(2) This clause does not apply to a penalty to which clause 36
applies.
48. Indictable offences and summary offences
(1) An offence against this Law that is not punishable by
imprisonment is punishable summarily.
(2) An offence against this Law that is punishable by
imprisonment is, subject to subclause (3), punishable on
indictment.
(3) If--
(a) a proceeding for an offence against this Law that
is punishable by imprisonment is instituted in a
court of summary jurisdiction; and
(b) the prosecutor requests the court to hear and
determine the proceeding,
the offence is punishable summarily and the court must
hear and determine the proceeding.
(4) A court of summary jurisdiction must not--
(a) impose, in relation to a single offence against this
Law, a period of imprisonment of more than
2 years; or
(b) impose, in relation to offences against the Law,
cumulative periods of imprisonment that are, in
total, more than 5 years.
(5) Nothing in this clause renders a person liable to be
punished more than once in relation to the same offence.
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49. Double jeopardy
(1) If an act or omission constitutes an offence--
(a) under this Law as applied as a law of this
jurisdiction; and
(b) under this Law as applied as a law of another
jurisdiction,
and the offender has been punished in relation to the
offence under the law mentioned in paragraph (b), the
offender is not liable to be punished in relation to the
offence mentioned in paragraph (a).
(2) If an act or omission constitutes--
(a) a breach of a civil penalty provision of this Law as
applied as a law of this jurisdiction; and
(b) a breach of a civil penalty provision of this Law as
applied as a law of another jurisdiction,
and the person in breach of the civil penalty provision
mentioned in paragraph (a) has been punished in relation to
the civil penalty provision mentioned in paragraph (b), the
person is not liable in relation to the breach of the civil
penalty provision mentioned in paragraph (a).
(3) The Court must not make a declaration that a person is in
breach of a provision of this Law, the Regulations or the
Rules that is not an offence provision if the person has
been convicted of an offence constituted by conduct that is
substantially the same as the conduct constituting the
breach.
(4) Proceedings for a declaration referred to in subclause (3)
are stayed if--
(a) criminal proceedings are commenced or have
already been commenced against the person for an
offence; and
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Part 11 Instruments under this Law
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(b) the offence is constituted by conduct that is
substantially the same as the conduct alleged to
constitute the breach.
(5) The proceedings for the declaration referred to in
subclause (3) may be resumed if the person is not
convicted of the offence. Otherwise, the proceedings for
the declaration must be dismissed.
50. Attempts and incitement
Section 555A(1) and (2) of The Criminal Code apply in
relation to a simple offence under this Law as if it were a
simple offence under The Criminal Code.
Part 11 -- Instruments under this Law
51. Schedule applies to statutory instruments
(1) This Schedule applies to a statutory instrument, and to
things that may be done or are required to be done under a
statutory instrument, in the same way as it applies to this
Law, and things that may be done or are required to be
done under this Law, except so far as the context or subject
matter otherwise indicates or requires.
(2) The fact that a provision of this Schedule refers to this Law
and not also to a statutory instrument does not, by itself,
indicate that the provision is intended to apply only to this
Law.
(3) In this clause--
statutory instrument includes the Regulations or the Rules.
52. National Gas Rules to be construed so as not to exceed the
legislative power of the Legislature of this jurisdiction or the
powers conferred by this Law
(1) The National Gas Rules are to be construed as operating to
the full extent of, but so as not to exceed, the legislative
power of the Legislature of this jurisdiction or the power
conferred by this Law under which they are made.
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Instruments under this Law Part 11
cl. 52
(2) If a provision of the National Gas Rules, or the application
of a provision of the National Gas Rules to a person,
subject matter or circumstance, would, but for this clause,
be construed as being in excess of the legislative power of
the Legislature of this jurisdiction or the power conferred
by this Law under which it is made--
(a) it is a valid provision to the extent to which it is
not in excess of that power; and
(b) the remainder of the National Gas Rules, and the
application of the provision to other persons,
subject matters, or circumstances, is not affected.
(3) Without limiting subclause (2), the National Gas Rules are
not to be construed as imposing any duty on the AER to
perform a function or exercise a power if the imposition of
the duty would be in excess of the legislative power of the
Legislature of this jurisdiction.
Note--
The term function is defined in clause 10 to include
"duty".
(4) In particular, if a provision of the National Gas Rules
appears to impose a duty on the AER to perform a function
or exercise a power in matters or circumstances in which
the assumption of the duty cannot be validly authorised
under a law of the Commonwealth, or is otherwise
ineffective, the provision is to be construed as if its
operation were expressly confined to--
(a) acts or omissions of corporations to which
section 51(xx) of the Constitution of the
Commonwealth applies; or
(b) acts or omissions taking place in the course of, or
in relation to, trade or commerce between this
jurisdiction and places outside this jurisdiction
(whether within or outside Australia); or
(c) acts or omissions taking place outside Australia, or
in relation to things outside Australia.
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Schedule 2 Miscellaneous provisions relating to interpretation
Part 11 Instruments under this Law
cl. 53
(5) This clause does not limit the effect that a provision of the
National Gas Rules would validly have apart from this
clause.
53. Invalid Rules
(1) If the Court orders (by declaration or otherwise) that a Rule
is invalid, the order of the Court does not--
(a) revive anything not in force or existing at the time
of the order of the Court; or
(b) affect the previous operation of the Rule or
anything suffered, done or begun under the Rule;
or
(c) affect a right, privilege or liability acquired,
accrued or incurred under the Rule; or
(d) affect a penalty arising because of a breach of the
Rule; or
(e) affect an investigation, proceeding or remedy in
relation to such a right, privilege, liability or
penalty.
(2) A penalty may be imposed and enforced, and any such
investigation, proceeding or remedy may be begun,
continued or enforced as if the Rule had not been ordered
by the Court as invalid.
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General Part 1
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Schedule 3 -- Savings and transitionals
Section 336
Part 1 -- General
1. Definitions
In this Schedule--
binding no-coverage determination has the same meaning
as in section 13A of the old access law;
commencement day means the day on which section 30 of
the National Gas Access (WA) Act 2009 comes into
operation;
current access arrangement means an Access
Arrangement as defined by section 10.8 of the Gas Code
and in effect immediately before the commencement day;
new application Act means the National Gas (South
Australia) Act 2008 of South Australia;
old scheme coverage application means an application
under section 1.3 of the Gas Code in respect of which a
determination under section 1.13 of the Gas Code has not
been made before the commencement day;
old scheme coverage revocation application means an
application under section 1.25 of the Gas Code in respect
of which an old scheme coverage revocation determination
has not been made before the commencement day;
old scheme coverage determination means a determination
of an old scheme relevant Minister under section 1.13 of
the Gas Code--
(a) that a pipeline is covered; and
(b) that is in effect immediately before the
commencement day;
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Part 1 General
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old scheme coverage revocation determination means a
determination of an old scheme relevant Minister under
section 1.34 of the Gas Code;
old scheme covered pipeline means a covered pipeline
within the meaning of section 10.8 of the Gas Code;
old scheme limited access arrangement means a limited
access arrangement (within the meaning of section 13A of
the old access law)--
(a) approved under section 13U of that law; and
(b) in effect immediately before the commencement
day;
old scheme price regulation exemption means a price
regulation exemption within the meaning of section 13A of
the old access law;
old scheme relevant Minister means a relevant Minister
within the meaning of section 2 of the old access law;
pending old scheme coverage determination means a
determination of an old scheme relevant Minister under
section 1.13 of the Gas Code that a pipeline is covered
that--
(a) has not taken effect before the commencement
day; but
(b) is intended to take effect on or after that day;
pending old scheme no-coverage determination means a
determination of an old scheme relevant Minister under
section 1.13 of the Gas Code that a pipeline is not covered
that--
(a) has not taken effect before the commencement
day; but
(b) is intended to take effect on or after that day;
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pending old scheme coverage non-revocation
determination means a determination of an old scheme
relevant Minister under section 1.34 of the Gas Code that
coverage of a covered pipeline not be revoked that--
(a) has not taken effect before the commencement
day; but
(b) is intended to take effect on or after that day;
pending old scheme coverage revocation determination
means a determination of an old scheme relevant Minister
under section 1.34 of the Gas Code that coverage of a
covered pipeline be revoked that--
(a) has not taken effect before the commencement
day; but
(b) is intended to take effect on or after that day;
relevant appeals body has the same meaning as in section 2
of the old access law;
transitioned access arrangement means--
(a) a current access arrangement; or
(b) an access arrangement approved, or drafted and
approved, in accordance with clause 28; or
(c) a current access arrangement incorporating
revisions approved, or approved and made, in
accordance with clause 29.
Note--
The Regulations or the Rules may also contain provisions of an
application, savings or transitional nature.
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Schedule 3 Savings and transitionals
Part 2 General savings provision
cl. 2
2. Schedule subject to jurisdictional transitional arrangements
in jurisdictional legislation
(1) This Schedule, and any Regulations or Rules of a savings
and transitional nature, apply in this jurisdiction except to
the extent provided by or under an Act of this jurisdiction
(including an Act that applies this Law and the Regulations
as a law of this jurisdiction).
(2) In this clause--
Regulations or Rules of a savings and transitional nature
means Regulations or Rules that deal with matters of a
savings or transitional nature relating to the transition from
the application of provisions of the old access law and Gas
Code to the application of provisions of this Law and the
Rules.
Part 2 -- General savings provision
3. Saving of operation of old access law and Gas Code
(1) Subject to this Schedule, the Regulations and the Rules, the
repeal of the old access law or Gas Code does not--
(a) revive anything not in force or existing at the time
the repeal takes effect; or
(b) affect the previous operation of the old access law
or Gas Code or anything suffered, done or begun
under or in accordance with the old access law or
Gas Code; or
(c) affect a right, privilege or liability acquired,
accrued or incurred under the old access law or
Gas Code; or
(d) affect a penalty incurred in relation to--
(i) an offence arising under the old access
law; or
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(ii) a penalty incurred in relation to a breach
of a provision of the old access law or
Gas Code; or
(e) affect an investigation, proceeding or remedy in
relation to such a right, privilege, liability or
penalty.
(2) Subject to this Schedule, the Regulations and the Rules,
any such penalty may be imposed and enforced, and any
such investigation, proceeding or remedy may be begun,
continued or enforced, as if the old access law or Gas Code
had not been repealed.
Part 3 -- Classification and coverage of pipelines
4. Pending applications for the classification of pipelines lapse
On the commencement day, every application under
section 10 of the old access law in respect of which a
decision has not been made under section 10 or 11 of that
law immediately before that day, lapses.
5. Old scheme coverage determinations
On the commencement day, an old scheme coverage
determination is deemed to be a coverage determination.
6. Old scheme covered transmission pipelines
On the commencement day, an old scheme covered
pipeline that is a transmission pipeline (within the meaning
of section 2 of the old access law) is deemed to be a
covered pipeline that is a transmission pipeline.
7. Old scheme covered distribution pipelines
On the commencement day, an old scheme covered
pipeline that is a distribution pipeline (within the meaning
of section 2 of the old access law) is deemed to be a
covered pipeline that is a distribution pipeline.
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8. Pending coverage applications under old scheme (before
NCC recommendation)
(1) This clause applies if--
(a) there is an old scheme coverage application; and
(b) the NCC has not made a recommendation in
respect of that application under section 1.9 of the
Gas Code before the commencement day.
(2) On and after the commencement day, the NCC must,
despite the repeal of the Gas Code, continue to take action
in relation to the application as required under the Gas
Code (including making a recommendation under
section 1.7 of the Gas Code and submitting it to the
relevant old scheme relevant Minister under that section) as
if the old access law and Gas Code continued to apply.
9. Pending relevant Minister decisions in relation to coverage
under old scheme
(1) This clause applies if--
(a) an old scheme relevant Minister has received a
recommendation of the NCC under section 1.7 of
the Gas Code before the commencement day but
the old scheme relevant Minister has not made a
determination under section 1.13 of the Gas Code
in relation to that recommendation before that day;
or
(b) an old scheme relevant Minister receives a
recommendation of the NCC as provided for under
clause 8 on or after the commencement day.
(2) On and after the commencement day, the old scheme
relevant Minister must, despite the repeal of the old access
law and Gas Code, make a determination under
section 1.13 of the Gas Code in relation to that
recommendation as if the old access law and Gas Code
continued to apply.
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(3) A determination made in accordance with subclause (2) is
deemed to be, on the relevant transition date--
(a) if the determination is that the pipeline is
covered--a coverage determination;
(b) if the determination is that the pipeline is not
covered--a decision not to make a coverage
determination under section 99.
(4) In this clause--
relevant transition date means, if an application is not
made under section 38 of the old access law for a review of
the determination within the time specified by that
section--the day after the last day an application could
have been made under that section.
10. Pending relevant Minister decisions in relation to coverage
that are reviewed under old scheme
(1) This clause applies if--
(a) an old scheme relevant Minister makes a
determination under section 1.13 of the Gas Code
in accordance with clause 9; and
(b) an application is made under section 38 of the old
access law for a review of the determination of the
old scheme relevant Minister.
(2) If on the review the relevant appeals body refuses to review
the determination in accordance with section 38(11) of the
old access law, the determination of the old scheme
relevant Minister is deemed to be, on the day the
determination of the relevant appeals body takes effect--
(a) if the determination is that the pipeline is
covered--a coverage determination;
(b) if the determination is that the pipeline is not
covered--a decision not to make a coverage
determination under section 99.
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(3) If on the review the relevant appeals body makes a
determination under section 38 of the old access law
affirming or varying the determination of the old scheme
relevant Minister, that determination (as affirmed or
varied) is deemed to be, on the day the order of the relevant
appeals body affirming or varying that determination takes
effect--
(a) if the effect of that determination is that the
pipeline is covered--a coverage determination;
(b) if the effect of that determination is that the
pipeline is not covered--a decision not to make a
coverage determination under section 99.
(4) If on the review the relevant appeals body makes a
determination under section 38 of the old access law that
sets aside the determination of the old scheme relevant
Minister and remits the matter to the old scheme relevant
Minister for the Minister to make a determination again in
respect of the matter, the Minister must make a
determination under clause 9.
(5) If on the review the relevant appeals body makes a
determination under section 38 of the old access law that
sets aside the determination of the old scheme relevant
Minister and that is to operate in place of the determination
of the old scheme relevant Minister, the determination of
the relevant appeals body is deemed to be, on the day that
determination takes effect--
(a) if that determination is that the pipeline is
covered--a coverage determination;
(b) if that determination is that the pipeline is not
covered--a decision not to make a coverage
determination under section 99.
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11. Pending old scheme coverage determinations where no
applications for review under old scheme
(1) This clause applies if--
(a) there is a pending old scheme coverage
determination; and
(b) an application has not been made under section 38
of the old access law for a review of the
determination within the time provided for under
that section (whether or not that time expires on or
after the commencement day).
(2) The pending old scheme coverage determination is deemed
to be a coverage determination on the day after the last day
an application could have been made under section 38 of
the old access law.
12. Pending old scheme coverage determinations where
applications for review under old scheme on foot
(1) This clause applies if--
(a) there is a pending old scheme coverage
determination; and
(b) an application has been made under section 38 of
the old access law for a review of the
determination before the commencement day.
(2) If on the review the relevant appeals body refuses to review
the determination in accordance with section 38(11) of the
old access law, the pending old scheme coverage
determination is deemed to be a coverage determination on
the day on which the determination of the relevant appeals
body takes effect.
(3) If on the review the relevant appeals body makes a
determination affirming or varying the pending old scheme
coverage determination, that determination (as affirmed or
varied) is deemed to be a coverage determination on the
day on which the order of the relevant appeals body
affirming or varying that determination takes effect.
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(4) If on the review the relevant appeals body makes a
determination that sets aside the pending old scheme
coverage determination and remits the matter to the old
scheme relevant Minister for the Minister to make a
determination again in respect of the matter, the old
scheme relevant Minister must make a determination under
section 1.13 of the Gas Code as if the Gas Code continued
to apply.
(5) If on the review the relevant appeals body makes a
determination that sets aside the pending old scheme
coverage determination and that is to operate in place of
the pending old scheme coverage determination, the
determination of the relevant appeals body is deemed to be,
on the day that determination takes effect--
(a) if that determination is that the pipeline is
covered--a coverage determination;
(b) if that determination is that the pipeline is not
covered--a decision not to make a coverage
determination under section 99.
13. Pending old scheme no-coverage determinations where no
applications for review under old scheme
(1) This clause applies if--
(a) there is a pending old scheme no-coverage
determination; and
(b) an application has not been made under section 38
of the old access law for a review of the
determination within the time provided for under
that section (whether or not that time expires on or
after the commencement day).
(2) The pending old scheme no-coverage determination is
deemed to be a decision not to make a coverage
determination under section 93 on the day after the last day
an application could have been made under section 38 of
the old access law.
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cl. 14
14. Pending old scheme no-coverage determinations where
applications for review under old scheme on foot
(1) This clause applies if--
(a) there is a pending old scheme no-coverage
determination; and
(b) an application has been made under section 38 of
the old access law for a review of the
determination before the commencement day.
(2) If on the review the relevant appeals body refuses to review
the determination in accordance with section 38(11) of the
old access law, the pending old scheme no-coverage
determination is deemed to be a decision not to make a
coverage determination under section 99 on the day on
which the determination of the relevant appeals body takes
effect.
(3) If on the review the relevant appeals body makes a
determination affirming or varying the pending old scheme
no-coverage determination, that determination (as affirmed
or varied) is deemed to be a decision not to make a
coverage determination under section 99 on the day on
which the order of the relevant appeals body affirming or
varying that determination takes effect.
(4) If on the review the relevant appeals body makes a
determination that sets aside the pending old scheme
no-coverage determination and remits the matter to the old
scheme relevant Minister for the Minister to make a
determination again in respect of the matter, the old
scheme relevant Minister must make a determination under
section 1.13 of the Gas Code as if the Gas Code continued
to apply.
(5) If on the review the relevant appeals body makes a
determination that sets aside the pending old scheme
coverage determination and that is to operate in place of
the pending old scheme coverage determination, the
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determination of the relevant appeals body is deemed to be,
on the day that determination takes effect--
(a) if that determination is that the pipeline is
covered--a coverage determination;
(b) if that determination is that the pipeline is not
covered--a decision not to make a coverage
determination under section 99.
15. Pending coverage revocation applications under old scheme
(before NCC recommendation)
(1) This clause applies if--
(a) there is an old scheme coverage revocation
application; and
(b) the NCC has not made a recommendation in
respect of that application under section 1.28 of
the Gas Code before the commencement day.
(2) On and after the commencement day, the NCC must,
despite the repeal of the Gas Code, continue to take action
in relation to the application as required under the Gas
Code (including making a recommendation under
section 1.29 of the Gas Code and submitting it to the
relevant old scheme relevant Minister under that section) as
if the old access law and Gas Code continued to apply.
16. Pending relevant Minister decisions in relation to coverage
revocation under old scheme
(1) This clause applies if--
(a) an old scheme relevant Minister has received a
recommendation of the NCC under section 1.29 of
the Gas Code before the commencement day but
the old scheme relevant Minister has not made a
determination under section 1.34 of the Gas Code
in relation to that recommendation before that day;
or
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(b) an old scheme relevant Minister receives a
recommendation of the NCC as provided for under
clause 15 after the commencement day.
(2) On and after the commencement day, the old scheme
relevant Minister must, despite the repeal of the old access
law or Gas Code, make a determination under section 1.34
of the Gas Code in relation to that recommendation as if
the old access law and Gas Code continued to apply.
(3) A determination made in accordance with subclause (2) is
deemed to be, on the relevant transition date--
(a) if the determination is that coverage of the covered
pipeline is revoked--a coverage revocation
determination;
(b) if the determination is that coverage of the covered
pipeline is not revoked--a decision not to make a
coverage revocation determination under
section 106.
(4) In this clause--
relevant transition date means, if an application is not
made under section 38 of the old access law for a review of
the determination within the time specified by that
section--the day after the last day an application could
have been made under that section.
17. Pending relevant Minister decisions in relation to coverage
revocation that are reviewed under old scheme
(1) This clause applies if--
(a) an old scheme relevant Minister makes a
determination under section 1.34 of the Gas Code
in accordance with clause 16; and
(b) an application is made under section 38 of the old
access law for a review of the determination of the
old scheme relevant Minister.
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(2) If on the review the relevant appeals body refuses to review
the determination in accordance with section 38(11) of the
old access law, the determination of the old scheme
relevant Minister is deemed to be, on the day the
determination of the relevant appeals body takes effect--
(a) if the determination is that coverage of the covered
pipeline is revoked--a coverage revocation
determination;
(b) if the determination is that coverage of the covered
pipeline is not revoked--a decision not to make a
coverage revocation determination under
section 106.
(3) If on the review the relevant appeals body makes a
determination under section 38 of the old access law
affirming or varying the determination of the old scheme
relevant Minister, that determination (as affirmed or
varied) is deemed to be, on the day the order of the relevant
appeals body affirming or varying that determination takes
effect--
(a) if the effect of that determination is that coverage
of the covered pipeline is revoked--a coverage
revocation determination;
(b) if the effect of that determination is that coverage
of the covered pipeline is not revoked--a decision
not to make a coverage revocation determination
under section 106.
(4) If on the review the relevant appeals body makes a
determination under section 38 of the old access law that
sets aside the determination of the old scheme relevant
Minister and remits the matter to the old scheme relevant
Minister for the Minister to make a determination again in
respect of the matter, the Minister must make a
determination under clause 16.
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(5) If on the review the relevant appeals body makes a
determination under section 38 of the old access law that
sets aside the determination of the old scheme relevant
Minister and that is to operate in place of the determination
of the old scheme relevant Minister, the determination of
the relevant appeals body is deemed to be, on the day that
determination takes effect--
(a) if that determination is that coverage of the
covered pipeline is revoked--a coverage
revocation determination;
(b) if that determination is that coverage of the
covered pipeline is not revoked--a decision not to
make a coverage revocation determination under
section 106.
18. Pending old scheme coverage revocation determinations
where no applications for review under old scheme
(1) This clause applies if--
(a) there is a pending old scheme coverage revocation
determination; and
(b) an application has not been made under section 38
of the old access law for a review of the
determination within the time provided for under
that section (whether or not that time expires on or
after the commencement day).
(2) The pending old scheme coverage revocation
determination is deemed to be coverage revocation
determination on the day after the last day an application
could have been made under section 38 of the old access
law.
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Part 3 Classification and coverage of pipelines
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19. Pending old scheme coverage revocation determinations
where applications for review under old scheme on foot
(1) This clause applies if--
(a) there is a pending old scheme coverage revocation
determination; and
(b) an application has been made under section 38 of
the old access law for a review of the
determination before the commencement day.
(2) If on the review the relevant appeals body refuses to review
the determination in accordance with section 38(11) of the
old access law, the pending old scheme coverage
revocation determination is deemed to be a coverage
revocation determination on the day on which the
determination of the relevant appeals body takes effect.
(3) If on the review the relevant appeals body makes a
determination affirming or varying the pending old scheme
coverage revocation determination, that determination (as
affirmed or varied) is deemed to be a coverage revocation
determination on the day on which the order of the relevant
appeals body affirming or varying that determination takes
effect.
(4) If on the review the relevant appeals body makes a
determination that sets aside the pending old scheme
coverage revocation determination and remits the matter to
the old scheme relevant Minister for the Minister to make a
determination again in respect of the matter, the old
scheme relevant Minister must make a determination under
section 1.34 of the Gas Code as if the Gas Code continued
to apply.
(5) If on the review the relevant appeals body makes a
determination that sets aside the pending old scheme
revocation coverage determination and that is to operate in
place of the pending old scheme revocation coverage
determination, the determination of the relevant appeals
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body is deemed to be, on the day that determination takes
effect--
(a) if that determination is that coverage of the
covered pipeline is revoked--a coverage
revocation determination;
(b) if that determination is that coverage of the
covered pipeline is not revoked--a decision not to
make a coverage revocation determination under
section 106.
20. Pending old scheme coverage non-revocation determinations
where no applications for review under old scheme
(1) This clause applies if--
(a) there is a pending old scheme coverage
non-revocation determination; and
(b) an application has not been made under section 38
of the old access law for a review of the
determination within the time provided for under
that section (whether or not that time expires on or
after the commencement day).
(2) The pending old scheme coverage non-revocation
determination is deemed to be a decision not to make a
coverage revocation determination under section 106 on
the day after the last day an application could have been
made under section 38 of the old access law.
21. Pending old scheme coverage non-revocation determinations
where applications for review under old scheme on foot
(1) This clause applies if--
(a) there is a pending old scheme coverage
non-revocation determination; and
(b) an application has been made under section 38 of
the old access law for a review of the
determination before the commencement day.
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(2) If on the review the relevant appeals body refuses to review
the determination in accordance with section 38(11) of the
old access law, the pending old scheme coverage
non-revocation determination is deemed to be a decision
not to make a coverage revocation determination under
section 106 on the day on which the determination of the
relevant appeals body takes effect.
(3) If on the review the relevant appeals body makes a
determination affirming or varying the pending old scheme
coverage non-revocation determination, that determination
(as affirmed or varied) is deemed to be a decision not to
make a coverage revocation determination under
section 106 on the day on which the order of the relevant
appeals body affirming or varying that determination takes
effect.
(4) If on the review the relevant appeals body makes a
determination that sets aside the pending old scheme
coverage non-revocation determination and remits the
matter to the old scheme relevant Minister for the Minister
to make a determination again in respect of the matter, the
old scheme relevant Minister must make a determination
under section 1.34 of the Gas Code as if the Gas Code
continued to apply.
(5) If on the review the relevant appeals body makes a
determination that sets aside the pending old scheme
coverage non-revocation determination and that is to
operate in place of the pending old scheme coverage
non-revocation determination, the determination of the
relevant appeals body is deemed to be, on the day that
determination takes effect--
(a) if that determination is that coverage of the
covered pipeline is revoked--a coverage
revocation determination;
(b) if that determination is that coverage of the
covered pipeline is not revoked--a decision not to
make a coverage revocation determination under
section 106.
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22. Binding no-coverage determinations
On the commencement day, a binding no-coverage
determination in effect immediately before that day is
deemed to be a 15-year no-coverage determination.
23. Pending applications for binding no-coverage
determinations (before NCC recommendation)
(1) This clause applies if--
(a) an application under section 13D of the old access
law for a binding no-coverage determination has
been made before the commencement day; and
(b) NCC has not made a recommendation under
section 13J of the old access law in relation to that
application before that day.
(2) On and after the commencement day, the NCC must,
despite the repeal of the old access law, continue to take
action in relation to the application as required under the
old access law (including making a recommendation under
section 13J of the old access law and submitting it to the
relevant old scheme relevant Minister under that section) as
if the old access law continued to apply.
24. Pending relevant Minister decisions for binding no-coverage
determinations under old scheme
(1) This clause applies if--
(a) an old scheme relevant Minister has received a
recommendation of the NCC under section 13J of
the old access law before the commencement day
but the old scheme relevant Minister has not made
a determination under section 13J of the old access
law in relation to that recommendation before that
day; or
(b) an old scheme relevant Minister receives a
recommendation of the NCC as provided for under
clause 23 on or after the commencement day.
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(2) On and after the commencement day, the old scheme
relevant Minister must, despite the repeal of the old access
law, make a decision under section 13K of the old access
law in relation to that recommendation as if the old access
law continued to apply.
(3) A decision made in accordance with subclause (2) is
deemed to be, on the relevant transition date--
(a) if the decision is a binding no-coverage
determination--a 15-year no-coverage
determination;
(b) if the decision is not to make binding no-coverage
determination--a decision not to make a 15-year
no-coverage determination under section 162.
(4) In this clause--
relevant transition date means, if an application is not
made under section 38 of the old access law for a review of
the decision within the time specified by that section--the
day after the last day an application could have been made
under that section.
25. Pending relevant Minister decisions in relation to binding
no-coverage determinations that are reviewed under old
scheme
(1) This clause applies if--
(a) an old scheme relevant Minister makes a decision
under section 13J of the old access law in
accordance with clause 24; and
(b) an application is made under section 38 of the old
access law for a review of the decision of the old
scheme relevant Minister.
(2) If on the review the relevant appeals body refuses to review
the determination in accordance with section 38(11) of the
old access law, the decision of the old scheme relevant
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Minister is deemed to be, on the day the decision of the
relevant appeals body takes effect--
(a) if the decision is a binding no-coverage
determination--a 15-year no-coverage
determination;
(b) if the decision is not to make a binding
no-coverage determination--a decision not to
make a 15-year no-coverage determination under
section 162.
(3) If on the review the relevant appeals body makes a
determination under section 38 of the old access law
affirming or varying the decision of the old scheme
relevant Minister, that decision (as affirmed or varied) is
deemed to be, on the day the order of the relevant appeals
body affirming or varying that decision takes effect--
(a) if the decision is a binding no-coverage
determination--a 15-year no-coverage
determination;
(b) if the decision is not to make a binding
no-coverage determination--a decision not to
make a 15-year no-coverage determination under
section 162.
(4) If on the review the relevant appeals body makes a
determination under section 38 of the old access law that
sets aside the decision of the old scheme relevant Minister
and remits the matter to the old scheme relevant Minister
for the Minister to make a decision again in respect of the
matter, the Minister must make a decision under clause 24.
(5) If on the review the relevant appeals body makes a
determination under section 38 of the old access law that
sets aside the decision of the old scheme relevant Minister
and that is to operate in place of the decision of the old
scheme relevant Minister, the determination of the relevant
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appeals body is deemed to be, on the day that
determination takes effect--
(a) if the determination is a binding no-coverage
determination--a 15-year no-coverage
determination;
(b) if the determination is not to make binding
no-coverage determination--a decision not to
make a 15-year no-coverage determination under
section 162.
Part 4 -- Access arrangements
26. Current access arrangements (other than old scheme limited
access arrangements)
Subject to this Part, on the commencement day--
(a) a current access arrangement approved in--
(i) a final decision under section 2.16 or 2.38
of the Gas Code; or
(ii) a further final decision under section 2.19
or 2.41 of the Gas Code,
is deemed to be a full access arrangement
approved by the AER under a full access
arrangement decision;
(b) a current access arrangement drafted and approved
by a relevant Regulator under section 2.20 or 2.42
of the Gas Code is deemed to be a full access
arrangement made by the AER under a full access
arrangement decision.
27. Old scheme limited access arrangements
On the commencement day, an old scheme limited access
arrangement is deemed to be a limited access arrangement
approved by the AER under the Rules.
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28. Access arrangements submitted but not approved or
rejected before repeal of old scheme
(1) This clause applies if--
(a) a proposed access arrangement has been submitted
under section 2.2 of the Gas Code to a relevant
Regulator before the commencement day for
approval; and
(b) the relevant Regulator has not, that day--
(i) approved that access arrangement in a
final decision under section 2.16, or a
further final decision under section 2.19
of the Gas Code; or
(ii) drafted and approved its own access
arrangement under section 2.20 of the Gas
Code.
(2) On and after the commencement day, the relevant
Regulator must, despite the repeal of the Gas Code, deal
with the proposed access arrangement as if the Gas Code
continued to apply.
(3) An access arrangement approved, or drafted and approved,
in accordance with subclause (2) is deemed to be, on the
day the relevant decision takes effect--
(a) in the case of an access arrangement approved in a
final decision under section 2.16, or a further final
decision under section 2.19, of the Gas Code--a
full access arrangement approved by the AER
under a full access arrangement decision;
(b) in the case of an access arrangement drafted and
approved by the relevant Regulator under
section 2.20 of the Gas Code--a full access
arrangement made by the AER under a full access
arrangement decision.
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(4) Despite anything to the contrary in this Law and the repeal
of the old access law, section 39 of the old access law
continues to apply to a full access arrangement decision
referred to in this section as if a reference in that section to
a decision of the relevant Regulator under the Gas Code
were a reference to a full access arrangement decision of
the AER.
29. Access arrangement revisions submitted but not approved
or rejected before repeal of old scheme
(1) This clause applies if--
(a) proposed revisions to a current access arrangement
have been submitted under section 2.28 of the Gas
Code to a relevant Regulator before the
commencement day for approval; and
(b) the relevant Regulator has not, before that day--
(i) approved those revisions in a final
decision under section 2.38, or a further
final decision under section 2.41, of the
Gas Code; or
(ii) drafted and approved its own revisions
under section 2.42 of the Gas Code.
(2) On and after the commencement day, the relevant
Regulator must, despite the repeal of the Gas Code, deal
with the proposed revisions as if the Gas Code continued to
apply.
(3) An access arrangement in respect of which revisions are
approved, or drafted and approved, in accordance with
subclause (2) is deemed to be, on the day the relevant
decision takes effect--
(a) in the case of an access arrangement in respect of
which revisions are approved in a final decision
under section 2.38, or a further final decision
under section 2.41, of the Gas Code--a full access
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arrangement as revised by the AER under a full
access arrangement decision;
(b) in the case of an access arrangement in respect of
which revisions are drafted and approved by the
relevant Regulator under section 2.42 of the Gas
Code--a full access arrangement (as revised)
made by the AER under a full access arrangement
decision.
(4) Despite anything to the contrary in this Law and the repeal
of the old access law, section 39 of the old access law
continues to apply to a full access arrangement decision
referred to in this section as if a reference in that section to
a decision of the relevant Regulator under the Gas Code
were a reference to a full access arrangement decision of
the AER.
30. Certain provisions of the Gas Code to continue to apply to
current and proposed access arrangements
(1) Despite the repeal of the Gas Code and subject to this
clause and any current access arrangement modification
Rules, sections 3, 8 and 10.8 of the Gas Code continue to
apply to a transitioned access arrangement until revisions
to that access arrangement first approved or made in
accordance with this Law and the Rules after the
commencement day take effect.
(2) To avoid doubt, after the commencement day, a covered
pipeline service provider must, despite anything to the
contrary in a transitioned access arrangement, submit an
access arrangement revision proposal in relation to that
access arrangement in accordance with section 132 and the
Rules.
(3) Sections 3, 8 and 10.8 of the Gas Code, as applied under
this clause, do not have effect to the extent that they
provide for or deal with the procedure for the approval of
revisions to access arrangements.
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(4) For the purposes of this clause--
(a) the AER is deemed to have the functions and
powers a relevant Regulator has under sections 3,
8 and 10.8 of the Gas Code as applied under this
clause; and
(b) every reference to a relevant Regulator in those
sections as applied under this clause is deemed to
be a reference to the AER.
(5) In this clause--
access arrangement revision proposal has the same
meaning as in the Rules;
current access arrangement modification Rules means
Rules made for or with respect to item 81 of Schedule 1 to
this Law that are in force.
31. Certain decisions relating to certain access arrangements
are reviewable regulatory decisions for purposes of
Chapter 8 Part 5 of the Law
(1) Despite anything to the contrary in this Law, the definition
of reviewable regulatory decision in section 244 is
deemed, during the relevant transition period, to include
decisions of the AER--
(a) that disallow a variation proposed by a service
provider of a Reference Tariff contained in a
transitioned access arrangement; or
(b) to make the AER's own variation of a Reference
Tariff in respect of a transitioned access
arrangement--
(i) on disallowing a variation proposed by a
service provider; or
(ii) because a service provider fails to submit
such a variation as required.
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(2) In this clause--
new scheme revisions commencement date means the date
revisions approved or made to a transitioned access
arrangement under this Law and the Rules take effect
following the first review of that access arrangement under
this Law and the Rules after the commencement day;
Reference Tariff has the same meaning as in the Gas Code
immediately before its repeal;
relevant transition period means the period--
(a) commencing on the commencement day; and
(b) ending on the day after the day that is 15 business
days after the first new scheme revisions
commencement date.
Note--
See also clause 30.
32. Limited access arrangements submitted but not approved
before repeal of old scheme
(1) This clause applies if a proposed limited access
arrangement or a proposed amendment to a limited access
arrangement--
(a) has been submitted under section 13U(1) of the
old access law to the ACCC before the
commencement day for approval; and
(b) the ACCC has not approved that limited access
arrangement or that amendment before that day.
(2) On and after the commencement day, the ACCC must,
despite the repeal of the old access law, deal with the
proposed access arrangement under section 13U as if the
old access law continued to apply.
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(3) A proposed limited access arrangement, or a proposed
amendment to a limited access arrangement, approved by
the ACCC in accordance with subclause (2) is deemed to
be, on the day the decision takes effect--
(a) in the case of a decision approving the proposed
limited access arrangement--a limited access
arrangement approved by the AER under a limited
access arrangement decision;
(b) in the case of a decision approving a proposed
amendment to a limited access arrangement--a
variation to a limited access arrangement approved
by the AER under the Rules.
33. Extensions and expansions policies
On the commencement day, an Extensions/Expansions
Policy (as defined in section 3.16 of the Gas Code), and in
effect immediately before that day, is deemed to be
extension and expansion requirements.
34. Queuing policies
On the commencement day, a Queuing Policy (as defined
in section 3.12 of the Gas Code), and in effect immediately
before that day, is deemed to be queuing requirements.
Part 5 -- Price regulation exemptions
35. Old scheme price regulation exemptions
On the commencement day, an old scheme price regulation
exemption in effect immediately before that day is deemed
to be a price regulation exemption.
36. Pending applications for price regulation exemptions
(1) This clause applies if--
(a) an application under section 13N of the old access
law for an old scheme price regulation exemption
has been made before the commencement day; and
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(b) NCC has not made a recommendation under
section 13R of the old access law in relation to that
application before that day.
(2) On and after the commencement day, the NCC must,
despite the repeal of the old access law, continue to take
action in relation to the application as required under the
old access law (including making a recommendation under
section 13R of the old access law and submitting it to the
Commonwealth Minister under that section) as if the old
access law continued to apply.
37. Pending Commonwealth Minister decisions for price
regulation exemptions
(1) This clause applies if--
(a) the Commonwealth Minister has received a
recommendation of the NCC under section 13R of
the old access law before the commencement day
but the Commonwealth Minister has not made a
decision under section 13S of the old access law in
relation to that recommendation before that day; or
(b) the Commonwealth Minister receives a
recommendation of the NCC as provided for under
clause 36 after the commencement day.
(2) On and after the commencement day, the Commonwealth
Minister must, despite the repeal of the old access law,
make a decision under section 13S of the old access law in
relation to that recommendation as if the old access law
continued to apply.
(3) If the Commonwealth Minister makes an old scheme price
regulation exemption under section 13S of the old access
law in accordance with subclause (2), that exemption is
deemed to be a price regulation exemption on the day it is
made.
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Part 6 Structural and operational separation (ring fencing)
cl. 38
Part 6 -- Structural and operational separation (ring fencing)
38. Definitions
In this Part--
old scheme ring fencing requirement, in relation to a
service provider, means--
(a) section 4.1(b) to (d), (h) or (i) of the Gas Code as
those sections apply to the service provider subject
to--
(i) any notice given to the service provider
under section 4.15(a) of the Gas Code
waiving that service provider's
compliance with an obligation under
section 4.1(b) of the Gas Code that is in
effect immediately before the
commencement day; and
(ii) any notice given to the service provider
under section 4.15(b) of the Gas Code
waiving that service provider's
compliance with an obligation under
section 4.1(h) and (i) of the Gas Code that
is in effect immediately before the
commencement day; or
(b) any obligation applying to the service provider
under a notice given to that service provider under
section 4.3 of the Gas Code that is in effect
immediately before the commencement day;
relevant transition period means the period beginning on
the commencement day and ending on the day that is
6 months after the commencement day.
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cl. 39
39. Compliance with certain old scheme ring fencing
requirements sufficient compliance for 6 month period
(1) Despite anything to the contrary in this Law, a service
provider who during the relevant transition period complies
with an old scheme ring fencing requirement must be taken
to comply with Division 2 and Division 3 of Chapter 4
Part 2 of the Law during that period.
(2) In addition to subclause (1) but subject to subclauses (3)
and (4), a service provider must continue to comply with
an old scheme ring fencing requirement as if the Gas Code
continued to apply.
(3) A service provider may depart from complying with an old
scheme ring fencing requirement before the end of the
relevant transition period solely for the purpose of
preparing to comply with Division 2 or Division 3 of
Chapter 4 Part 2 of this Law at the end of that period.
(4) If a service provider does depart from complying with an
old scheme ring fencing requirement in accordance with
subclause (3) the service provider must in respect of that
departure comply with Division 2 and Division 3 of
Chapter 4 Part 2 of this Law (as the case requires).
40. Existing waivers of ring fencing obligations
(1) After the relevant transition period, a notice given to a
service provider under section 4.15(a) of the Gas Code
waiving that service provider's compliance with an
obligation under section 4.1(b) of the Gas Code, and in
effect immediately before the commencement day, is
deemed to be an exemption of the AER under section 146
from the requirement to comply with section 139 given to
that service provider.
(2) After the relevant transition period, a notice given to a
service provider under section 4.15(b) of the Gas Code
waiving that service provider's compliance with an
obligation under section 4.1(h) and (i) of the Gas Code, and
in effect immediately before the commencement day, is
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deemed to be an exemption of the AER under section 146
from the requirement to comply with section 140 given to
that service provider.
(3) Subclauses (1) and (2) do not apply to the extent to which a
notice referred to in those subclauses is inconsistent with
this Law or the Rules.
41. Additional ring fencing obligations
(1) After the relevant transition period, a notice given to a
service provider under section 4.3 of the Gas Code and in
effect immediately before the commencement day is
deemed to be an additional ring fencing requirement (as
defined in section 137).
(2) Subclause (1) does not apply to the extent to which a notice
referred to in that subclause is inconsistent with this Law or
the Rules.
Part 7 -- Access disputes
42. Non-finalised access disputes
(1) A non-finalised access dispute must continue to be dealt
with in accordance with the old access law and Gas Code
despite the repeal of the old access law and Gas Code.
(2) However, despite anything to the contrary in the old access
law and Gas Code, a non-finalised access dispute is to be
dealt with by the dispute resolution body and for that
purpose--
(a) every reference to an arbitrator in Part 4 of the old
access law and in the Gas Code is to be read as a
reference to the dispute resolution body; and
(b) anything done in relation to a non-finalised access
dispute by an arbitrator before the commencement
day is deemed to have been done by the dispute
resolution body; and
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(c) the dispute resolution body may, in relation to a
particular non-finalised access dispute, have
regard to any record of the arbitrator conducting
the arbitration of that non-finalised access dispute;
and
(d) the arbitrator must stop conducting the arbitration
and give the dispute resolution body all documents
the arbitrator has created for the purposes of, or
received in, the arbitration.
(3) In this clause--
non-finalised access dispute means an access dispute
within the meaning of section 14 of the old access law that
has arisen and not been finally determined under Part 4 of
the old access law and Gas Code before the
commencement day.
Part 8 -- Investigations and proceedings
43. Investigations into breaches and possible breaches of the old
access law or Gas Code
(1) On and after the commencement day, a relevant Regulator
investigation may be conducted and completed by the AER
in accordance with this Law, the Regulations and the Rules
as if that investigation were commenced by the AER under
this Law, the Regulations and the Rules.
(2) In this clause--
relevant Regulator investigation means an investigation
into a breach or possible breach of the old access law or
Gas Code that--
(a) has been commenced by a relevant Regulator
before the commencement day; and
(b) has not been completed by the relevant Regulator
before the commencement day.
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Part 8 Investigations and proceedings
cl. 44
44. AER may conduct investigations into breaches or possible
breaches of Gas Pipelines Access Law not investigated by a
relevant Regulator
(1) Despite anything to the contrary in this Schedule, the AER
may, on and after the commencement day, conduct an
investigation into a breach or possible breach of the old
access law or the Gas Code.
(2) The AER may conduct an investigation referred to in
subclause (1) as if it were an investigation into a breach of
this Law, and for that purpose, may exercise all of the
powers it has under this Law relating to investigations into
breaches or possible breaches under this Law.
45. AER may bring proceedings in relation to breaches of old
access law and Gas Code
(1) In this clause--
AER breach investigation means an investigation
conducted and completed by the AER in accordance with
clause 43 or 44.
(2) On and after the commencement day, the AER may bring
proceedings in the Court in respect of an AER breach
investigation.
(3) Despite anything to the contrary in clause 2 or the repeal of
the old access law and Gas Code, Part 5 of the old access
law applies to a proceeding under this clause as if--
(a) a reference in that Part to a relevant Regulator or
the ACCC were a reference to the AER; and
(b) regulation 5 of, and Schedule 2 to, the Gas
Pipelines Access (Western Australia)
Regulations 2000 were not repealed.
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Associate contracts Part 9
cl. 46
Part 9 -- Associate contracts
46. Pending associate contract approvals that are approved
after commencement day
(1) This clause applies if on the commencement day--
(a) there is a proposed associate contract (within the
meaning of section 10.8 of the Gas Code) with a
relevant Regulator for approval; and
(b) the relevant Regulator has not made a decision
approving or not approving the proposed associate
contract.
(2) The relevant Regulator must, despite the repeal of the old
access law and the Gas Code, take action in relation to that
proposed associate contract under section 7.1 to 7.6 of the
Gas Code as if the old access law and Gas Code continued
to apply.
(3) If the relevant Regulator decides to approve the proposed
associate contract under section 7.1 to 7.6 of the Gas Code,
that associate contract is deemed to be an approved
associate contract on, as the case requires--
(a) the day the relevant Regulator approves the
associate contract in accordance with those
sections; or
(b) the day the relevant Regulator is deemed to have
approved the associate contract by operation of
those sections.
47. Pending associate contracts approvals that are not approved
(1) This clause applies if the relevant Regulator decides not to
approve a proposed associate contract under clause 46.
(2) If an application is not made under section 38 of the old
access law for a review of the decision within the time
specified by that section, the proposed associate contract is
deemed not to be an approved associate contract on the day
after the last day an application could have been made
under that section.
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Part 9 Associate contracts
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(3) If an application is made under section 38 of the old access
law for a review of the decision but the relevant appeals
body refuses to review the decision in accordance with
section 38(11) of the old access law, the proposed associate
contract is deemed not to be an approved associate contract
on the day on which the determination of the relevant
appeals body takes effect.
(4) If--
(a) an application is made under section 38 of the old
access law for a review of the decision; and
(b) the relevant appeals body, by determination,
affirms the decision,
the proposed associate contract is deemed not to be an
approved associate contract on the day on which the
determination of the relevant appeals body affirming the
decision takes effect.
(5) If--
(a) an application is made under section 38 of the old
access law for a review of the decision; and
(b) the relevant appeals body makes a determination
that sets aside the decision and remits the matter to
the relevant Regulator for the Regulator to make a
decision again in respect of the matter,
the relevant Regulator must make a decision under
clause 46.
(6) If--
(a) an application is made under section 38 of the old
access law for a review of the decision; and
(b) the relevant appeals body makes a determination
that sets aside the decision and approves the
associate contract,
the proposed associate contract to which the determination
relates is deemed to be, on the day the determination takes
effect, an approved associate contract.
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Other Part 10
cl. 48
48. Approved associate contracts
(1) On the commencement day, an associate contract (within
the meaning of section 10.8 of the Gas Code)--
(a) in effect immediately before that day; and
(b) that has been approved by a relevant Regulator
under section 7 of the Gas Code,
is deemed to be an approved associate contract.
(2) On the commencement day, an associate contract (within
the meaning of section 10.8 of the Gas Code)--
(a) in effect immediately before that day; and
(b) that has been deemed to have been approved by
operation of section 7 of the Gas Code,
is deemed to be an approved associate contract.
Part 10 -- Other
49. Pending and final tender approval requests lapse
(1) On the commencement day, every Tender Approval
Request (within meaning of section 10.8 of the Gas Code),
in respect of which a decision has not been made under
section 3.25 of the Gas Code immediately before that day,
lapses.
(2) On the commencement day, every Final Approval Request
(within the meaning of section 3.29 of the Gas Code), in
respect of which a decision has not been made under that
section immediately before that day, lapses.
50. Decisions approving final approval requests
(1) This section applies if before, or on, the commencement
day a relevant Regulator has made or makes a decision
under section 3.32 of the Gas Code that approves a Final
Approval Request (within the meaning of section 10.8 of
the Gas Code).
page 357
National Gas Access (WA) Bill 2008
Note Western Australian National Gas Access Law text
Schedule 3 Savings and transitionals
Part 10 Other
cl. 51
(2) On the commencement day--
(a) the decision of the relevant Regulator is deemed to
be a tender approval decision that has become
irrevocable by operation of the Rules; and
(b) the pipeline to which the decision relates is
deemed to be a covered pipeline.
51. Rights under certain change of law provisions in agreements
or deeds not to be triggered
(1) The repeal of the old access law and the Gas Code, and the
commencement of this Law and the initial National Gas
Rules, is not to be regarded as a change of law (however
defined) under any agreement or deed in effect on the
commencement day.
(2) Subclause (1) applies despite any provision in any
agreement or deed to the contrary.
52. References to relevant Regulator in access arrangements
On the commencement day, unless the context otherwise
requires, every reference to a relevant Regulator in a
current access arrangement deemed under Part 4 of this
Schedule to be a full access arrangement or a limited
access arrangement is deemed to be a reference to the
AER.
53. Old scheme classifications and scheme participant
determinations
(1) On the commencement day, every old scheme
classification and scheme participant determination
applying to an old scheme covered pipeline is deemed to be
an initial classification decision (within the meaning of
section 98(1)).
page 358
National Gas Access (WA) Bill 2008
Western Australian National Gas Access Law text Note
Savings and transitionals Schedule 3
Other Part 10
cl. 53
(2) In this clause--
old scheme classification and scheme participant
determination means--
(a) a classification and determination under
section 10(5)(a) of the old access law; or
(b) a determination under section 10(5)(b) of the old
access law; or
(c) a classification and determination under
section 11(3) of the old access law.
page 359
National Gas Access (WA) Bill 2008
Defined Terms
Defined Terms
[This is a list of terms defined and the provisions where they are defined.
Unless otherwise indicated references are to provisions in the Note.
The list is not part of the law.]
Defined Term Provision(s)
15-year no-coverage determination....................................................... 2, 151(1)
ACCC.............................................................................................................. 2
access arrangement .......................................................................................... 2
access arrangement revision proposal .............................................. Sch. 3 cl. 30
access determination ........................................................................................ 2
access dispute .............................................................................................. 178
access dispute pipeline ................................................................................ 178
Act ................................................................................................. Sch. 2 cl. 10
acting SES employee....................................................................... Sch. 2 cl. 33
active request ........................................................................................... 301(1)
additional instrument making power ................................................ Sch. 2 cl. 27
additional ring fencing requirement .................................................. 137, 143(1)
adjacent area in respect of the State ....................................................... Act 5(2)
adjacent area of another participating jurisdiction .................................. Act 9(1)
adjacent area of this jurisdiction ............................................................ Act 9(1)
AEMC............................................................................................................. 2
AEMC chief executive .................................................................... Sch. 2 cl. 33
AEMC Commissioner..................................................................... Sch. 2 cl. 33
AEMC initiated Rule.................................................................................... 290
AEMC official ........................................................................................... 86(3)
AEMC Rule review...................................................................................... 290
AER ................................................................................................................ 2
AER breach investigation................................................................ Sch. 3 cl. 45
AER economic regulatory decision................................................................... 2
AER economic regulatory function or power .................................................... 2
AER information disclosure decision............................................................ 244
AER member .................................................................................. Sch. 2 cl. 33
AER ring fencing determination ....................................................................... 2
affected or interested person or body .....................................................244, 250
affidavit .......................................................................................... Sch. 2 cl. 10
amend............................................................................................. Sch. 2 cl. 10
applicable access arrangement.......................................................................... 2
applicable access arrangement decision ............................................................ 2
applicant ...................................................................................................... 244
appoint............................................................................................ Sch. 2 cl. 10
approved associate contract .............................................................................. 2
associate .......................................................................................................... 2
associate contract ............................................................................................. 2
associate contract decision................................................................................ 2
page 360
National Gas Access (WA) Bill 2008
Defined Terms
associate pipeline service ................................................................................. 2
authorised person ........................................................................................... 31
average annual regulated revenue ................................................................. 244
basic instrument making power ....................................................... Sch. 2 cl. 27
binding no-coverage determination.................................................... Sch. 3 cl. 1
breach............................................................................................. Sch. 2 cl. 10
breach provision........................................................................................... 287
Bulletin Board information............................................................................... 2
Bulletin Board operator.................................................................................... 2
business day.................................................................................... Sch. 2 cl. 10
business unit A......................................................................................... 143(2)
business unit B......................................................................................... 143(2)
calendar month ............................................................................... Sch. 2 cl. 10
calendar year................................................................................... Sch. 2 cl. 10
charge.............................................................................................................. 2
civil monetary liability ................................................................. 221(6), 226(5)
civil penalty ..................................................................................................... 2
civil penalty provision...................................................................................... 2
classification decision under the Rules.............................................................. 2
coastal waters........................................................................................ Act 5(2)
commencement............................................................................... Sch. 2 cl. 10
commencement day........................................................................... Sch. 3 cl. 1
commission...................................................................................................... 2
Commonwealth bodies........................................................................ Act 12(2)
Commonwealth Minister.................................................................................. 2
compliance date ........................................................................................... 137
complying service provider ........................................................................ 10(2)
conduct provision............................................................................................. 2
confer ............................................................................................. Sch. 2 cl. 10
consolidated Rule request............................................................................. 300
contravene ...................................................................................... Sch. 2 cl. 10
contributing service........................................................................................ 43
controlling pipeline activity........................................................................ 10(5)
Councillor.................................................................................................. 90(9)
Court .................................................................................................... Act 9(1)
coverage determination .......................................................................... 2, 92(1)
coverage recommendation................................................................................ 2
coverage related light regulation decision ..................................................... 244
coverage revocation determination ....................................................... 2, 102(1)
coverage revocation recommendation............................................................... 2
covered pipeline............................................................................................... 2
covered pipeline service provider ..................................................................... 2
cross boundary distribution pipeline ................................................................. 2
cross boundary pipeline....................................................................... Act 16(4)
cross boundary transmission pipeline................................................................ 2
page 361
National Gas Access (WA) Bill 2008
Defined Terms
current access arrangement................................................................ Sch. 3 cl. 1
current access arrangement modification Rules................................ Sch. 3 cl. 30
decision maker................................................................................ Sch. 2 cl. 31
definition ........................................................................................ Sch. 2 cl. 10
designated Minister............................................................................... Act 9(1)
designated pipeline........................................................................................... 2
developable capacity ........................................................................................ 2
dispute hearing............................................................................................. 178
dispute resolution body ............................................................. Act 9(1), Note 2
distribution pipeline ......................................................................................... 2
document ........................................................................................ Sch. 2 cl. 10
draft Rule determination................................................................................... 2
empowering provision..................................................................... Sch. 2 cl. 27
end user ....................................................................................................2, 244
ERA ................................................................................................................ 2
ERA pipeline ........................................................................................ Act 9(1)
estate .............................................................................................. Sch. 2 cl. 10
excluded infrastructure................................................................................. 149
exempt contract................................................................................... Act 19(3)
exempt matter ..................................................................................... Act 15(2)
expire ............................................................................................. Sch. 2 cl. 10
extension and expansion requirements.............................................................. 2
fail.................................................................................................. Sch. 2 cl. 10
final Rule determination................................................................................... 2
financial year .................................................................................. Sch. 2 cl. 10
foreign company .............................................................................................. 2
foreign source .................................................................................................. 2
form of regulation factors................................................................................. 2
full access arrangement .................................................................................... 2
full access arrangement decision....................................................................... 2
function .......................................................................................... Sch. 2 cl. 10
further disclosure notice ........................................................................... 329(6)
Gas Code ......................................................................................................... 2
gas market operator.......................................................................................... 2
gas market regulatory body .......................................................................... 290
gas other than natural gas ....................................................................Act 6A(3)
Gas Pipelines Access Law................................................................... Act 11(4)
Gazette ........................................................................................... Sch. 2 cl. 10
general regulatory information order ................................................................ 2
GMCo ......................................................................................................... 290
greenfields pipeline incentive ........................................................................... 2
greenfields pipeline project .......................................................................... 149
haulage ............................................................................................................ 2
initial classification decision....................................................... 2, 98(1), 155(1)
initial disclosure notice.......................................................................329(2), (3)
page 362
National Gas Access (WA) Bill 2008
Defined Terms
initial National Gas Rules................................................................................. 2
instrument....................................................................................... Sch. 2 cl. 10
interest............................................................................................ Sch. 2 cl. 10
international pipeline........................................................................................ 2
intervener..................................................................................................... 244
jurisdictional determination criteria .................................................................. 2
jurisdictional gas legislation ............................................................................. 2
aw extrinsic material....................................................................... Sch. 2 cl. 8
egislature of this jurisdiction ............................................................... Act 9(1)
light regulation determination................................................... 2, 110(1), 112(1)
light regulation services.................................................................................... 2
limited access arrangement............................................................................... 2
limited access arrangement decision ................................................................. 2
make............................................................................................... Sch. 2 cl. 10
market initiated proposed Rule ..................................................................... 290
marketing staff............................................................................................. 137
matters of a transitional nature............................................................. Act 11(4)
MCE................................................................................................................ 2
MCE directed review ....................................................................................... 2
MCE statement of policy principles.................................................................. 2
minimum ring fencing requirement................................................................... 2
Minister of a participating jurisdiction .............................................................. 2
Minister of this participating jurisdiction .................................................... 87(3)
Ministerial coverage decision ........................................................................... 2
Ministerial or NCC scheme decision......................................................... 333(3)
minor.............................................................................................. Sch. 2 cl. 10
modification.................................................................................... Sch. 2 cl. 10
month ............................................................................................. Sch. 2 cl. 10
more preferable Rule.............................................................................290, 296
named month .................................................................................. Sch. 2 cl. 10
National Gas Access (Western Australia) Law............................. Act 3(1), 11(4)
National Gas Access (Western Australia) Regulations ........................... Act 3(1)
National Gas Law or this law ................................................................ Act 9(1)
national gas legislation ..................................................................................... 2
national gas objective ....................................................................................... 2
National Gas Rules or Rules............................................................................. 2
national provisions .............................................................................. Act 19(3)
natural gas ....................................................................................................... 2
natural gas service............................................................................................ 2
Natural Gas Services Bulletin Board................................................................. 2
NCC ................................................................................................................ 2
NCC member.................................................................................. Sch. 2 cl. 33
NCC recommendation.................................................................................. 244
NCC recommendation or decision .................................................................... 2
new application Act .......................................................................... Sch. 3 cl. 1
page 363
National Gas Access (WA) Bill 2008
Defined Terms
new facility...................................................................................................... 2
new scheme revisions commencement date ..................................... Sch. 3 cl. 31
no-coverage recommendation........................................................................... 2
nominated disputes........................................................................... 208, 209(2)
non scheme pipeline user.................................................................................. 2
non-controversial Rule ................................................................................. 290
non-finalised access dispute ............................................................ Sch. 3 cl. 42
notified compliance date .......................................................................... 143(4)
number ........................................................................................... Sch. 2 cl. 10
oath ................................................................................................ Sch. 2 cl. 10
offence provision ............................................................................................. 2
office .............................................................................................. Sch. 2 cl. 10
officer.............................................................................................................. 2
old access law .................................................................................................. 2
old scheme classification and scheme participant determination ....... Sch. 3 cl. 53
old scheme classification or determination........................................................ 2
old scheme coverage application ....................................................... Sch. 3 cl. 1
old scheme coverage determination ................................................... Sch. 3 cl. 1
old scheme coverage revocation application ...................................... Sch. 3 cl. 1
old scheme coverage revocation determination .................................. Sch. 3 cl. 1
old scheme covered pipeline.............................................................. Sch. 3 cl. 1
old scheme distribution pipeline ....................................................................... 2
old scheme limited access arrangement.............................................. Sch. 3 cl. 1
old scheme price regulation exemption .............................................. Sch. 3 cl. 1
old scheme relevant Minister............................................................. Sch. 3 cl. 1
old scheme ring fencing requirement ............................................... Sch. 3 cl. 38
old scheme transmission pipeline ..................................................................... 2
omit ................................................................................................ Sch. 2 cl. 10
ordinary meaning .............................................................................. Sch. 2 cl. 8
original decision maker ................................................................................ 244
participating jurisdiction................................................................................... 2
party ........................................................................................178, Sch. 2 cl. 10
penalty............................................................................................ Sch. 2 cl. 10
pending old scheme coverage determination ...................................... Sch. 3 cl. 1
pending old scheme coverage non-revocation determination .............. Sch. 3 cl. 1
pending old scheme coverage revocation determination ..................... Sch. 3 cl. 1
pending old scheme no-coverage determination ................................. Sch. 3 cl. 1
person............................................................................................. Sch. 2 cl. 10
person aggrieved .......................................................................................... 241
pipeline............................................................................................................ 2
pipeline classification criterion ......................................................................... 2
pipeline coverage criteria ................................................................................. 2
pipeline reliability standard .............................................................................. 2
pipeline safety duty.......................................................................................... 2
pipeline service ................................................................................................ 2
page 364
National Gas Access (WA) Bill 2008
Defined Terms
pipeline service standard .................................................................................. 2
power ............................................................................................. Sch. 2 cl. 10
pre-notification right ................................................................................ 188(2)
prescribed ....................................................................................... Sch. 2 cl. 10
price or revenue regulation ............................................................................... 2
price regulation exemption ............................................................................... 2
price regulation exemption recommendation..................................................... 2
principal decision maker .......................................................................... 331(2)
printed ............................................................................................ Sch. 2 cl. 10
proceeding ...................................................................................... Sch. 2 cl. 10
processable gas ................................................................................................ 2
producer .......................................................................................................... 2
property .......................................................................................... Sch. 2 cl. 10
proposed Rule .............................................................................................. 290
prospective user ............................................................................................... 2
provision......................................................................................... Sch. 2 cl. 10
publish......................................................................................................... 290
queuing requirements....................................................................................... 2
reclassification decision ............................................................................2, 129
record ............................................................................................. Sch. 2 cl. 10
reference service .............................................................................................. 2
reference tariff ................................................................................................. 2
Reference Tariff.............................................................................. Sch. 3 cl. 31
regulated revenue......................................................................................... 244
Regulations...................................................................................................... 2
Regulations or Rules of a savings and transitional nature ................... Sch. 3 cl. 2
regulator ................................................................................... Act 9(1), Note 2
regulatory information instrument .................................................................... 2
regulatory information notice .......................................................................... 2
regulatory obligation or requirement................................................................. 2
regulatory payment ......................................................................................... 2
regulatory period.......................................................................................... 244
regulatory scheme decision maker ............................................................ 332(3)
related business............................................................................................ 137
related provider.............................................................................................. 43
relevant appeals body........................................................................ Sch. 3 cl. 1
relevant decision maker................................................................................ 330
relevant decision or document ......................................................... Sch. 2 cl. 31
relevant exclusivity right .............................................................. 188(2), 321(2)
relevant Minister.............................................................................................. 2
relevant national provisions................................................................. Act 19(3)
relevant notice................................................................. 42(1), Sch. 2 cl. 31, 33
relevant pipeline description..................................................................... 171(3)
relevant protected contractual right............................................... 188(2), 321(2)
relevant provision .......................................................................................... 31
page 365
National Gas Access (WA) Bill 2008
Defined Terms
relevant Regulator............................................................................................ 2
relevant Regulator investigation ...................................................... Sch. 3 cl. 43
relevant transition date ...........................................................Sch. 3 cl. 9, 16, 24
relevant transition period............................................................Sch. 3 cl. 31, 38
REMCo ....................................................................................................... 290
repeal.............................................................................................. Sch. 2 cl. 10
report trigger date..................................................................................... 320(1)
restricted period ....................................................................................... 329(8)
revenue and pricing principles.......................................................................... 2
review related matter ............................................................................... 261(7)
review under this Part................................................................................... 244
reviewable regulatory decision .................................................244, Sch. 3 cl. 31
reviewable regulatory decision process participant.................................... 254(2)
ring fencing decision........................................................................................ 2
Rule extrinsic material ...................................................................... Sch. 2 cl. 8
SA Schedule amendment.....................................................................Act 7A(1)
scheme decision ........................................................................................... 330
scheme pipeline ............................................................................................... 2
scheme pipeline service provider .................................................................... 43
scheme procedure ........................................................................................ 330
service provider ....................................................................... 2, 151(4), 160(3)
service provider group................................................................................ 10(1)
service provider performance report ................................................................. 2
SES employee................................................................................. Sch. 2 cl. 33
sign................................................................................................. Sch. 2 cl. 10
small to medium user or end user ................................................................. 244
small/medium user or consumer intervener................................................... 244
South Australian Act............................................................................. Act 3(1)
spare capacity ................................................................................................. 2
specified dispute termination circumstance .............................................. 186(3)
standard period ........................................................................................ 260(1)
statutory declaration........................................................................ Sch. 2 cl. 10
statutory instrument.............................................................. Sch. 2 cl. 10, 21, 51
storage provider ............................................................................................... 2
subsequent service provider...................................................................... 215(2)
supply.............................................................................................................. 2
swear .............................................................................................. Sch. 2 cl. 10
tariff ................................................................................................................ 2
tender approval decision................................................................................... 2
Territory .......................................................................................................... 2
that other legislation............................................................................ Act 16(1)
the first terms........................................................................................... 134(1)
the second terms ...................................................................................... 134(1)
this jurisdiction ..................................................................................... Act 9(1)
transitional period ............................................................................... Act 20(2)
page 366
National Gas Access (WA) Bill 2008
Defined Terms
transitioned access arrangement......................................................... Sch. 3 cl. 1
transmission pipeline........................................................................................ 2
Tribunal........................................................................................................... 2
urgent Rule .................................................................................................. 290
user.................................................................................................................. 2
user or consumer association ........................................................................ 244
user or consumer interest group.................................................................... 244
user or consumer intervener ......................................................................... 244
VENCorp......................................................................................................... 2
WA arbitrator............................................................................ Act 9(1), Note 2
Western Australian National Gas Access Law text................................. Act 7(2)
word ............................................................................................... Sch. 2 cl. 10
writing............................................................................................ Sch. 2 cl. 10
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