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NATIONAL GAS (QUEENSLAND) BILL 2008

          Queensland



National Gas (Queensland)
Bill 2008

 


 

 

Queensland National Gas (Queensland) Bill 2008 Contents Page Part 1 Preliminary 1 Short title . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 2 Commencement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 3 Interpretation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 4 Act binds the State . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 5 Application to coastal waters . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 6 Extra-territorial operation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Part 2 National Gas (Queensland) Law and National Gas (Queensland) Regulations 7 Application in Queensland of National Gas Law . . . . . . . . . . . . . 6 8 Application in Queensland of regulations under National Gas Law .......................................... 6 9 Interpretation of expressions in National Gas (Queensland) Law and National Gas (Queensland) Regulations. . . . . . . . . . . . . . . . 7 Part 3 Cross vesting of powers 10 Conferral of powers on Commonwealth Minister and Commonwealth bodies to act in this State . . . . . . . . . . . . . . . . . . 8 11 Conferral of powers on Ministers of participating States and Territories to act in this State . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 12 Conferral of functions or powers on State Minister. . . . . . . . . . . . 8 Part 4 Miscellaneous 13 Exemption from taxes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 14 Actions in relation to cross boundary pipelines . . . . . . . . . . . . . . 9 15 Conferral of functions and powers on Commonwealth bodies . . . 10 16 Regulation-making power. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Part 5 Repeal and transitional provisions Division 1 Repeal of Gas Pipelines Access (Queensland) Act 1998 17 Repeal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

 


 

National Gas (Queensland) Bill 2008 Contents Division 2 Transitional provisions 18 Transitional regulation-making power for particular pipelines. . . . 11 19 References to Gas Pipelines Access (Queensland) Law . . . . . . . 13 20 References to Gas Pipelines Access (Queensland) Regulations. 14 Part 6 Amendment of this Act when Offshore Petroleum Act 2006 (Cwlth) commences 21 Act amended in pt 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 22 Amendment of s 9 (Interpretation of expressions in National Gas (Queensland) Law and National Gas (Queensland) Regulations) 14 Part 7 Amendment of Other Acts Division 1 Amendment of Acts Interpretation Act 1954 23 Act amended in div 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 24 Amendment of s 36 (Meaning of commonly used words and expressions) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Division 2 Amendment of Gas Supply Act 2003 25 Act amended in div 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 26 Amendment of sch 2 (Dictionary) . . . . . . . . . . . . . . . . . . . . . . . . . 15 Division 3 Amendment of Petroleum (Submerged Lands) Act 1982 27 Act amended in div 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 28 Amendment of s 6A (Relationship of Act to Gas Pipelines Access (Queensland) Law) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 Division 4 Amendment of Duties Act 2001 29 Act amended in div 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 30 Amendment of s 428 (Exemption--particular instruments and transactions under Gas Pipelines Access (Queensland) Act) . . . 16 Division 5 Amendment of Federal Courts (State Jurisdiction) Act 1999 31 Act amended in div 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 32 Amendment of s 3 (Definitions) . . . . . . . . . . . . . . . . . . . . . . . . . . 17 Division 6 Amendment of Petroleum Act 1923 33 Act amended in div 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 34 Amendment of s 7 (Application of Act) . . . . . . . . . . . . . . . . . . . . . 17 Division 7 Amendment of Energy Ombudsman Act 2006 35 Act amended in div 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 36 Amendment of s 19 (Restrictions on disputes that can be referred) ...................................... 18 Attachment to the National Gas (Queensland) Act 2008 . . . . 19 Page 2

 


 

2008 A Bill for An Act to establish a framework to enable third parties to gain access to certain natural gas pipeline services, to repeal the Gas Pipelines Access (Queensland) Act 1998, and to make particular amendments to Acts as set out in parts 6 and 7

 


 

National Gas (Queensland) Bill 2008 Part 1 Preliminary [s 1] The Parliament of Queensland enacts-- 1 Part 1 Preliminary 2 1 Short title 3 This Act may be cited as the National Gas (Queensland) Act 4 2008. 5 2 Commencement 6 (1) This Act, other than part 6, commences on a day to be fixed 7 by proclamation. 8 (2) Part 6 commences when the Offshore Petroleum Act 2006 9 (Cwlth), section 7 commences. 10 3 Interpretation 11 (1) In this Act-- 12 National Gas (Queensland) Law means the provisions 13 applying because of section 7. 14 National Gas (Queensland) Regulations means the 15 provisions applying because of section 8. 16 South Australian Act means the National Gas (South 17 Australia) Act 2008 (SA). 18 (2) Words and expressions used in the National Gas 19 (Queensland) Law and in this Act have the same respective 20 meanings in this Act as they have in that Law. 21 (3) This section does not apply to the extent that the context or 22 subject matter otherwise indicates or requires. 23 Page 4

 


 

National Gas (Queensland) Bill 2008 Part 1 Preliminary [s 4] 4 Act binds the State 1 This Act, the National Gas (Queensland) Law and the 2 National Gas (Queensland) Regulations bind the State and, to 3 the extent the legislative power of the Parliament permits, the 4 Commonwealth and the other States. 5 5 Application to coastal waters 6 (1) This Act, the National Gas (Queensland) Law and the 7 National Gas (Queensland) Regulations apply in the coastal 8 waters of this State as if the coastal waters were within the 9 limits of the State. 10 (2) In this section-- 11 adjacent area in respect of the State means the adjacent area 12 of this jurisdiction under the National Gas (Queensland) Law 13 (as defined by section 9(1) of this Act). 14 coastal waters, in relation to this State, means any sea that is 15 on the landward side of the adjacent area in respect of the 16 State but is not within the limits of the State. 17 6 Extra-territorial operation 18 It is the intention of the Parliament that this Act, the National 19 Gas (Queensland) Law and the National Gas (Queensland) 20 Regulations should, so far as possible, operate to the full 21 extent of the extra-territorial legislative power of the State. 22 Page 5

 


 

National Gas (Queensland) Bill 2008 Part 2 National Gas (Queensland) Law and National Gas (Queensland) Regulations [s 7] Part 2 National Gas (Queensland) Law 1 and National Gas (Queensland) 2 Regulations 3 7 Application in Queensland of National Gas Law 4 (1) The National Gas Law set out in the Schedule to the South 5 Australian Act, as in force for the time being (the National 6 Gas Law)-- 7 (a) applies as a law of Queensland; and 8 (b) as so applying may be referred to as the National Gas 9 (Queensland) Law. 10 (2) Attached to this Act is a copy of the Bill for the South 11 Australian Act. 12 (3) The attachment is not part of this Act. 13 (4) In any reprint of this Act, the attachment must be revised so 14 that it is a copy of the South Australian Act most recently 15 published under the Legislation Revision and Publication Act 16 2002 (SA). 17 (5) Subsections (2) to (4) do not affect the operation of subsection 18 (1) or of section 8. 19 8 Application in Queensland of regulations under National 20 Gas Law 21 The regulations in force for the time being under part 3 of the 22 South Australian Act-- 23 (a) apply as regulations in force for the purposes of the 24 National Gas (Queensland) Law; and 25 (b) as so applying may be referred to as the National Gas 26 (Queensland) Regulations. 27 Page 6

 


 

National Gas (Queensland) Bill 2008 Part 2 National Gas (Queensland) Law and National Gas (Queensland) Regulations [s 9] 9 Interpretation of expressions in National Gas 1 (Queensland) Law and National Gas (Queensland) 2 Regulations 3 (1) In the National Gas (Queensland) Law and the National Gas 4 (Queensland) Regulations-- 5 adjacent area of another participating jurisdiction means the 6 area that is identified in the Petroleum (Submerged Lands) Act 7 1967 (Cwlth), section 5A as being the adjacent area in respect 8 of a State (other than this State) or in respect of the Northern 9 Territory. 10 adjacent area of this jurisdiction means the area that is 11 identified in the Petroleum (Submerged Lands) Act 1967 12 (Cwlth), section 5A as being the adjacent area in respect of 13 this State. 14 Court means the Supreme Court of Queensland. 15 designated Minister means the Commonwealth Minister. 16 Legislature of this jurisdiction means the Parliament of 17 Queensland. 18 National Gas Law or this Law means the National Gas 19 (Queensland) Law. 20 this jurisdiction means the State of Queensland. 21 (2) The Acts Interpretation Act 1915 (SA) and other Acts of 22 South Australia do not apply to-- 23 (a) the National Gas Law set out in the Schedule to the 24 South Australian Act in its application as a law of 25 Queensland; or 26 (b) the regulations in force for the time being under Part 3 27 of the South Australian Act in their application as 28 regulations in force for the purposes of the National Gas 29 (Queensland) Law. 30 Page 7

 


 

National Gas (Queensland) Bill 2008 Part 3 Cross vesting of powers [s 10] Part 3 Cross vesting of powers 1 10 Conferral of powers on Commonwealth Minister and 2 Commonwealth bodies to act in this State 3 (1) The Commonwealth Minister and the Commonwealth bodies 4 have power to do acts in or in relation to this State in the 5 performance or exercise of a function or power expressed to 6 be conferred on them respectively by the national gas 7 legislation of another participating jurisdiction. 8 (2) In this section-- 9 Commonwealth bodies means any of the following-- 10 (a) AER; 11 (b) NCC; 12 (c) the Tribunal. 13 11 Conferral of powers on Ministers of participating States 14 and Territories to act in this State 15 The Minister of a participating jurisdiction has power to do 16 acts in or in relation to this State in the performance or 17 exercise of a function or power expressed to be conferred on 18 the Minister by the national gas legislation of another 19 participating jurisdiction. 20 12 Conferral of functions or powers on State Minister 21 If the national gas legislation of another participating 22 jurisdiction confers a function or power on the Minister, the 23 Minister-- 24 (a) may perform that function or exercise that power; and 25 (b) may do all things necessary or convenient to be done in 26 connection with the performance or exercise of that 27 function or power. 28 Page 8

 


 

National Gas (Queensland) Bill 2008 Part 4 Miscellaneous [s 13] Part 4 Miscellaneous 1 13 Exemption from taxes 2 (1) Any tax, other than a duty under the Duties Act 2001, imposed 3 by or under a law of this State is not payable in relation to-- 4 (a) an exempt matter; or 5 (b) anything done (including, for example, a transaction 6 entered into or an instrument or document made, 7 executed, lodged or given) because of, or arising out of, 8 an exempt matter. 9 (2) In this section-- 10 exempt matter means a transfer of assets or liabilities that is 11 made for the purpose of ensuring that a person does not carry 12 on a business of producing, purchasing or selling natural gas 13 or processable gas in breach of any ring fencing requirements 14 of the national gas legislation or for the purpose of the 15 separation of certain businesses or business activities from 16 other businesses or business activities of a person as required 17 by an AER ring fencing determination. 18 14 Actions in relation to cross boundary pipelines 19 (1) If a pipeline is a cross boundary pipeline, any action taken 20 under the national gas legislation of a participating 21 jurisdiction in whose jurisdictional area a part of the pipeline 22 is situated-- 23 (a) by, or in relation to, a relevant Minister; or 24 (b) by the Court within the meaning of that legislation in 25 relation to action taken by, or in relation to, a relevant 26 Minister; 27 is taken also to be taken under the national gas legislation of 28 each participating jurisdiction in whose jurisdictional area a 29 part of the pipeline is situated (that other legislation)-- 30 Page 9

 


 

National Gas (Queensland) Bill 2008 Part 4 Miscellaneous [s 15] (c) by, or in relation to, a relevant Minister within the 1 meaning of that other legislation; or 2 (d) by the Court within the meaning of that other 3 legislation; 4 as the case requires. 5 (2) Despite subsection (1), no proceeding for judicial review or 6 for a declaration, injunction, writ, order or remedy may be 7 brought before the Court to challenge or question any action, 8 or purported action, of a relevant Minister taken, or 9 purportedly taken, in relation to a cross boundary distribution 10 pipeline unless this jurisdiction has been determined to be the 11 participating jurisdiction with which the cross boundary 12 distribution pipeline is most closely connected. 13 (3) A reference in this section-- 14 (a) to an action that is taken includes a reference to-- 15 (i) a decision or determination that is made; or 16 (ii) an omission that is made; and 17 (b) to a purported action that is purportedly taken includes a 18 reference to a purported decision or determination that 19 is purportedly made. 20 (4) In this section-- 21 cross boundary pipeline means-- 22 (a) a cross boundary transmission pipeline; or 23 (b) a cross boundary distribution pipeline. 24 15 Conferral of functions and powers on Commonwealth 25 bodies 26 (1) Clause 2 of schedule 2 to the National Gas (Queensland) Law 27 has effect in relation to the operation of any provision of this 28 Act, or any regulation forming part of the National Gas 29 (Queensland) Regulations, as if the provision or regulation 30 formed part of the National Gas (Queensland) Law. 31 Page 10

 


 

National Gas (Queensland) Bill 2008 Part 5 Repeal and transitional provisions [s 16] (2) Subsection (1) does not limit the effect that a provision or 1 regulation would validly have apart from the subsection. 2 16 Regulation-making power 3 The Governor in Council may make regulations under this 4 Act. 5 Part 5 Repeal and transitional 6 provisions 7 Division 1 Repeal of Gas Pipelines Access 8 (Queensland) Act 1998 9 17 Repeal 10 The Gas Pipelines Access (Queensland) Act 1998, No. 28 is 11 repealed. 12 Division 2 Transitional provisions 13 18 Transitional regulation-making power for particular 14 pipelines 15 (1) A regulation (a transitional regulation) may make provision 16 of a saving or transitional nature for which it is necessary to 17 make provision to allow or facilitate the change from the 18 operation of the repealed Act to the operation of this Act in 19 relation to a transition pipeline. 20 (2) Without limiting subsection (1), a transitional regulation may 21 for example provide for any of the following-- 22 Page 11

 


 

National Gas (Queensland) Bill 2008 Part 5 Repeal and transitional provisions [s 18] (a) whether, and to what extent, an approved tariff 1 arrangement for a transition pipeline may be taken to 2 continue to apply to the pipeline; 3 (b) whether, and to what extent, a transition pipeline is 4 taken to be a covered pipeline or a pipeline that is not a 5 covered pipeline; 6 (c) whether an application may be made for a coverage 7 determination in relation to a transition pipeline that, 8 under the transitional regulation, is taken not to be a 9 covered pipeline; 10 (d) whether a transition pipeline that, under the transitional 11 regulation, is taken to be a covered pipeline, is taken to 12 be a distribution pipeline or a transmission pipeline; 13 (e) whether the services provided by means of a transition 14 pipeline are taken to be the subject of a light regulation 15 determination; 16 (f) the terms of any limited access arrangement that is taken 17 to apply in relation to services that are taken to be the 18 subject of a light regulation determination; 19 (g) whether services that are taken to be the subject of a 20 light regulation determination can be made the subject 21 of a full access arrangement. 22 (3) A transitional regulation may be made to have effect in 23 relation to a transition pipeline only for the period during 24 which the approved tariff arrangement for the pipeline would, 25 other than for the repeal of the repealed Act, have been in 26 force. 27 (4) A transitional regulation may have retrospective operation to a 28 day not earlier than the commencement. 29 (5) A transitional regulation must declare it is a transitional 30 regulation. 31 (6) A transitional regulation expires 3 years after the day the 32 regulation commences. 33 Page 12

 


 

National Gas (Queensland) Bill 2008 Part 5 Repeal and transitional provisions [s 19] (7) The Acts Interpretation Act 1954, section 20A, as applied by 1 the Statutory Instruments Act 1992, section 14, applies in 2 relation to the expiry. 3 (8) In this section-- 4 approved tariff arrangement, for a transition pipeline, means 5 the tariff arrangement approved for the pipeline, under the 6 repealed Gas Pipelines Access (Queensland) Act 1998, 7 section 58(2). 8 commencement means the commencement of this section. 9 repealed Act means the repealed Gas Pipelines Access 10 (Queensland) Act 1998, and includes the repealed Gas 11 Pipelines Access (Queensland) Law and the repealed Gas 12 Pipelines Access (Queensland) Regulations. 13 this Act includes the National Gas (Queensland) Law and the 14 National Gas (Queensland) Regulations. 15 transition pipeline means a pipeline described in the 16 following table-- 17 Pipeline Common name of pipeline Where pipeline licence starts and ends number 24 South West Queensland Ballera to Pipeline Wallumbilla 30 Queensland Gas Pipeline Wallumbilla to Rockhampton 41 Carpentaria Gas Pipeline Ballera to Mt Isa 19 References to Gas Pipelines Access (Queensland) Law 18 If a law or a document refers to the Gas Pipelines Access 19 (Queensland) Law, if the context permits, the reference is 20 taken to be a reference to the National Gas (Queensland) Law. 21 Page 13

 


 

National Gas (Queensland) Bill 2008 Part 6 Amendment of this Act when Offshore Petroleum Act 2006 (Cwlth) commences [s 20] 20 References to Gas Pipelines Access (Queensland) 1 Regulations 2 If a law or a document refers to the Gas Pipelines Access 3 (Queensland) Regulations, if the context permits, the 4 reference is taken to be a reference to the National Gas 5 (Queensland) Regulations. 6 Part 6 Amendment of this Act when 7 Offshore Petroleum Act 2006 8 (Cwlth) commences 9 21 Act amended in pt 6 10 This part amends this Act. 11 22 Amendment of s 9 (Interpretation of expressions in 12 National Gas (Queensland) Law and National Gas 13 (Queensland) Regulations) 14 (1) Section 9(1), definitions adjacent area of another 15 participating jurisdiction and adjacent area of this 16 jurisdiction-- 17 omit. 18 (2) Section 9(1)-- 19 insert-- 20 `adjacent area of another participating jurisdiction means 21 the offshore area of a State (other than this State) or the 22 Northern Territory within the meaning given in the Offshore 23 Petroleum Act 2006 (Cwlth), section 7. 24 adjacent area of this jurisdiction means the offshore area of 25 the State within the meaning of the Offshore Petroleum Act 26 2006 (Cwlth), section 7.'. 27 Page 14

 


 

National Gas (Queensland) Bill 2008 Part 7 Amendment of Other Acts [s 23] Part 7 Amendment of Other Acts 1 Division 1 Amendment of Acts Interpretation 2 Act 1954 3 23 Act amended in div 1 4 This division amends the Acts Interpretation Act 1954. 5 24 Amendment of s 36 (Meaning of commonly used words 6 and expressions) 7 (1) Section 36, definitions Gas Pipelines Access (Queensland) 8 Law and Gas Pipelines Access (Queensland) Regulations-- 9 omit. 10 (2) Section 36-- 11 insert-- 12 `National Gas (Queensland) Law means the provisions 13 applying because of the National Gas Law (Queensland) Act 14 2008, section 7, and includes the National Gas (Queensland) 15 Regulations. 16 National Gas (Queensland) Regulations means the 17 provisions applying because of the National Gas Law 18 (Queensland) Act 2008, section 8.'. 19 Division 2 Amendment of Gas Supply Act 2003 20 25 Act amended in div 2 21 This division amends the Gas Supply Act 2003. 22 26 Amendment of sch 2 (Dictionary) 23 Schedule 2, definition Gas Pipelines Access Law-- 24 Page 15

 


 

National Gas (Queensland) Bill 2008 Part 7 Amendment of Other Acts [s 27] omit, insert-- 1 `Gas Pipelines Access Law means all of the following-- 2 (a) the National Gas (Queensland) Act 2008; 3 (b) the National Gas (Queensland) Law; 4 (c) the National Gas (Queensland) Regulations.'. 5 Division 3 Amendment of Petroleum 6 (Submerged Lands) Act 1982 7 27 Act amended in div 3 8 This division amends the Petroleum (Submerged Lands) Act 9 1982. 10 28 Amendment of s 6A (Relationship of Act to Gas Pipelines 11 Access (Queensland) Law) 12 Section 6A, `Gas Pipelines Access (Queensland) Law'-- 13 omit, insert-- 14 `National Gas (Queensland) Law'. 15 Division 4 Amendment of Duties Act 2001 16 29 Act amended in div 4 17 This division amends the Duties Act 2001. 18 30 Amendment of s 428 (Exemption--particular instruments 19 and transactions under Gas Pipelines Access 20 (Queensland) Act) 21 Section 428(a), `Gas Pipelines Access (Queensland) Act 22 1998, section 54'-- 23 Page 16

 


 

National Gas (Queensland) Bill 2008 Part 7 Amendment of Other Acts [s 31] omit, insert-- 1 `National Gas (Queensland) Act 2008, section 13'. 2 Division 5 Amendment of Federal Courts 3 (State Jurisdiction) Act 1999 4 31 Act amended in div 5 5 This division amends the Federal Courts (State Jurisdiction) 6 Act 1999. 7 32 Amendment of s 3 (Definitions) 8 (1) Section 3, definition relevant State Act, paragraph (e)-- 9 omit. 10 (2) Section 3, definition relevant State Act, paragraphs (f) to (h)-- 11 renumber as paragraphs (e) to (g). 12 Division 6 Amendment of Petroleum Act 1923 13 33 Act amended in div 6 14 This division amends the Petroleum Act 1923. 15 34 Amendment of s 7 (Application of Act) 16 Section 7(3), `Gas Pipelines Access (Queensland) Law'-- 17 omit, insert-- 18 `National Gas (Queensland) Law'. 19 Page 17

 


 

National Gas (Queensland) Bill 2008 Part 7 Amendment of Other Acts [s 35] Division 7 Amendment of Energy Ombudsman 1 Act 2006 2 35 Act amended in div 7 3 This division amends the Energy Ombudsman Act 2006. 4 36 Amendment of s 19 (Restrictions on disputes that can be 5 referred) 6 Section 19(1)(d)(iii), `Gas Pipelines Access (Queensland) 7 Law'-- 8 omit, insert-- 9 `National Gas (Queensland) Law'. 10 Page 18

 


 

National Gas (Queensland) Bill 2008 Attachment to the National Gas (Queensland) 1 Act 2008 2 National Gas (South Australia) Act 2008 3 The attachment to this Act contains the Bill for the National 4 Gas (South Australia) Act 2008. 5 State of Queensland 2008 Page 19

 


 

Advance South Australia National Gas (South Australia) Bill 2008 A BILL FOR An Act to establish a framework to enable third parties to gain access to certain natural gas pipeline services; to repeal the Gas Pipelines Access (South Australia) Act 1997; to amend the Australian Energy Market Commission Establishment Act 2004; and for other purposes. HA GP 177-A OPC 169 1

 


 

National Gas (South Australia) Bill 2008 Contents Contents Part 1--Preliminary 1 Short title 2 Commencement 3 Interpretation 4 Crown to be bound 5 Application to coastal waters 6 Extra-territorial operation Part 2--National Gas (South Australia) Law and National Gas (South Australia) Regulations 7 Application of National Gas Law 8 Application of regulations under National Gas Law 9 Interpretation of some expressions in National Gas (South Australia) Law and National Gas (South Australia) Regulations Part 3--Making of regulations and rules under National Gas Law 10 Definitions 11 General regulation-making power for National Gas Law 12 Specific regulation-making power 13 Making of rules Part 4--Cross vesting of powers 14 Conferral of powers on Commonwealth Minister and Commonwealth bodies to act in this State 15 Conferral of powers on Ministers of participating States and Territories to act in this State 16 Conferral of functions or powers on State Minister Part 5--General 17 Exemption from taxes 18 Actions in relation to cross boundary pipelines 19 Conferral of functions and powers on Commonwealth bodies Part 6--Repeal of Gas Pipelines Access (South Australia) Act 1997 20 Repeal of Gas Pipelines Access (South Australia) Act 1997 Part 7--Amendment of this Act when Offshore Petroleum Act 2006 commences 21 Amendment of this Act when Offshore Petroleum Act 2006 commences Part 8--Amendment of Australian Energy Market Commission Establishment Act 2004 22 Amendment of Australian Energy Market Commission Establishment Act 2004 Schedule--National Gas Law 2 HA GP 177-A OPC 169

 


 

National Gas (South Australia) Bill 2008 Contents Chapter 1--Preliminary Part 1--Citation and interpretation 1 Citation 2 Definitions 3 Meaning of civil penalty provision 4 Meaning of conduct provision 5 Meaning of prospective user 6 Meaning of regulatory obligation or requirement 7 Meaning of regulatory payment 8 Meaning of service provider 9 Passive owners of scheme pipelines deemed to provide or intend to provide pipeline services 10 Things done by 1 service provider to be treated as being done by all of service provider group 11 Local agents of foreign service providers 12 Commissioning of a pipeline 13 Pipeline classification criterion 14 Jurisdictional determination criteria--cross boundary distribution pipelines 15 Pipeline coverage criteria 16 Form of regulation factors 17 Effect of separate and consolidated access arrangements in certain cases 18 Certain extensions to, or expansion of the capacity of, pipelines to be taken to be part of a covered pipeline 19 Expansions of and extensions to covered pipeline by which light regulation services are provided 20 Interpretation generally Part 2--Participating jurisdictions 21 Participating jurisdictions 22 Ministers of participating jurisdictions Part 3--National gas objective and principles Division 1--National gas objective 23 National gas objective Division 2--Revenue and pricing principles 24 Revenue and pricing principles Division 3--MCE policy principles 25 MCE statements of policy principles Part 4--Operation and effect of National Gas Rules 26 National Gas Rules to have force of law 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 28 Manner in which AER must perform or exercise AER economic regulatory functions or powers 29 Delegations 30 Confidentiality Division 2--Search warrants 31 Definitions 32 Authorised person 33 Identity cards 34 Return of identity cards 35 Search warrant 36 Announcement of entry and details of warrant to be given to occupier or other person at premises 37 Immediate entry permitted in certain cases 38 Copies of seized documents 39 Retention and return of seized documents or things HA GP 177-A OPC 169 3

 


 

National Gas (South Australia) Bill 2008 Contents 40 Extension of period of retention of documents or things seized 41 Obstruction of persons authorised to enter Division 3--General information gathering powers 42 Power to obtain information and documents in relation to performance and exercise of functions and powers Division 4--Regulatory information notices and general regulatory information orders Subdivision 1--Interpretation 43 Definitions 44 Meaning of contributing service 45 Meaning of general regulatory information order 46 Meaning of regulatory information notice 47 Division does not limit operation of information gathering powers under Division 3 Subdivision 2--Serving and making of regulatory information instruments 48 Service and making of regulatory information instrument 49 Additional matters to be considered for related provider regulatory information instruments 50 AER must consult before publishing a general regulatory information order 51 Publication requirements for general regulatory information orders 52 Opportunity to be heard before regulatory information notice is served Subdivision 3--Form and content of regulatory information instruments 53 Form and content of regulatory information instrument 54 Further provision about the information that may be described in a regulatory information instrument 55 Further provision about manner in which information must be provided to AER or kept Subdivision 4--Compliance with regulatory information instruments 56 Compliance with regulatory information notice that is served 57 Compliance with general regulatory information order 58 Exemptions from compliance with general regulatory information order 59 Assumptions where there is non-compliance with regulatory information instrument Subdivision 5--General 60 Providing to AER false and misleading information 61 Person cannot rely on duty of confidence to avoid compliance with regulatory information instrument 62 Legal professional privilege not affected 63 Protection against self-incrimination Division 5--Service provider performance reports 64 Preparation of service provider performance reports Division 6--Miscellaneous matters 65 Consideration by the AER of submissions or comments made to it under this Law or the Rules 66 Use of information provided under a notice under Division 3 or a regulatory information instrument 67 AER to inform certain persons of decisions not to investigate breaches, institute proceedings or serve infringement notices 68 AER enforcement guidelines Part 2--Functions and powers of the Australian Energy Market Commission Division 1--General 69 Functions and powers of the AEMC 70 Delegations 71 Confidentiality 72 AEMC must have regard to national gas objective 73 AEMC must have regard to MCE statements of policy principles in relation to Rule making and reviews Division 2--Rule making functions and powers of the AEMC 74 Subject matter for National Gas Rules 75 Rules relating to MCE or Ministers of participating jurisdictions require MCE consent 4 HA GP 177-A OPC 169

 


 

National Gas (South Australia) Bill 2008 Contents 76 AEMC must not make Rules that create criminal offences or impose civil penalties for breaches 77 Documents etc applied, adopted and incorporated by Rules to be publicly available Division 3--Committees, panels and working groups of the AEMC 78 Establishment of committees, panels and working groups Division 4--MCE directed reviews 79 MCE directions 80 Terms of reference 81 Notice of MCE directed review 82 Conduct of MCE directed review Division 5--Other reviews 83 Rule reviews by the AEMC Division 6--Miscellaneous matters 84 AEMC must publish and make available up to date versions of Rules 85 Fees 86 Immunity from personal liability of AEMC officials Part 3--Functions and powers of Ministers of participating jurisdictions 87 Functions and powers of Minister of this participating jurisdiction under this Law 88 Functions and powers of Commonwealth Minister under this Law Part 4--Functions and powers of the NCC 89 Functions and powers of NCC under this Law 90 Confidentiality Part 5--Functions and powers of Tribunal 91 Functions and powers of Tribunal under this Law 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 93 Application to be dealt with in accordance with the Rules 94 NCC may defer consideration of application in certain cases 95 NCC coverage recommendation 96 NCC must not make coverage recommendation if tender approval decision becomes irrevocable 97 Principles governing the making of a coverage recommendation 98 Initial classification decision to be made as part of recommendation 99 Relevant Minister's determination on application 100 Principles governing the making of a coverage determination or decision not to do so 101 Operation and effect of coverage determination Division 2--Coverage revocation determinations 102 Application for a determination that a pipeline no longer be a covered pipeline 103 Application to be dealt with in accordance with the Rules 104 NCC coverage revocation recommendation 105 Principles governing the making of a coverage revocation recommendation 106 Relevant Minister's determination on application 107 Principles governing the making of a coverage revocation determination or decision not to do so 108 Operation and effect of coverage revocation determination 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 110 NCC's decision on light regulation of pipeline services HA GP 177-A OPC 169 5

 


 

National Gas (South Australia) Bill 2008 Contents Subdivision 2--Decisions when pipeline is a covered pipeline 111 Application of Subdivision 112 Application 113 Application to be dealt with in accordance with the Rules 114 NCC's decision on light regulation of pipeline services Subdivision 3--Operation and effect of light regulation determinations 115 When light regulation determinations take effect 116 Submission of limited access arrangement for light regulation services 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 Subdivision 2--On application by persons other than service providers 118 Application (other than by service provider) for revocation of light regulation determinations 119 Decisions on applications made around time of applications for coverage revocation determinations 120 NCC decision on application where no application for a coverage revocation recommendation 121 Operation and effect of decision of NCC under this Division Division 3--Principles governing light regulation determinations 122 Principles governing the making or revoking of light regulation determinations Division 4--Revocation if coverage determination not made 123 Light regulation determination revoked if coverage determination not made 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 Division 6--AER reviews into designated pipelines 125 AER reviews Part 3--Coverage of pipelines the subject of tender process 126 Tender approval pipelines deemed to be covered pipelines Part 4--Coverage following approval of voluntary access arrangement 127 Certain pipelines become covered pipelines on approval of voluntary access arrangement Part 5--Reclassification of pipelines 128 Service provider may apply for reclassification of pipeline 129 Reclassification decision 130 Effect of reclassification decision 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 132 Submission of full access arrangement or revisions to applicable full access arrangements 133 Preventing or hindering access 134 Supply and haulage of natural gas 135 Covered pipeline service provider must comply with queuing requirements 136 Covered pipeline service provider providing light regulation services must not price discriminate Part 2--Structural and operational separation requirements (ring fencing) Division 1--Interpretation 137 Definitions 138 Meaning of marketing staff Division 2--Minimum ring fencing requirements 139 Carrying on of related businesses prohibited 140 Marketing staff and the taking part in related businesses 6 HA GP 177-A OPC 169

 


 

National Gas (South Australia) Bill 2008 Contents 141 Accounts that must be prepared, maintained and kept Division 3--Additional ring fencing requirements 142 Division does not limit operation of Division 2 143 AER ring fencing determinations 144 AER to have regard to likely compliance costs of additional ring fencing requirements 145 Types of ring fencing requirements that may be specified in an AER ring fencing determination Division 4--AER ring fencing exemptions 146 Exemptions from minimum ring fencing requirements Division 5--Associate contracts 147 Service provider must not enter into or give effect to associate contracts that have anti-competitive effect 148 Service provider must not enter into or give effect to associate contracts inconsistent with competitive parity rule Chapter 5--Greenfields pipeline incentives Part 1--Interpretation 149 Definitions 150 International pipeline to be a transmission pipeline for purposes of Chapter Part 2--15-year no-coverage determinations 151 Application for 15-year no-coverage determination for proposed pipeline 152 Application to be dealt with in accordance with the Rules 153 No-coverage recommendation 154 Principles governing the making of a no-coverage recommendation 155 Initial classification decision to be made as part of recommendation 156 Relevant Minister's determination on application 157 Principles governing the making of a 15-year no-coverage determination or decision not to do so 158 Effect of 15-year no-coverage determination 159 Consequences of Minister deciding against making 15-year no-coverage determination for international pipeline Part 3--Price regulation exemptions Division 1--Application for price regulation exemption 160 Application for price regulation exemption Division 2--Recommendations by NCC 161 Application to be dealt with in accordance with the Rules 162 NCC's recommendation 163 General principle governing NCC's recommendation Division 3--Making and effect of price regulation exemption 164 Making of price regulation exemption 165 Principles governing the making of a price regulation exemption 166 Conditions applying to a price regulation exemption 167 Effect of price regulation exemption Division 4--Limited access arrangements 168 Limited access arrangements for pipeline services provided by international pipeline to which a price regulation exemption applies Division 5--Other matters 169 Other obligations to which service provider is subject 170 Service provider must not price discriminate in providing international pipeline services Part 4--Extended or modified application of greenfields pipeline incentive 171 Requirement for conformity between pipeline description and pipeline as constructed 172 Power of relevant Minister to amend pipeline description HA GP 177-A OPC 169 7

 


 

National Gas (South Australia) Bill 2008 Contents Part 5--Early termination of greenfields pipeline incentive 173 Greenfields pipeline incentive may lapse 174 Revocation by consent 175 Revocation for misrepresentation 176 Revocation for breach of condition to which a price regulation exemption is subject 177 Exhaustive provision for termination of greenfields pipeline incentive Chapter 6--Access disputes Part 1--Interpretation and application 178 Definitions 179 Chapter does not limit how disputes about access may be raised or dealt with 180 No price or revenue regulation for access disputes relating to international pipeline services Part 2--Notification of access dispute 181 Notification of access dispute 182 Withdrawal of notification 183 Parties to an access dispute Part 3--Access determinations 184 Determination of access dispute 185 Dispute resolution body may require parties to mediate, conciliate or engage in an alternative dispute resolution process 186 Dispute resolution body may terminate access dispute in certain cases 187 No access determination if dispute resolution body considers there is genuine competition 188 Restrictions on access determinations 189 Access determination must give effect to applicable access arrangement 190 Access determinations and past contributions of capital to fund installations or the construction of new facilities 191 Rules may allow determination that varies applicable access arrangement for installation of a new facility 192 Access determinations need not require the provision of a pipeline service 193 Content of access determinations Part 4--Variation of access determinations 194 Variation of access determination Part 5--Compliance with access determinations 195 Compliance with access determination Part 6--Access dispute hearing procedure 196 Hearing to be in private 197 Right to representation 198 Procedure of dispute resolution body 199 Particular powers of dispute resolution body in a hearing 200 Disclosure of information 201 Power to take evidence on oath or affirmation 202 Failing to attend as a witness 203 Failing to answer questions etc 204 Intimidation etc 205 Party may request dispute resolution body to treat material as confidential 206 Costs 207 Outstanding costs are a debt due to party awarded the costs Part 7--Joint access dispute hearings 208 Definition 209 Joint dispute hearing 210 Consulting the parties 211 Constitution and procedure of dispute resolution body for joint dispute hearings 212 Record of proceedings etc Part 8--Miscellaneous matters 213 Correction of access determinations for clerical mistakes etc 8 HA GP 177-A OPC 169

 


 

National Gas (South Australia) Bill 2008 Contents 214 Reservation of capacity during an access dispute 215 Subsequent service providers bound by access determinations 216 Regulations about the costs to be paid by parties to access dispute Chapter 7--The Natural Gas Services Bulletin Board Part 1--The Bulletin Board Operator 217 The Bulletin Board operator 218 Obligation to establish and maintain the Natural Gas Services Bulletin Board 219 Other functions of the Bulletin Board operator 220 Powers of the Bulletin Board operator 221 Immunity of the Bulletin Board operator 222 Fees for services provided Part 2--Bulletin Board information 223 Obligation to give information to the Bulletin Board operator 224 Person cannot rely on duty of confidence to avoid compliance with obligation 225 Giving to Bulletin Board operator false and misleading information 226 Immunity of persons giving information to the Bulletin Board operator Part 3--Protection of information 227 Protection of information by the Bulletin Board operator 228 Protection of information by employees etc of the Bulletin Board operator Chapter 8--Proceedings under the National Gas Law Part 1--Proceedings generally 229 Instituting civil proceedings under this Law 230 Time limit within which proceedings may be instituted 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 232 Proceedings for declaration that a person is in breach of a conduct provision 233 Actions for damages by persons for breach of conduct provision 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 235 Breach of a civil penalty provision is not an offence 236 Breaches of civil penalty provisions involving continuing failure 237 Conduct in breach of more than 1 civil penalty provision 238 Persons involved in breach of civil penalty provision or conduct provision 239 Attempt to breach a civil penalty provision 240 Civil penalties payable to the Commonwealth Part 4--Judicial review of decisions under this Law, the Regulations and the Rules 241 Definition 242 Applications for judicial review of decisions of the AEMC 243 Applications for judicial review of decisions of the Bulletin Board operator Part 5--Merits review and other non-judicial review Division 1--Interpretation 244 Definitions Division 2--Merits review for reviewable regulatory decisions 245 Applications for review 246 Grounds for review 247 By when an application must be made 248 Tribunal must not grant leave unless serious issue to be heard and determined 249 Leave must be refused if application is about an error relating to revenue amounts below specified threshold 250 Tribunal must refuse to grant leave if submission not made or is made late 251 Tribunal may refuse to grant leave to service provider in certain cases HA GP 177-A OPC 169 9

 


 

National Gas (South Australia) Bill 2008 Contents 252 Effect of application on operation of reviewable regulatory decisions 253 Intervention by others in a review without leave 254 Leave for reviewable regulatory decision process participants 255 Leave for user or consumer intervener 256 Interveners may raise new grounds for review 257 Parties to a review under this Division 258 Matters that parties to a review may and may not raise in a review 259 Tribunal must make determination 260 Target time limit for Tribunal for making a determination under this Division 261 Matters to be considered by Tribunal in making determination 262 Assistance from NCC in certain cases Division 3--Tribunal review of AER information disclosure decisions under section 329 263 Application for review 264 Exclusion of public in certain cases 265 Determination in the review 266 Tribunal must be taken to have affirmed decision if decision not made within time 267 Assistance from the AER in certain cases Division 4--General 268 Costs in a review 269 Amount of costs 270 Review of Part Part 6--Enforcement of access determinations 271 Enforcement of access determinations 272 Consent injunctions 273 Interim injunctions 274 Factors relevant to granting a restraining injunction 275 Factors relevant to granting a mandatory injunction 276 Discharge or variation of injunction or other order Part 7--Infringement notices 277 Power to serve notice 278 Form of notice 279 Infringement penalty 280 AER cannot institute proceedings while infringement notice on foot 281 Late payment of penalty 282 Withdrawal of notice 283 Refund of infringement penalty 284 Payment expiates breach of civil penalty provision 285 Payment not to have certain consequences 286 Conduct in breach of more than 1 civil penalty provision Part 8--Further provision for corporate liability for breaches of this Law etc 287 Definition 288 Offences and breaches by corporations 289 Corporations also in breach if officers and employees are in breach Chapter 9--The making of the National Gas Rules Part 1--General Division 1--Interpretation 290 Definitions Division 2--Rule making tests 291 Application of national gas objective 292 AEMC must take into account form of regulation factors in certain cases 293 AEMC must take into account revenue and pricing principles in certain cases Part 2--Initial National Gas Rules 294 South Australian Minister to make initial National Gas Rules 10 HA GP 177-A OPC 169

 


 

National Gas (South Australia) Bill 2008 Contents Part 3--Procedure for the making of a Rule by the AEMC 295 Initiation of making of a Rule 296 AEMC may make more preferable Rule in certain cases 297 AEMC may make Rules that are consequential to a Rule request 298 Content of requests for a Rule 299 Waiver of fee for Rule requests 300 Consolidation of 2 or more Rule requests 301 Initial consideration of request for Rule 302 AEMC may request further information from Rule proponent in certain cases 303 Notice of proposed Rule 304 Publication of non-controversial or urgent final Rule determination 305 "Fast track" Rules where previous public consultation by gas market regulatory body or an AEMC review 306 Right to make written submissions and comments 307 AEMC may hold public hearings before draft Rule determination 308 Draft Rule determination 309 Right to make written submissions and comments in relation to draft Rule determination 310 Pre-final Rule determination hearing may be held 311 Final Rule determination 312 Further draft Rule determination may be made where proposed Rule is a proposed more preferable Rule 313 Making of Rule 314 Operation and commencement of Rule 315 Rule that is made to be published on website and made available to the public 316 Evidence of the National Gas Rules Part 4--Miscellaneous provisions relating to rule making by the AEMC 317 Extension of periods of time in Rule making procedure 318 AEMC may extend period of time for making of final Rule determination for further consultation 319 AEMC may publish written submissions and comments unless confidential 320 AEMC must publicly report on Rules not made within 12 months of public notification of requests Chapter 10--General Part 1--Provisions relating to applicable access arrangements 321 Protection of certain pre-existing contractual rights 322 Service provider may enter into agreement for access different from applicable access arrangement 323 Applicable access arrangements continue to apply regardless of who provides 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 325 Disclosure with prior written consent is authorised 326 Disclosure for purposes of court and tribunal proceedings and to accord natural justice 327 Disclosure of information given to the AER with confidential information omitted 328 Disclosure of information given in confidence does not identify anyone 329 Disclosure of confidential information authorised if detriment does not outweigh public benefit Division 2--Disclosure of confidential information held by relevant Ministers, NCC and AEMC 330 Definitions 331 Confidentiality of information received for scheme procedure purpose and for making of scheme decision Part 3--Miscellaneous 332 Failure to make a decision under this Law or the Rules within time does not invalidate the decision 333 Withdrawal of applications relating to coverage or reclassification 334 Notification of Ministers of participating jurisdictions of receipt of application 335 Relevant Minister may request NCC to give information or assistance 336 Savings and transitionals Schedule 1--Subject matter for the National Gas Rules HA GP 177-A OPC 169 11

 


 

National Gas (South Australia) Bill 2008 Contents Schedule 2--Miscellaneous provisions relating to interpretation Part 1--Preliminary 1 Displacement of Schedule by contrary intention Part 2--General 2 Law to be construed not to exceed legislative power of Legislature 3 Vacant provision 4 Material that is, and is not, part of Law 5 References to particular Acts and to enactments 6 References taken to be included in Act or Law citation etc 7 Interpretation best achieving Law's purpose 8 Use of extrinsic material in interpretation 9 Compliance with forms Part 3--Terms and references 10 Definitions 11 Provisions relating to defined terms and gender and number 12 Meaning of may and must etc 13 Words and expressions used in statutory instruments 14 References to Minister 15 Production of records kept in computers etc 16 References to this jurisdiction to be implied 17 References to officers and holders of offices 18 Reference to certain provisions of Law Part 4--Functions and powers 19 Performance of statutory functions 20 Power to make instrument or decision includes power to amend or repeal 21 Matters for which statutory instruments may make provision 22 Presumption of validity and power to make 23 Appointments may be made by name or office 24 Acting appointments 25 Powers of appointment imply certain incidental powers 26 Delegation 27 Exercise of powers between enactment and commencement Part 5--Distance and time 28 Matters relating to distance and time Part 6--Service of documents 29 Service of documents and meaning of service by post etc 30 Meaning of service by post etc Part 7--Evidentiary matters Division 1--Publication on websites 31 Definitions 32 Publication of decisions on websites Division 2--Evidentiary certificates 33 Definitions 34 Evidentiary certificates--AER 35 Evidentiary certificates--AEMC 36 Evidentiary certificates--NCC 37 Evidentiary certificates--relevant Minister and Commonwealth Minister 38 Evidentiary certificates--Bulletin Board operator Part 8--Commencement of this Law and statutory instruments 39 Time of commencement of this Law or a provision of this Law 40 Time of commencement of a Rule 12 HA GP 177-A OPC 169

 


 

National Gas (South Australia) Bill 2008 Contents Part 9--Effect of repeal, amendment or expiration 41 Time of Law, the Regulations or Rules ceasing to have effect 42 Repealed Law, Regulation or Rule provisions not revived 43 Saving of operation of repealed Law, Regulation or Rule provisions 44 Continuance of repealed provisions 45 Law and amending Acts to be read as one Part 10--Offences under this Law 46 Penalty at foot of provision 47 Penalty other than at foot of provision 48 Indictable offences and summary offences 49 Double jeopardy 50 Aiding and abetting, attempts etc Part 11--Instruments under this Law 51 Schedule applies to statutory instruments 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 53 Invalid Rules Schedule 3--Savings and transitionals Part 1--General 1 Definitions 2 Schedule subject to jurisdictional transitional arrangements in jurisdictional legislation Part 2--General savings provision 3 Saving of operation of old access law and Gas Code Part 3--Classification and coverage of pipelines 4 Pending applications for the classification of pipelines lapse 5 Old scheme coverage determinations 6 Old scheme covered transmission pipelines 7 Old scheme covered distribution pipelines 8 Pending coverage applications under old scheme (before NCC recommendation) 9 Pending relevant Minister decisions in relation to coverage under old scheme 10 Pending relevant Minister decisions in relation to coverage that are reviewed under old scheme 11 Pending old scheme coverage determinations where no applications for review under old scheme 12 Pending old scheme coverage determinations where applications for review under old scheme on foot 13 Pending old scheme no-coverage determinations where no applications for review under old scheme 14 Pending old scheme no-coverage determinations where applications for review under old scheme on foot 15 Pending coverage revocation applications under old scheme (before NCC recommendation) 16 Pending relevant Minister decisions in relation to coverage revocation under old scheme 17 Pending relevant Minister decisions in relation to coverage revocation that are reviewed under old scheme 18 Pending old scheme coverage revocation determinations where no applications for review under old scheme 19 Pending old scheme coverage revocation determinations where applications for review under old scheme on foot 20 Pending old scheme coverage non-revocation determinations where no applications for review under old scheme 21 Pending old scheme coverage non-revocation determinations where applications for review under old scheme on foot 22 Binding no-coverage determinations 23 Pending applications for binding no-coverage determinations (before NCC recommendation) 24 Pending relevant Minister decisions for binding no-coverage determinations under old scheme 25 Pending relevant Minister decisions in relation to binding no-coverage determinations that are reviewed under old scheme HA GP 177-A OPC 169 13

 


 

National Gas (South Australia) Bill 2008 Contents Part 4--Access arrangements 26 Current access arrangements (other than old scheme limited access arrangements) 27 Old scheme limited access arrangements 28 Access arrangements submitted but not approved or rejected before repeal of old scheme 29 Access arrangement revisions submitted but not approved or rejected before repeal of old scheme 30 Certain provisions of the Gas Code to continue to apply to current and proposed access arrangements 31 Certain decisions relating to certain access arrangements are reviewable regulatory decisions for purposes of Chapter 8 Part 5 of the Law 32 Limited access arrangements submitted but not approved before repeal of old scheme 33 Extensions and expansions policies 34 Queuing policies Part 5--Price regulation exemptions 35 Old scheme price regulation exemptions 36 Pending applications for price regulation exemptions 37 Pending Commonwealth Minister decisions for price regulation exemptions Part 6--Structural and operational separation (ring fencing) 38 Definitions 39 Compliance with certain old scheme ring fencing requirements sufficient compliance for 6 month period 40 Existing waivers of ring fencing obligations 41 Additional ring fencing obligations Part 7--Access disputes 42 Non-finalised access disputes Part 8--Investigations and proceedings 43 Investigations into breaches and possible breaches of the old access law or Gas Code 44 AER may conduct investigations into breaches or possible breaches of Gas Pipelines Access Law not investigated by a relevant Regulator 45 AER may bring proceedings in relation to breaches of old access law and Gas Code Part 9--Associate contracts 46 Pending associate contract approvals that are approved after commencement day 47 Pending associate contracts approvals that are not approved 48 Approved associate contracts Part 10--Other 49 Pending and final tender approval requests lapse 50 Decisions approving final approval requests 51 Rights under certain change of law provisions in agreements or deeds not to be triggered 52 References to relevant Regulator in access arrangements 53 Old scheme classifications and scheme participant determinations The Parliament of South Australia enacts as follows: Part 1--Preliminary 1--Short title This Act may be cited as the National Gas (South Australia) Act 2008. 2--Commencement 5 (1) This Act will come into operation on a day to be fixed by proclamation. 14 HA GP 177-A OPC 169

 


 

National Gas (South Australia) Bill 2008 Preliminary--Part 1 (2) The Governor may, in acting under section 7(3) of the Acts Interpretation Act 1915, fix different days for different provisions of the Schedule to come into operation. (3) Section 7(5) of the Acts Interpretation Act 1915 does not apply to this Act or a provision of this Act. 5 3--Interpretation (1) In this Act-- National Gas (South Australia) Law means the provisions applying because of section 7 of this Act; National Gas (South Australia) Regulations means the provisions applying because 10 of section 8 of this Act. (2) Words and expressions used in the National Gas (South Australia) Law 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. 15 4--Crown to be bound This Act, the National Gas (South Australia) Law and the National Gas (South Australia) Regulations bind the Crown, not only in right of South Australia but also, so far as the legislative power of the Parliament permits, the Crown in all its other capacities. 20 5--Application to coastal waters (1) This Act, the National Gas (South Australia) Law and the National Gas (South Australia) Regulations apply in the coastal waters of this State as if the coastal waters were within the limits of the State. (2) In this section-- 25 adjacent area in respect of the State means the adjacent area of this jurisdiction under the National Gas (South Australia) Law (as defined in section 9(1) of this Act); 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 30 It is the intention of the Parliament that this Act, the National Gas (South Australia) Law and the National Gas (South Australia) Regulations should, so far as possible, operate to the full extent of the extra-territorial legislative power of the State. Part 2--National Gas (South Australia) Law and National Gas (South Australia) Regulations 35 7--Application of National Gas Law The National Gas Law set out in the Schedule to this Act, as in force for the time being-- (a) applies as a law of South Australia; and HA GP 177-A OPC 169 15

 


 

National Gas (South Australia) Bill 2008 Part 2--National Gas (South Australia) Law and National Gas (South Australia) Regulations (b) as so applying may be referred to as the National Gas (South Australia) Law. Note-- This section has effect to the extent to which the provisions of the Schedule have come into operation--see section 2(2). 5 8--Application of regulations under National Gas Law The regulations in force for the time being under Part 3 of this Act-- (a) apply as regulations in force for the purposes of the National Gas (South Australia) Law; and (b) as so applying may be referred to as the National Gas (South Australia) 10 Regulations. 9--Interpretation of some expressions in National Gas (South Australia) Law and National Gas (South Australia) Regulations (1) In the National Gas (South Australia) Law and the National Gas (South Australia) Regulations-- 15 adjacent area of another participating jurisdiction means the area that is identified in section 5A of the Petroleum (Submerged Lands) Act 1967 of the Commonwealth as being the adjacent area in respect of a State other than this State or in respect of the Northern Territory; adjacent area of this jurisdiction means the area that is identified in section 5A of the 20 Petroleum (Submerged Lands) Act 1967 of the Commonwealth as being the adjacent area in respect of this State; Court means the Supreme Court of South Australia; designated Minister means the Minister to whom the administration of this Act has been committed; 25 Legislature of this jurisdiction means the Parliament of South Australia; National Gas Law or this Law means the National Gas (South Australia) Law; this jurisdiction means the State of South Australia. (2) The Acts Interpretation Act 1915 does not apply to the National Gas (South Australia) Law or the National Gas (South Australia) Regulations. 30 Part 3--Making of regulations and rules under National Gas Law 10--Definitions In this Part-- National Gas Law means the National Gas Law set out in the Schedule to this Act as 35 in force for the time being. 11--General regulation-making power for National Gas Law (1) The Governor may make such regulations as are contemplated by, or necessary or expedient for the purposes of, the National Gas Law. 16 HA GP 177-A OPC 169

 


 

National Gas (South Australia) Bill 2008 Making of regulations and rules under National Gas Law--Part 3 (2) Without limiting subsection (1), the regulations may prescribe fees in respect of any matter under the National Gas Law, and provide for the waiver or refund of such fees. (3) Regulations under this Part may-- (a) be of general or limited application; 5 (b) vary according to the persons, times, places or 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 pipelines to be 10 designated pipelines for the purposes of the definition of designated pipeline in section 2 of the National Gas Law, the Governor cannot make another regulation that prescribes any other pipeline to be a designated pipeline. (5) Regulations under this Part may be made only on the unanimous recommendation of the Ministers of the participating jurisdictions. 15 (6) Section 10 of the Subordinate Legislation Act 1978 does not apply to a regulation under this Part. 12--Specific regulation-making power (1) Without limiting the generality of section 11, the regulations may deal with matters of a transitional nature relating to the transition from the application of provisions of the 20 old access law or the Gas Code to the application of provisions of the National Gas 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 day on which the regulations containing the provision are made, not 25 being a time earlier than the commencement of this subsection. (3) If a provision of a regulation 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 made, 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 30 Minister of a participating jurisdiction or an entity involved in the administration of the old access law, the Gas Code or the National Gas Law) existing before the date of making of those regulations; or (b) to impose liabilities on any person (other than liabilities imposed on a Minister of a participating jurisdiction or an entity involved in the 35 administration of the old access law, the Gas Code or the National Gas Law) in respect of anything done or omitted to be done before the date of making of those regulations. (4) In this section-- Gas Code means the National Third Party Access Code for Natural Gas Pipelines 40 Systems set out in Schedule 2 of the Gas Pipelines Access (South Australia) Act 1997 as in force from time to time before the commencement of this section; matters of a transitional nature includes matters of an application or savings nature; HA GP 177-A OPC 169 17

 


 

National Gas (South Australia) Bill 2008 Part 3--Making of regulations and rules under National Gas Law National Gas Law means the National Gas Law set out in the Schedule to this Act as in force from time to time after the commencement of this section, or the Rules as in force from time to time after the commencement of this section; old access law means Schedule 1 to the Gas Pipelines Access (South Australia) 5 Act 1997 as in force from time to time before the commencement of this section. 13--Making of rules The Subordinate Legislation Act 1978 does not apply to Rules made under the National Gas Law. Part 4--Cross vesting of powers 10 14--Conferral of powers on Commonwealth Minister and Commonwealth bodies to act in this State (1) The Commonwealth Minister and the Commonwealth bodies 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 15 another participating jurisdiction. (2) In this section-- Commonwealth bodies means any of the following: (a) AER; (b) NCC; 20 (c) the Tribunal. 15--Conferral of powers on Ministers of participating States and Territories to act in this State The Minister of a 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 25 on the Minister by the national gas legislation of another participating jurisdiction. 16--Conferral of functions or powers on State Minister If the national gas legislation of another participating jurisdiction confers a function or power on the Minister, the Minister-- (a) may perform that function or exercise that power; and 30 (b) may do all things necessary or convenient to be done in connection with the performance or exercise of that function or power. Part 5--General 17--Exemption from taxes (1) Any stamp duty or other tax imposed by or under a law of this State is not payable in 35 relation to-- (a) an exempt matter; or 18 HA GP 177-A OPC 169

 


 

National Gas (South Australia) Bill 2008 General--Part 5 (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. (2) In this section-- 5 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 ring fencing requirements of any national gas legislation or for the purpose of the separation of certain businesses or business activities from 10 other businesses or business activities of a person as required by an AER ring fencing determination; and (b) that the Minister and the Treasurer declare from time to time by notice in the Gazette to be an exempt matter for the purposes of this section. 18--Actions in relation to cross boundary pipelines 15 (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 (b) by the Court within the meaning of that legislation in relation to action taken 20 by, or in relation to, a relevant Minister, is taken also to be taken under the national gas legislation of 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 of that other 25 legislation; or (d) by the Court within the meaning of that 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 30 question any action, or 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. (3) A reference in this section-- 35 (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 reference to a purported decision or determination that is purportedly made. HA GP 177-A OPC 169 19

 


 

National Gas (South Australia) Bill 2008 Part 5--General (4) In this section-- cross boundary pipeline means-- (a) a cross boundary transmission pipeline; or (b) a cross boundary distribution pipeline. 5 19--Conferral of functions and powers on Commonwealth bodies (1) Clause 2 of Schedule 2 to the National Gas (South Australia) Law has effect in relation to the operation of any provision of this Act, or any regulation made under this Act, as if the provision or regulation formed part of the National Gas (South Australia) Law. 10 (2) Subsection (1) does not limit the effect that a provision or regulation would validly have apart from the subsection. Part 6--Repeal of Gas Pipelines Access (South Australia) Act 1997 20--Repeal of Gas Pipelines Access (South Australia) Act 1997 15 The Gas Pipelines Access (South Australia) Act 1997 is repealed. Part 7--Amendment of this Act when Offshore Petroleum Act 2006 commences 21--Amendment of this Act when Offshore Petroleum Act 2006 commences (1) This Act is amended in the manner specified by subsection (2) (and a reference in this 20 section to a provision is a reference to a provision of this Act). (2) Section 9(1), definitions of adjacent area of another participating jurisdiction and adjacent area of this jurisdiction--delete these definitions and substitute: adjacent area of another participating jurisdiction means the offshore area of a State other than this State or of the Northern Territory within the 25 meaning given in section 7 of the Offshore 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; 30 Part 8--Amendment of Australian Energy Market Commission Establishment Act 2004 22--Amendment of Australian Energy Market Commission Establishment Act 2004 (1) The Australian Energy Market Commission Establishment Act 2004 is amended in the 35 manner specified by this section (and a reference in this section to a provision is a reference to a provision of that Act). 20 HA GP 177-A OPC 169

 


 

National Gas (South Australia) Bill 2008 Amendment of Australian Energy Market Commission Establishment Act 2004--Part 8 (2) Section 3(1), definitions of Gas Pipelines Access Application Act, Gas Pipelines Access Law and Gas Pipelines Access Regulations--delete the definitions (3) Section 3(1), definition of National Energy Law, paragraphs (e) to (h) (inclusive)-- delete the paragraphs and substitute: 5 (e) a National Gas Application Act; or (f) the National Gas Law; or (g) the National Gas Regulations; or (h) the National Gas Rules; (4) Section 3(1), definitions of National Third Party Access Code for Natural Gas 10 Pipelines Systems and natural gas--delete the definitions and substitute: National Gas Application Act means-- (a) the National Gas (South Australia) Act 2008; or (b) the Australian Energy Market Act 2004 of the Commonwealth; or (c) any other Act of a State or Territory of the Commonwealth that 15 applies the National Gas Law set out in the Schedule to the National Gas (South Australia) Act 2008, with or without modification and whether as in force at a particular time or as in force for the time being, as a law of that jurisdiction; National Gas Law means the National Gas Law set out in the Schedule to the 20 National Gas (South Australia) Act 2008 applying as a law of South Australia or as applied, with or without modification and whether as in force at a particular time or as in force for the time being, as a law of another jurisdiction; National Gas Regulations means regulations that, under a National Gas 25 Application Act, apply as regulations for the purposes of a National Gas Law; National Gas Rules means the National Gas Rules as defined in section 2 of the National Gas Law; natural gas has the same meaning as in the National Gas Law; Schedule--National Gas Law 30 Chapter 1--Preliminary Part 1--Citation and interpretation 1--Citation This law may be cited as the National Gas Law. 2--Definitions 35 In this Law-- 15-year no-coverage determination means a determination of a relevant Minister under Chapter 5 Part 2; HA GP 177-A OPC 169 21

 


 

National Gas (South Australia) Bill 2008 Schedule--National Gas Law 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 5 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; 10 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; 15 AER economic regulatory decision means a decision (however described) of the AER under this Law or the 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 20 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-- 25 (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 30 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-- 35 (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; 40 approved associate contract means an associate contract approved by the AER under an associate contract decision; 22 HA GP 177-A OPC 169

 


 

National Gas (South Australia) Bill 2008 National Gas Law--Schedule 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-- 5 (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 10 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 15 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-- 20 (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 25 the purposes of section 217; 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-- 30 (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; 35 (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; 40 civil penalty provision has the meaning given by section 3; HA GP 177-A OPC 169 23

 


 

National Gas (South Australia) Bill 2008 Schedule--National Gas Law 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: 5 (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 10 voluntarily submitted to the AER for approval by that provider will apply, if approved; and (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; 15 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; 20 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 25 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 30 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 35 partly situated in the jurisdictional areas of 2 or more participating jurisdictions; designated pipeline means a pipeline prescribed by the Regulations to be a designated pipeline; Note-- 40 A light regulation determination cannot be made in respect of pipeline services provided by means of a designated pipeline: see sections 109 and 111. 24 HA GP 177-A OPC 169

 


 

National Gas (South Australia) Bill 2008 National Gas Law--Schedule 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 5 range of a covered pipeline; dispute resolution body means the AER; 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 10 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 15 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; 20 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 25 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 30 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 35 (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 40 section 311; foreign company has the same meaning as in the Corporations Act 2001 of the Commonwealth; HA GP 177-A OPC 169 25

 


 

National Gas (South Australia) Bill 2008 Schedule--National Gas Law foreign source means-- (a) a source beyond the outer limits of all of the following: (i) the adjacent area of this jurisdiction; (ii) the adjacent area of another participating jurisdiction; or 5 (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-- 10 (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-- 15 (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 20 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 25 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; 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 30 Australia) Act 1997 of South Australia as in force from time to time before the commencement of section 20 of the National Gas (South Australia) Act 2008 of South Australia; gas market operator means VENCorp or any other person or body prescribed by the Regulations to be a gas market operator; 35 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 40 natural gas; 26 HA GP 177-A OPC 169

 


 

National Gas (South Australia) Bill 2008 National Gas Law--Schedule initial classification decision means a decision of the NCC under section 98 or 155; initial National Gas Rules means the National Gas Rules made under section 294; 5 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 10 (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; light regulation determination means a determination of the NCC under Chapter 3 Part 2 Division 1; 15 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 20 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 25 (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 30 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 35 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; 40 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; HA GP 177-A OPC 169 27

 


 

National Gas (South Australia) Bill 2008 Schedule--National Gas Law 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 5 (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 10 (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 15 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 20 (South Australia) Act 2008 of South Australia as applied as a law of a 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 25 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 30 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 35 (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-- 40 (a) a pipeline service; or 28 HA GP 177-A OPC 169

 


 

National Gas (South Australia) Bill 2008 National Gas Law--Schedule (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 5 Rules in relation to natural gas services; 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 10 (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 15 (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; 20 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 25 (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; 30 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 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 35 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; HA GP 177-A OPC 169 29

 


 

National Gas (South Australia) Bill 2008 Schedule--National Gas Law old access law means Schedule 1 to the Gas Pipelines Access (South Australia) Act 1997 of South Australia as in force from time to time before the commencement of section 20 of the National Gas (South Australia) Act 2008 of South Australia; 5 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-- 10 (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 15 (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; pipeline means-- (a) a pipe or system of pipes for the haulage of natural gas, and any 20 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 25 (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 30 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 35 (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; 40 pipeline classification criterion has the meaning given by section 13; pipeline coverage criteria has the meaning given by section 15; 30 HA GP 177-A OPC 169

 


 

National Gas (South Australia) Bill 2008 National Gas Law--Schedule 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; 5 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; 10 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 15 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; 20 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-- 25 (i) under an access arrangement decision; or (ii) in accordance with the Rules; 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 30 (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; 35 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; 40 producer means a person who carries on a business of producing natural gas; HA GP 177-A OPC 169 31

 


 

National Gas (South Australia) Bill 2008 Schedule--National Gas Law 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; 5 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; reference tariff means a tariff or charge for a reference service-- 10 (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; 15 Regulations means the regulations made under Part 3 of the National Gas (South Australia) Act 2008 of South Australia that apply as a law of this jurisdiction; regulatory information instrument means-- (a) a general regulatory information order; or 20 (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 25 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 30 jurisdiction--the designated Minister; 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 35 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; 40 relevant Regulator has the same meaning as in section 2 of the old access law; 32 HA GP 177-A OPC 169

 


 

National Gas (South Australia) Bill 2008 National Gas Law--Schedule 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 5 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 10 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; 15 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 20 (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; 25 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 30 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 35 Tribunal or a Division of the Tribunal performing functions of the Tribunal; 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 HA GP 177-A OPC 169 33

 


 

National Gas (South Australia) Bill 2008 Schedule--National Gas Law (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. 5 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 10 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 4--Meaning of conduct provision A conduct provision is-- 15 (a) a provision of this Law specified in an item in the Table at the foot of this section; or 34 HA GP 177-A OPC 169

 


 

National Gas (South Australia) Bill 2008 National Gas Law--Schedule (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 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 10 a pipeline service already provided to them under-- (a) a contract; or (b) an access determination. 6--Meaning of regulatory obligation or requirement (1) A regulatory obligation or requirement is-- 15 (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 20 (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 25 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 30 (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 HA GP 177-A OPC 169 35

 


 

National Gas (South Australia) Bill 2008 Schedule--National Gas Law (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 5 subparagraphs (ii) to (iv)), that materially affects the provision, by a service provider, of pipeline services to which an applicable access arrangement applies. (2) A regulatory obligation or requirement does not include an obligation or requirement to pay a fine, penalty or compensation-- 10 (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 15 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 20 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. 25 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 30 (b) intends to own, control or operate, a pipeline or scheme pipeline, or any part of a pipeline or scheme pipeline. 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 35 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 40 (b) a part of a pipeline or scheme pipeline, 36 HA GP 177-A OPC 169

 


 

National Gas (South Australia) Bill 2008 National Gas Law--Schedule 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 5 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 10 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 15 (b) under this Law or the Rules a service provider is required or allowed to do a thing. (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 20 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 25 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. 30 (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 35 (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 40 provider is required by or under this Law to do; and HA GP 177-A OPC 169 37

 


 

National Gas (South Australia) Bill 2008 Schedule--National Gas Law (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. 12--Commissioning of a pipeline 5 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-- 10 (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 15 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; 20 (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; 25 (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. 30 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 35 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; 38 HA GP 177-A OPC 169

 


 

National Gas (South Australia) Bill 2008 National Gas Law--Schedule (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 5 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. 10 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 15 than the market for the pipeline services provided by means of the pipeline; (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 20 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 25 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 30 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 35 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 40 demand, in a market for a pipeline service in which a service provider provides that service; HA GP 177-A OPC 169 39

 


 

National Gas (South Australia) Bill 2008 Schedule--National Gas Law (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 5 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 10 (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-- 15 (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 20 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. 18--Certain extensions to, or expansion of the capacity of, pipelines to be taken to be part of a covered pipeline 25 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, 30 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 35 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 40 writing. 40 HA GP 177-A OPC 169

 


 

National Gas (South Australia) Bill 2008 National Gas Law--Schedule 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. Part 2--Participating jurisdictions 5 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. 10 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 15 (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 20 Commonwealth; and (d) the Ministers of the Crown in right of the other participating jurisdictions administering the laws of those jurisdictions that substantially correspond to Part 2 of the National Gas (South Australia) Act 2008 of South Australia. 25 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 30 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) 35 to (7). HA GP 177-A OPC 169 41

 


 

National Gas (South Australia) Bill 2008 Schedule--National Gas Law (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 5 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-- 10 (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 (c) the efficient use of the pipeline. (4) Regard should be had to the capital base with respect to a pipeline adopted-- 15 (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. 20 (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 25 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 30 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 35 (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. (3) As soon as practicable after issuing a statement of policy principles, the MCE must give a copy of the statement to the AEMC. 42 HA GP 177-A OPC 169

 


 

National Gas (South Australia) Bill 2008 National Gas Law--Schedule (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 5 26--National Gas Rules to have force of law The National Gas Rules have the force of law in this jurisdiction. Chapter 2--Functions and powers of gas market regulatory entities Part 1--Functions and powers of the Australian Energy 10 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 15 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 20 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 25 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 30 (g) to approve compliance programs of service providers relating to compliance by service providers with this Law or the Rules; and (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 35 for or in connection with the performance of its functions. HA GP 177-A OPC 169 43

 


 

National Gas (South Australia) Bill 2008 Schedule--National Gas Law 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 5 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 10 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 15 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". 20 29--Delegations Any delegation by the AER under section 44AAH of the Trade Practices Act 1974 of the Commonwealth extends to, and has effect for the purposes of, this Law, the Regulations and the Rules. 30--Confidentiality 25 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. Note-- See also Chapter 10 Part 2 Division 1. 30 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 35 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. 44 HA GP 177-A OPC 169

 


 

National Gas (South Australia) Bill 2008 National Gas Law--Schedule (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. 5 (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-- 10 (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. 34--Return of identity cards If a person to whom an identity card has been issued ceases to be an 15 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 20 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 25 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. 30 (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 35 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; HA GP 177-A OPC 169 45

 


 

National Gas (South Australia) Bill 2008 Schedule--National Gas Law (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; 5 (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-- 10 (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 15 (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. 20 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. 25 (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 30 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). 35 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 40 (b) that the effective execution of the search warrant is not frustrated. 46 HA GP 177-A OPC 169

 


 

National Gas (South Australia) Bill 2008 National Gas Law--Schedule 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 5 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 10 in accordance with the warrant, 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. 15 (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 20 (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 25 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. 30 (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 (b) the total period of retention does not exceed 12 months; and 35 (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. HA GP 177-A OPC 169 47

 


 

National Gas (South Australia) Bill 2008 Schedule--National Gas 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 5 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 10 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; 15 (b) in the case of a body corporate--$10 000. 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 20 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-- 25 (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 30 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: 35 (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. 40 Maximum penalty: (a) in the case of a natural person--$2 000; 48 HA GP 177-A OPC 169

 


 

National Gas (South Australia) Bill 2008 National Gas Law--Schedule (b) in the case of a body corporate--$10 000. (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-- 5 (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, 10 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 15 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. 20 (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. 25 (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 (b) produce a document prepared for the purposes of a meeting of the 30 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. 35 (10) A person incurs, by complying with a relevant notice, no liability for breach of contract, breach of confidence or any other civil wrong. HA GP 177-A OPC 169 49

 


 

National Gas (South Australia) Bill 2008 Schedule--National Gas Law Division 4--Regulatory information notices and general regulatory information orders Subdivision 1--Interpretation 43--Definitions 5 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 10 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 15 (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. (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 20 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 25 (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 30 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. 50 HA GP 177-A OPC 169

 


 

National Gas (South Australia) Bill 2008 National Gas Law--Schedule 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 5 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. 46--Meaning of regulatory information notice 10 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; 15 (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. 20 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 25 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 30 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 35 (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. HA GP 177-A OPC 169 51

 


 

National Gas (South Australia) Bill 2008 Schedule--National Gas Law 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. 5 (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 10 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 15 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 20 (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 25 whether it is reasonably necessary to serve 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 30 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 35 (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-- 40 (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 52 HA GP 177-A OPC 169

 


 

National Gas (South Australia) Bill 2008 National Gas Law--Schedule (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 5 (e) any other matter the AER considers relevant. (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 10 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 15 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 20 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. 25 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 30 published in a newspaper circulating generally throughout Australia as soon as practicable after it is made. 52--Opportunity to be heard before regulatory information notice is served (1) The AER, before serving a regulatory information notice, must-- 35 (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. HA GP 177-A OPC 169 53

 


 

National Gas (South Australia) Bill 2008 Schedule--National Gas Law (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 5 (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 10 (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 15 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 to the AER as to whether the AER should serve the regulatory information notice on them; and 20 (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 25 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 30 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 35 (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 54 HA GP 177-A OPC 169

 


 

National Gas (South Australia) Bill 2008 National Gas Law--Schedule (b) may specify the manner and form in which the information described in the instrument is required to be-- (i) provided to the AER; (ii) prepared, maintained or kept; and 5 (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 10 (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 15 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 20 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 25 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; (d) information to enable the AER to verify compliance with any 30 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 35 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 40 specified event or state of affairs; HA GP 177-A OPC 169 55

 


 

National Gas (South Australia) Bill 2008 Schedule--National Gas Law (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 5 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 10 instrument is served or published; or (iii) as amended from time to time; Example-- The AER may require a scheme pipeline service provider to provide information in a form and manner that complies 15 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-- 20 (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 25 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 30 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. 58--Exemptions from compliance with general regulatory information 35 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. 40 (2) An exemption under this section must be in writing. 56 HA GP 177-A OPC 169

 


 

National Gas (South Australia) Bill 2008 National Gas Law--Schedule 59--Assumptions where there is non-compliance with regulatory information instrument (1) This section applies if-- (a) under a regulatory information instrument the AER-- 5 (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 10 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 15 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). (2) Without limiting sections 56 and 57 and despite anything to the contrary in 20 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 25 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 30 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: 35 (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 40 on the ground of any duty of confidence. HA GP 177-A OPC 169 57

 


 

National Gas (South Australia) Bill 2008 Schedule--National Gas Law (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. 62--Legal professional privilege not affected A regulatory information instrument, and sections 56 and 57, are not to be 5 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 10 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 15 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 20 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 25 performance or operational performance of 1 or more scheme pipeline service providers in providing pipeline services by means of a scheme pipeline. 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 30 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 35 (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 58 HA GP 177-A OPC 169

 


 

National Gas (South Australia) Bill 2008 National Gas Law--Schedule (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. 5 (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 10 profitability of the scheme pipeline service providers to which the report relates from the provision of pipeline services by them. (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. 15 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 20 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. 25 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 30 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-- 35 (a) decides not to investigate that breach or possible breach; or (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 40 Part 7 in respect of that breach or possible breach, HA GP 177-A OPC 169 59

 


 

National Gas (South Australia) Bill 2008 Schedule--National Gas Law 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 5 (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 10 website. Part 2--Functions and powers of the Australian Energy Market Commission Division 1--General 69--Functions and powers of the AEMC 15 (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; 20 (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 25 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. 71--Confidentiality Section 24 of the Australian Energy Market Commission Establishment 30 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 35 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. 60 HA GP 177-A OPC 169

 


 

National Gas (South Australia) Bill 2008 National Gas Law--Schedule 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-- 5 (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 10 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; 15 (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. 20 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 25 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 30 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 35 (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); HA GP 177-A OPC 169 61

 


 

National Gas (South Australia) Bill 2008 Schedule--National Gas Law (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 5 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 10 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-- 15 (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 20 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); 25 (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 30 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 35 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 40 (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; 62 HA GP 177-A OPC 169

 


 

National Gas (South Australia) Bill 2008 National Gas Law--Schedule (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 5 the amendment or revocation of a Rule. 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 10 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 15 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 20 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; 25 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, 30 specification, method or document. (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-- 35 (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). HA GP 177-A OPC 169 63

 


 

National Gas (South Australia) Bill 2008 Schedule--National Gas Law 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 5 (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 10 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 15 (c) the operation and effectiveness of the Rules; or (d) any matter relating to the Rules; or (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. 20 (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 25 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-- 30 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 35 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; 64 HA GP 177-A OPC 169

 


 

National Gas (South Australia) Bill 2008 National Gas Law--Schedule (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 5 review; (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 10 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-- 15 (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; 20 (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. 25 (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-- 30 (a) may be conducted in such manner as the AEMC considers appropriate; and (b) may (but need not) involve public hearings. Division 5--Other reviews 83--Rule reviews by the AEMC 35 (1) The AEMC may conduct a review into-- (a) the operation and effectiveness of the Rules; or (b) any matter relating to the Rules. HA GP 177-A OPC 169 65

 


 

National Gas (South Australia) Bill 2008 Schedule--National Gas Law (2) A review-- (a) may be conducted in such manner as the AEMC considers appropriate; and (b) may (but need not) involve public hearings. 5 (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 10 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 15 information has been omitted in accordance with section 331. Division 6--Miscellaneous matters 84--AEMC must publish and make available up to date versions of Rules The AEMC must, at all times-- 20 (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. 25 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. 30 (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. 35 (2) A liability that would, but for subsection (1), lie against an AEMC official lies instead against the AEMC. 66 HA GP 177-A OPC 169

 


 

National Gas (South Australia) Bill 2008 National Gas Law--Schedule (3) In this section-- AEMC official means-- (a) a member of the AEMC; (b) the chief executive of the AEMC; 5 (c) a member of staff appointed by the AEMC. Part 3--Functions and powers of Ministers of participating jurisdictions 87--Functions and powers of Minister of this participating jurisdiction under this Law 10 (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. 15 (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 20 (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. 25 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 30 in connection with the performance of its functions. 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, 35 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. HA GP 177-A OPC 169 67

 


 

National Gas (South Australia) Bill 2008 Schedule--National Gas Law (3) Disclosing information to 1 of the following is authorised use and disclosure of the information: (a) the ACCC; (b) the AER; 5 (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 10 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 15 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 20 Practices Act 1974 of the Commonwealth; or (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 25 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), 30 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-- 35 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. 68 HA GP 177-A OPC 169

 


 

National Gas (South Australia) Bill 2008 National Gas Law--Schedule (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. Chapter 3--Coverage and classification of pipelines Part 1--Coverage of pipelines 5 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). 10 (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). 15 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 20 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 25 process for the construction and operation of the proposed pipeline. (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 30 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. HA GP 177-A OPC 169 69

 


 

National Gas (South Australia) Bill 2008 Schedule--National Gas Law 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 5 (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 10 (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 15 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 20 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 25 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 30 (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 35 (b) in deciding whether or not the pipeline coverage criteria are satisfied must have regard to the national gas objective. 70 HA GP 177-A OPC 169

 


 

National Gas (South Australia) Bill 2008 National Gas Law--Schedule (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; 5 (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 10 (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-- 15 (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 20 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 25 NCC must apply the pipeline classification criterion. 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. 30 (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 35 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-- 40 (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 HA GP 177-A OPC 169 71

 


 

National Gas (South Australia) Bill 2008 Schedule--National Gas Law (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-- 5 (a) sought in the application under section 92; or (b) of the coverage recommendation. 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 10 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, 15 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 20 (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 25 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; 30 (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 35 pipeline-- (a) when the coverage determination takes effect; and (b) continues to be a covered pipeline while the coverage determination remains in effect. 72 HA GP 177-A OPC 169

 


 

National Gas (South Australia) Bill 2008 National Gas Law--Schedule 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 5 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 10 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. 104--NCC coverage revocation recommendation 15 (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. 20 (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 25 (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 30 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. 35 105--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 HA GP 177-A OPC 169 73

 


 

National Gas (South Australia) Bill 2008 Schedule--National Gas Law (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 5 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. 10 106--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 15 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. 20 (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 25 (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 revocation determination, the determination must specify the date the determination takes effect. 30 (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-- 35 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 40 which the NCC recommended coverage be revoked. 74 HA GP 177-A OPC 169

 


 

National Gas (South Australia) Bill 2008 National Gas Law--Schedule 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-- 5 (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 10 recommendation; and (iii) must take into account any submissions or comments he or she receives on a request under section 106(4); and (iv) may take into account any relevant submissions and comments made to the NCC by the public under the Rules in 15 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; 20 (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 25 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 30 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. HA GP 177-A OPC 169 75

 


 

National Gas (South Australia) Bill 2008 Schedule--National Gas Law 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). 5 (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-- 10 (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. 15 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 20 111--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 (b) to which an applicable access arrangement approved or made under a full access arrangement decision applies. 25 112--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-- 30 (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 35 On receiving an application under section 112, the NCC must deal with it in accordance with the Rules. 76 HA GP 177-A OPC 169

 


 

National Gas (South Australia) Bill 2008 National Gas Law--Schedule 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 5 (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-- 10 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. Note-- 15 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 20 (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 25 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 30 (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 35 provider provides or intends to provide, submit a limited access arrangement to the AER for approval by the AER under the Rules. HA GP 177-A OPC 169 77

 


 

National Gas (South Australia) Bill 2008 Schedule--National Gas Law (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. 5 (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 10 (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 15 (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-- 20 (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 25 force of this section, revoked on the same day that an access arrangement that applies to the pipeline 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 30 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 35 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 78 HA GP 177-A OPC 169

 


 

National Gas (South Australia) Bill 2008 National Gas Law--Schedule (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-- 5 (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 10 (ii) in respect of which the NCC has not made a coverage revocation recommendation; or (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 15 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 20 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 25 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 30 Note-- For example, see section 122. (b) be attached to the coverage revocation recommendation; and (c) contain the information required by the Rules. 120--NCC decision on application where no application for a coverage 35 revocation recommendation (1) This section applies if-- (a) an application is made under section 118; and HA GP 177-A OPC 169 79

 


 

National Gas (South Australia) Bill 2008 Schedule--National Gas Law (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 5 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-- 10 (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-- 15 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 20 (1) Subject to section 124, on the making of a decision under section 119(2) or 120 revoking a light regulation 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 25 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. 30 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 35 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 80 HA GP 177-A OPC 169

 


 

National Gas (South Australia) Bill 2008 National Gas Law--Schedule (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 5 (ii) the likely costs that may be incurred by efficient users and efficient prospective users; and (iii) the likely costs of end users. Note-- The forms of regulation provided for under this Law and the Rules to regulate 10 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 15 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 20 (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-- 25 (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, 30 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. HA GP 177-A OPC 169 81

 


 

National Gas (South Australia) Bill 2008 Schedule--National Gas Law 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 5 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 10 (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 15 (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. 20 (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-- 25 (a) have regard to-- (i) the national gas objective; and (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. 30 (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 35 requested the review. 82 HA GP 177-A OPC 169

 


 

National Gas (South Australia) Bill 2008 National Gas Law--Schedule 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 5 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 10 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-- 15 (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 (b) determine the relevant Minister for the purposes of that pipeline. 20 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-- 25 (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. 30 (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 35 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. HA GP 177-A OPC 169 83

 


 

National Gas (South Australia) Bill 2008 Schedule--National Gas Law 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, 5 cross boundary distribution pipeline, transmission pipeline or distribution pipeline; and (b) determine the relevant Minister for the purposes of that pipeline. Part 5--Reclassification of pipelines 128--Service provider may apply for reclassification of pipeline 10 (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. 15 (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 20 (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 25 (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. (4) The NCC must also as part of the reclassification decision-- 30 (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 35 also a cross boundary distribution pipeline. 84 HA GP 177-A OPC 169

 


 

National Gas (South Australia) Bill 2008 National Gas Law--Schedule (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 5 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 10 (b) the relevant Minister in respect of the pipeline is the relevant Minister as provided under this Law. Chapter 4--General requirements for provision of covered pipeline services Part 1--General duties for provision of pipeline services 15 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-- 20 (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 25 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 30 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 35 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 (b) within the period of time specified by the Rules. HA GP 177-A OPC 169 85

 


 

National Gas (South Australia) Bill 2008 Schedule--National Gas Law (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. 5 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 10 (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; 15 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), 20 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. (2) For the purposes of subsection (1), a person is deemed to engage in conduct for a particular purpose if-- 25 (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 30 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-- 35 (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 40 understanding or requiring the giving of, or giving, a covenant; (b) a reference to refusing to do an act includes a reference to-- 86 HA GP 177-A OPC 169

 


 

National Gas (South Australia) Bill 2008 National Gas Law--Schedule (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 5 agreement, if the agreement was in force on 30 March 1995. 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. 10 134--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 15 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 20 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. 25 135--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 30 services must not price discriminate (1) A covered pipeline service provider must not engage in price discrimination when providing light regulation services. (2) Subsection (1) does not apply if the covered pipeline service provider engages in price discrimination that is conducive to efficient service provision. HA GP 177-A OPC 169 87

 


 

National Gas (South Australia) Bill 2008 Schedule--National Gas Law Part 2--Structural and operational separation requirements (ring fencing) Division 1--Interpretation 137--Definitions 5 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; 10 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 15 (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-- 20 (i) is an officer, employee, consultant or independent contractor or agent of the covered pipeline service provider; 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); 25 (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 30 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 35 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 88 HA GP 177-A OPC 169

 


 

National Gas (South Australia) Bill 2008 National Gas Law--Schedule (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 5 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, of a 10 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 15 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 20 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. 25 141--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 30 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. Division 3--Additional ring fencing requirements 142--Division does not limit operation of Division 2 35 This Division does not limit Division 2. HA GP 177-A OPC 169 89

 


 

National Gas (South Australia) Bill 2008 Schedule--National Gas Law 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 5 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 10 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; 15 (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; 20 (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). (3) The AER must-- (a) notify, in writing, the covered pipeline service provider or associate 25 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 30 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 35 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 40 compliance date. 90 HA GP 177-A OPC 169

 


 

National Gas (South Australia) Bill 2008 National Gas Law--Schedule 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-- 5 (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. 145--Types of ring fencing requirements that may be specified in an 10 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, 15 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 20 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 25 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 30 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. Division 4--AER ring fencing exemptions 35 146--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 40 (c) the requirement under section 141. HA GP 177-A OPC 169 91

 


 

National Gas (South Australia) Bill 2008 Schedule--National Gas Law (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 5 (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 10 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 15 lessening competition in a market for natural gas services unless-- (d) that associate contract is an approved associate contract; or (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 20 (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-- 25 (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 30 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. 92 HA GP 177-A OPC 169

 


 

National Gas (South Australia) Bill 2008 National Gas Law--Schedule Chapter 5--Greenfields pipeline incentives Part 1--Interpretation 149--Definitions In this Chapter-- 5 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-- 10 (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 15 (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 20 An international pipeline is, for the purposes of this Chapter, a transmission pipeline. Part 2--15-year no-coverage determinations 151--Application for 15-year no-coverage determination for proposed pipeline 25 (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, 30 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. 35 (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 HA GP 177-A OPC 169 93

 


 

National Gas (South Australia) Bill 2008 Schedule--National Gas Law (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). 5 (4) In this section-- service provider includes a person that intends to be a service provider. 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. 10 153--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 15 (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 20 (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. 25 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. 30 (4) A recommendation under this section must be delivered to the relevant Minister without delay. 154--Principles governing the making of a no-coverage recommendation (1) In making a no-coverage recommendation, the NCC-- 35 (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. 94 HA GP 177-A OPC 169

 


 

National Gas (South Australia) Bill 2008 National Gas Law--Schedule (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; 5 (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 10 (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. 15 (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 (b) if it classifies the pipeline the subject of the application as a 20 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 25 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 30 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. 35 (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. 40 (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 HA GP 177-A OPC 169 95

 


 

National Gas (South Australia) Bill 2008 Schedule--National Gas Law (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) A 15-year no-coverage determination may have an outcome different to the 5 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 10 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. 15 157--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 20 (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 25 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. (2) The relevant Minister gives effect to the pipeline coverage criteria as follows: 30 (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- 35 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 40 commissioning of the pipeline. 96 HA GP 177-A OPC 169

 


 

National Gas (South Australia) Bill 2008 National Gas Law--Schedule (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. 5 159--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 10 (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. (2) If the Commonwealth Minister decides to treat an application for a 15-year 15 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 20 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 25 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 30 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). 35 (3) In this section-- service provider includes a person that intends to be a service provider. HA GP 177-A OPC 169 97

 


 

National Gas (South Australia) Bill 2008 Schedule--National Gas Law 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. 5 162--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-- 10 (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. 15 (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 20 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 25 (including the effect on market power); and (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 30 (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. 35 (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. 98 HA GP 177-A OPC 169

 


 

National Gas (South Australia) Bill 2008 National Gas Law--Schedule (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 5 (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. 10 (2) In doing so, the Commonwealth Minister-- (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 15 (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 20 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: 25 (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; 30 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 35 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 40 Commonwealth Minister) on access negotiations and the result of access negotiations. HA GP 177-A OPC 169 99

 


 

National Gas (South Australia) Bill 2008 Schedule--National Gas Law 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 5 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 10 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 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 20 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 25 applies (1) A service provider must, within 60 business days after the grant of a price regulation exemption, submit a limited access arrangement to the AER for approval by the AER under the Rules. (2) A limited access arrangement must-- 30 (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 35 arrangement applies-- (a) in accordance with the Rules; and (b) within the period specified by the Rules. 100 HA GP 177-A OPC 169

 


 

National Gas (South Australia) Bill 2008 National Gas Law--Schedule 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 5 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-- 10 (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 15 regulation exemption is subject. Note-- See also section 160. 170--Service provider must not price discriminate in providing international pipeline services 20 (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. 25 (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 30 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 35 described in the relevant pipeline description, the incentive does not attach to the pipeline and the service provider is not entitled to its benefit. HA GP 177-A OPC 169 101

 


 

National Gas (South Australia) Bill 2008 Schedule--National Gas Law (2) In determining whether a pipeline, as constructed, materially differs from the relevant pipeline description, excluded infrastructure is not to be taken into account. (3) In this section-- 5 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 10 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 15 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 20 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 25 consider the NCC's advice. 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 30 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 35 greenfields pipeline incentive. 102 HA GP 177-A OPC 169

 


 

National Gas (South Australia) Bill 2008 National Gas Law--Schedule 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 5 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 10 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 15 A greenfields pipeline incentive does not terminate, and cannot be revoked, before the end of its term except as provided in this Part. Chapter 6--Access disputes Part 1--Interpretation and application 178--Definitions 20 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 25 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 30 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. HA GP 177-A OPC 169 103

 


 

National Gas (South Australia) Bill 2008 Schedule--National Gas Law 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 5 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. 10 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 15 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 20 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-- 25 (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 30 under subsection (1). 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 35 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. 104 HA GP 177-A OPC 169

 


 

National Gas (South Australia) Bill 2008 National Gas Law--Schedule 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 5 (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 10 (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. Part 3--Access determinations 184--Determination of access dispute 15 (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. 20 (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 25 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 30 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 35 (without making an access determination) if the dispute resolution body considers that-- (a) the notification of the access dispute was vexatious; or (b) the subject matter of the dispute is trivial, misconceived or lacking in substance; or HA GP 177-A OPC 169 105

 


 

National Gas (South Australia) Bill 2008 Schedule--National Gas Law (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. 5 (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-- 10 (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 15 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 20 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. 25 188--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 30 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; 35 (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; 106 HA GP 177-A OPC 169

 


 

National Gas (South Australia) Bill 2008 National Gas Law--Schedule 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 5 (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 10 than a relevant exclusivity right) that was in force immediately before the notification of an access dispute under section 181. 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 15 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, 20 (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 25 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; 30 (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-- 35 (a) a service provider to install or construct a new facility to expand the capacity of the access dispute pipeline; and (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. HA GP 177-A OPC 169 107

 


 

National Gas (South Australia) Bill 2008 Schedule--National Gas Law (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 5 (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. 10 192--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 15 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-- 20 (a) a specified tariff, rate or charge; and (b) on specified terms and conditions. Part 4--Variation of access determinations 194--Variation of access determination (1) The dispute resolution body may vary an access determination on the 25 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. 30 (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 35 of the varied determination. 108 HA GP 177-A OPC 169

 


 

National Gas (South Australia) Bill 2008 National Gas Law--Schedule 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. 5 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. 10 (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. 15 197--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-- 20 (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 25 (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 30 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 35 conducted by-- (a) telephone; or (b) closed circuit television; or (c) any other means of communication. HA GP 177-A OPC 169 109

 


 

National Gas (South Australia) Bill 2008 Schedule--National Gas Law (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 5 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; 10 (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. 15 200--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. 20 (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. 25 201--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 30 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 35 in the summons. (3) The powers in this section may be exercised only for the purposes of hearing and determining an access dispute. 110 HA GP 177-A OPC 169

 


 

National Gas (South Australia) Bill 2008 National Gas Law--Schedule 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-- 5 (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. 10 203--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 15 answer by the dispute resolution body; or (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. 20 (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. 25 (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 30 (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 35 resolution body. Maximum penalty: $2 000. HA GP 177-A OPC 169 111

 


 

National Gas (South Australia) Bill 2008 Schedule--National Gas Law 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 5 specified part of a document contains confidential information; and (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 10 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 15 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 20 (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 25 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 30 specified by the dispute resolution body and subject to such other conditions as the dispute resolution body determines. 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. 35 (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 40 unnecessarily disadvantaged another party by conduct such as-- 112 HA GP 177-A OPC 169

 


 

National Gas (South Australia) Bill 2008 National Gas Law--Schedule (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; 5 (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; 10 (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 15 in fact or law; (d) the nature and complexity of the access dispute; (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. 20 (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. 25 (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 30 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 35 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 40 ordered that they be paid; and (b) may be recovered by that party in a court of competent jurisdiction. HA GP 177-A OPC 169 113

 


 

National Gas (South Australia) Bill 2008 Schedule--National Gas Law Part 7--Joint access dispute hearings 208--Definition In this Part-- nominated disputes has the meaning given by section 209(2). 5 209--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 10 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 15 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-- 20 (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 25 deciding whether to do so. The 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 30 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. 114 HA GP 177-A OPC 169

 


 

National Gas (South Australia) Bill 2008 National Gas Law--Schedule (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-- 5 (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 10 213--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 15 description of any person, thing or matter referred to in the determination; or (d) a defect in form, the dispute resolution body may correct the access determination. 214--Reservation of capacity during an access dispute 20 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 25 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 30 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-- 35 (a) charge the parties to an access dispute for its costs in the access dispute; and (b) apportion those costs between the parties. HA GP 177-A OPC 169 115

 


 

National Gas (South Australia) Bill 2008 Schedule--National Gas Law 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 5 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, 10 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 15 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; 20 (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; 25 (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; (e) to manage information of the type mentioned in paragraphs (a), (b) and (c); 30 (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 35 convenient to be done for or in connection with the performance of its functions. 116 HA GP 177-A OPC 169

 


 

National Gas (South Australia) Bill 2008 National Gas Law--Schedule 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 5 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. 10 (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; 15 (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. 20 (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. 25 (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. 30 222--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 35 (b) Bulletin Board information. (2) The fee must not be such as to amount to taxation. HA GP 177-A OPC 169 117

 


 

National Gas (South Australia) Bill 2008 Schedule--National Gas Law 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 5 information if the person is required to do so under the Rules: (a) a service provider; (b) a gas market operator; (c) a user; (d) a non scheme pipeline user; 10 (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 15 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 20 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 25 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 30 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. 35 (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; 118 HA GP 177-A OPC 169

 


 

National Gas (South Australia) Bill 2008 National Gas Law--Schedule (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 5 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-- 10 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 15 227--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 20 afterwards copy, record, use or disclose information that is Bulletin Board information and that was disclosed to the person as the Bulletin Board operator. (3) Subsection (1) does not apply if-- (a) the Bulletin Board operator has the written consent for the copying, 25 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 30 (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 35 (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-- 40 (a) an officer of the Bulletin Board operator; or HA GP 177-A OPC 169 119

 


 

National Gas (South Australia) Bill 2008 Schedule--National Gas Law (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 5 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. (2) If-- 10 (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 15 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 20 (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; 25 (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 30 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 35 (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 40 jurisdiction; or (d) the information is also disclosed to the person-- 120 HA GP 177-A OPC 169

 


 

National Gas (South Australia) Bill 2008 National Gas Law--Schedule (i) for reasons other than compliance with section 223(1); and (ii) in circumstances other than those expressly permitted by the Rules. Chapter 8--Proceedings under the National Gas Law 5 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. 10 (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 15 (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, 20 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. 25 (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. Part 2--Proceedings for breaches of this Law, Regulations or the Rules 30 231--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. 35 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. HA GP 177-A OPC 169 121

 


 

National Gas (South Australia) Bill 2008 Schedule--National Gas Law (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 5 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 10 the Court requires for remedying the breach or preventing a recurrence of the breach; (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. 15 (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 20 (b) if, in the Court's opinion, it is desirable to do so--requiring the person to do something. (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 25 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 30 whether or not there is an imminent danger of substantial damage to any person if the person engages in conduct of that kind. 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 35 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; 40 (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; 122 HA GP 177-A OPC 169

 


 

National Gas (South Australia) Bill 2008 National Gas Law--Schedule (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 5 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 10 mentioned person to do something. (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 15 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 20 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 25 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 30 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 (b) the nature and extent of any loss or damage suffered as a result of the 35 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 HA GP 177-A OPC 169 123

 


 

National Gas (South Australia) Bill 2008 Schedule--National Gas Law (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 5 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 10 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 15 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. Note-- Clause 49 of Schedule 2 to this Law sets out further provisions in relation to double 20 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 25 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 30 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. 35 240--Civil penalties payable to the Commonwealth If a person is ordered to pay a civil penalty, the penalty is payable to the Commonwealth. 124 HA GP 177-A OPC 169

 


 

National Gas (South Australia) Bill 2008 National Gas Law--Schedule Part 4--Judicial review of decisions under this Law, the Regulations and the Rules 241--Definition In this Part-- 5 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 10 (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, 15 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 20 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. 25 243--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 30 (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, 35 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 40 implement the decision or determination. HA GP 177-A OPC 169 125

 


 

National Gas (South Australia) Bill 2008 Schedule--National Gas Law Part 5--Merits review and other non-judicial review Division 1--Interpretation 244--Definitions In this Part-- 5 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; (b) a user, prospective user or end user whose commercial interests are 10 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 15 (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 20 (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 25 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 30 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-- 35 (a) a coverage recommendation; or (b) a coverage revocation recommendation; or (c) a no-coverage recommendation; or 126 HA GP 177-A OPC 169

 


 

National Gas (South Australia) Bill 2008 National Gas Law--Schedule (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 5 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; 10 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 15 (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 20 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 25 (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-- 30 (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; 35 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; HA GP 177-A OPC 169 127

 


 

National Gas (South Australia) Bill 2008 Schedule--National Gas Law 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 5 (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 10 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; user or consumer intervener means-- 15 (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. 20 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. 25 (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 30 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 35 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; 128 HA GP 177-A OPC 169

 


 

National Gas (South Australia) Bill 2008 National Gas Law--Schedule (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 5 (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 10 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; 15 (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 20 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. 25 249--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 30 (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 35 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. HA GP 177-A OPC 169 129

 


 

National Gas (South Australia) Bill 2008 Schedule--National Gas Law 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 5 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 10 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 (ii) was not taken into account in the making of the decision. 15 251--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 20 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 25 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 30 (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; 35 (ii) in the case of a reviewable regulatory decision that is a Ministerial coverage decision, the NCC on a matter relevant to the making of an NCC recommendation relating to the decision. 130 HA GP 177-A OPC 169

 


 

National Gas (South Australia) Bill 2008 National Gas Law--Schedule 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 5 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 10 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: 15 (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 20 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) with a sufficient interest in the 25 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 30 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 35 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. HA GP 177-A OPC 169 131

 


 

National Gas (South Australia) Bill 2008 Schedule--National Gas Law (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 5 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 10 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. (4) For the purposes of subsection (3)(c)-- 15 (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 20 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. 25 (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 30 (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 35 (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 matter raised in support of a ground for review, raised by the applicant or an intervener; 132 HA GP 177-A OPC 169

 


 

National Gas (South Australia) Bill 2008 National Gas Law--Schedule (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. 5 (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 10 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. 15 (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. 20 (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 must have regard to the nature and 25 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 30 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-- 35 (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 40 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. HA GP 177-A OPC 169 133

 


 

National Gas (South Australia) Bill 2008 Schedule--National Gas Law (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, 5 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 10 make the determination. 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-- 15 (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 20 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. 25 (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-- 30 (i) in all cases, the original decision maker when the decision maker was making the reviewable regulatory decision; and (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 35 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 40 been unreasonably withheld. 134 HA GP 177-A OPC 169

 


 

National Gas (South Australia) Bill 2008 National Gas Law--Schedule (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 5 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 10 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 15 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 20 (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 25 (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 30 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 35 (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. HA GP 177-A OPC 169 135

 


 

National Gas (South Australia) Bill 2008 Schedule--National Gas Law 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 5 disclosure decision may apply to the Tribunal for a review of the decision. (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 10 (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 15 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 20 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 25 (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 30 which the AER information disclosure decision the subject of the review relates; or (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. 35 (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 40 this Part), to be taken to be a decision of the AER. 136 HA GP 177-A OPC 169

 


 

National Gas (South Australia) Bill 2008 National Gas Law--Schedule 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 5 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 10 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 15 (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. (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 20 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 25 (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 30 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 35 (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. HA GP 177-A OPC 169 137

 


 

National Gas (South Australia) Bill 2008 Schedule--National Gas Law 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-- 5 (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 10 (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. 15 (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 20 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 25 appropriate-- (i) restraining the other party from engaging in the conduct; or (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 30 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. 35 (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. 138 HA GP 177-A OPC 169

 


 

National Gas (South Australia) Bill 2008 National Gas Law--Schedule (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 5 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 10 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. 273--Interim injunctions The Court may grant an interim injunction pending determination of an 15 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 20 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 25 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 30 (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. HA GP 177-A OPC 169 139

 


 

National Gas (South Australia) Bill 2008 Schedule--National Gas Law 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. 5 (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 10 (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 15 (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; 20 (b) that the alleged breach is a breach of the civil penalty provision; (c) the nature, and a brief description, of the alleged breach; (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; 25 (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 30 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. 140 HA GP 177-A OPC 169

 


 

National Gas (South Australia) Bill 2008 National Gas Law--Schedule 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 5 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. 280--AER cannot institute proceedings while infringement notice on 10 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 15 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 20 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. 25 282--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-- 30 (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. (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 35 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. HA GP 177-A OPC 169 141

 


 

National Gas (South Australia) Bill 2008 Schedule--National Gas Law 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 5 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 10 (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 15 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. 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 20 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 25 breaches of this Law etc 287--Definition In this Part-- breach provision means an offence provision, a civil penalty provision or a conduct provision. 30 288--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 35 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. 142 HA GP 177-A OPC 169

 


 

National Gas (South Australia) Bill 2008 National Gas Law--Schedule 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 5 by the corporation, constitute a breach of a provision of this Law, the Regulations or the Rules, that corporation is to be taken to have contravened that provision. Chapter 9--The making of the National Gas Rules Part 1--General 10 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 15 2 Part 2 Division 5; gas market regulatory body means-- (a) the AER; (b) the ERA; (c) VENCorp; 20 (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); 25 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 30 effect on a market for gas or the regulation of pipeline services; 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; HA GP 177-A OPC 169 143

 


 

National Gas (South Australia) Bill 2008 Schedule--National Gas Law publish means-- (a) in relation to a notice required to be published under this Chapter (except section 294 or 315)--publish in the South Australian Government Gazette, on the AEMC's website and in a newspaper 5 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 10 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; 15 (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; 20 REMCo means the Retail Energy Market Company Ltd (ACN 103 318 556); 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 25 291--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 30 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 35 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 144 HA GP 177-A OPC 169

 


 

National Gas (South Australia) Bill 2008 National Gas Law--Schedule (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 5 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 (ii) confers a function or power on the AER to specify under a full access arrangement decision approving or making an 10 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 15 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 20 294--South Australian Minister to make initial National Gas Rules (1) The Minister of the Crown in right of South Australia administering Part 2 of the National Gas (South Australia) Act 2008 of South Australia may make Rules for or with respect to-- (a) any matter or thing referred to in section 74 and Schedule 1 to this 25 Law; (b) matters of a transitional nature relating to the transition from the old access law and Gas Code to the application of this Law and the Rules. (2) In subsection (1)-- 30 matters of a transitional nature include matters of an application or savings nature. (3) As soon as practicable after making Rules under subsection (1), the Minister referred to in that subsection must-- (a) publish notice of the making of the Rules in the South Australian 35 Government Gazette; and (b) make the Rules publicly available. (4) Section 74(3) applies to the making of Rules under subsection (1) as if the Rules being made under subsection (1) were Rules being made by the AEMC. (5) The notice referred to in subsection (3)(a) must state-- 40 (a) the date on which the Rules commence operation; or HA GP 177-A OPC 169 145

 


 

National Gas (South Australia) Bill 2008 Schedule--National Gas Law (b) if different Rules will commence operation on different dates, those dates. (6) The Rules made under subsection (1) may only be made on the recommendation of the MCE. 5 (7) If the Minister referred to in subsection (1) makes Rules under that subsection, the Minister cannot make another Rule under that subsection. 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. 10 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 15 (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 20 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 25 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. 30 (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 35 (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. 146 HA GP 177-A OPC 169

 


 

National Gas (South Australia) Bill 2008 National Gas Law--Schedule 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 5 (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 10 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. 301--Initial consideration of request for Rule 15 (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 20 (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 25 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 30 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. 35 (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. HA GP 177-A OPC 169 147

 


 

National Gas (South Australia) Bill 2008 Schedule--National Gas Law (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. 5 (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 10 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 15 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-- 20 (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. 25 (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. (3) A notice under subsection (2) must specify-- (a) the kind of information the AEMC requires from the person or body; and 30 (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. 35 303--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. 148 HA GP 177-A OPC 169

 


 

National Gas (South Australia) Bill 2008 National Gas Law--Schedule (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. 5 (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 10 (b) contain any other information prescribed by the Regulations. (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 15 (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 20 (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 25 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 30 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 35 (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-- 40 (a) make a decision to that effect; and HA GP 177-A OPC 169 149

 


 

National Gas (South Australia) Bill 2008 Schedule--National Gas Law (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, 5 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 10 (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 15 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 20 (ii) a conclusion for the making of a Rule contained in an AEMC Rule review. (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 25 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 30 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 35 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 40 review (as the case requires). 150 HA GP 177-A OPC 169

 


 

National Gas (South Australia) Bill 2008 National Gas Law--Schedule (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 5 which this section applies. 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. 10 307--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-- 15 (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. 20 (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 25 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. (4) A draft Rule determination must contain-- (a) the reasons of the AEMC as to whether or not it should make the 30 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 35 (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 40 relates; and HA GP 177-A OPC 169 151

 


 

National Gas (South Australia) Bill 2008 Schedule--National Gas Law (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 5 (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 10 made; and (c) any other matters that are prescribed by the Regulations. (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, 15 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 20 (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 25 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. 30 (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. 35 (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 40 section 309; and (b) no other person or body requests the AEMC to hold a hearing. 152 HA GP 177-A OPC 169

 


 

National Gas (South Australia) Bill 2008 National Gas Law--Schedule (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 5 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. 10 311--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 15 ends, publish-- (a) the final Rule determination; and (b) notice of the making of the final Rule determination. (3) A final Rule determination must contain-- (a) the reasons of the AEMC as to whether or not it should make a Rule, 20 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 25 (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 30 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 35 (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. 40 (4) A notice referred to in subsection (2) must contain the information prescribed by the Regulations. HA GP 177-A OPC 169 153

 


 

National Gas (South Australia) Bill 2008 Schedule--National Gas Law 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 5 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". 10 313--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 15 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. 20 315--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 25 (b) make copies of the Rule available to the public at its offices. 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 30 (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. 154 HA GP 177-A OPC 169

 


 

National Gas (South Australia) Bill 2008 National Gas Law--Schedule 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 5 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. 10 (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 15 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. 20 318--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 25 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. 30 (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 35 (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 40 by the date specified in the notice. HA GP 177-A OPC 169 155

 


 

National Gas (South Australia) Bill 2008 Schedule--National Gas Law (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. 5 (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. 319--AEMC may publish written submissions and comments unless confidential 10 (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 15 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. 20 (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-- 25 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-- 30 (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). 35 (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 40 section 303; and (b) must specify when the AEMC considers it will make the final Rule determination; and 156 HA GP 177-A OPC 169

 


 

National Gas (South Australia) Bill 2008 National Gas Law--Schedule (c) must be published. Chapter 10--General Part 1--Provisions relating to applicable access arrangements 5 321--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 10 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, 15 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 20 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 25 required under section 132--a right under a contract (other than a relevant exclusivity right) in force immediately before the date on which an access arrangement was required to be submitted for approval; (ii) an access arrangement was not approved under an applicable 30 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 35 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 40 that pipeline service. HA GP 177-A OPC 169 157

 


 

National Gas (South Australia) Bill 2008 Schedule--National Gas Law 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 5 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 10 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 (b) section 205. 15 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 20 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 25 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 30 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 35 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 158 HA GP 177-A OPC 169

 


 

National Gas (South Australia) Bill 2008 National Gas Law--Schedule (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 5 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 10 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. 15 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 20 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 25 the person who has given it or to the person from whom that person received it; or (b) that, although the disclosure of the information would cause detriment to such a person, the public benefit in disclosing it outweighs that detriment. 30 (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 35 (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 40 (b) the AER's decision, in writing, setting out the reasons why the AER-- HA GP 177-A OPC 169 159

 


 

National Gas (South Australia) Bill 2008 Schedule--National Gas Law (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 5 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 10 (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 15 (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 20 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. 25 (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 30 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-- 35 (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 wishes to disclose it cannot cause detriment to any person referred to in subsection (2) or (3). 160 HA GP 177-A OPC 169

 


 

National Gas (South Australia) Bill 2008 National Gas Law--Schedule (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, 5 whichever is the later. Division 2--Disclosure of confidential information held by relevant Ministers, NCC and AEMC 330--Definitions In this Division-- 10 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; 15 (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; 20 (c) in relation to the AEMC, a report published under Division 4 or Division 5 of Chapter 2 Part 2; 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 25 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; 30 (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 35 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 HA GP 177-A OPC 169 161

 


 

National Gas (South Australia) Bill 2008 Schedule--National Gas Law (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 5 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 10 another relevant decision maker or MCE. (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 15 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 20 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 25 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-- 30 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. Part 3--Miscellaneous 332--Failure to make a decision under this Law or the Rules within time does not invalidate the decision 35 (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. 40 (2) A decision to which subsection (1) applies takes effect on and from-- (a) the day it is made; or 162 HA GP 177-A OPC 169

 


 

National Gas (South Australia) Bill 2008 National Gas Law--Schedule (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-- 5 (a) a relevant Minister; (b) the Commonwealth Minister in the case of decisions relating to price regulation exemptions; (c) the NCC; (d) the AER; 10 (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 15 NCC scheme decision is made. (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. 20 (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 25 (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 30 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 35 (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 HA GP 177-A OPC 169 163

 


 

National Gas (South Australia) Bill 2008 Schedule--National Gas Law (b) a 15-year no-coverage determination; or (c) a coverage revocation determination. (2) The NCC must comply with a request. 336--Savings and transitionals 5 Schedule 3 to this Law has effect. 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. Light 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. 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. 164 HA GP 177-A OPC 169

 


 

National Gas (South Australia) Bill 2008 National Gas Law--Schedule 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; (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. HA GP 177-A OPC 169 165

 


 

National Gas (South Australia) Bill 2008 Schedule--National Gas Law 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; (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 166 HA GP 177-A OPC 169

 


 

National Gas (South Australia) Bill 2008 National Gas Law--Schedule (b) the AER for the purpose of approving revisions or a variation to an applicable access arrangement that is a full access arrangement; or (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 (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. HA GP 177-A OPC 169 167

 


 

National Gas (South Australia) Bill 2008 Schedule--National Gas Law 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. 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. 168 HA GP 177-A OPC 169

 


 

National Gas (South Australia) Bill 2008 National Gas Law--Schedule 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. 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 (f) decisions under section 156 not to make a 15-year no-coverage determination; and HA GP 177-A OPC 169 169

 


 

National Gas (South Australia) Bill 2008 Schedule--National Gas Law (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. 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 20 of the National Gas (South Australia) Act 2008 of South Australia. 83 Any matter or thing relating to gas prescribed by the Regulations. 170 HA GP 177-A OPC 169

 


 

National Gas (South Australia) Bill 2008 National Gas Law--Schedule Schedule 2--Miscellaneous provisions relating to interpretation Section 20 Part 1--Preliminary 5 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. 10 (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 15 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 20 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 25 other persons, subject matters or circumstances, is not affected. (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 30 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 35 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 40 Constitution of the Commonwealth applies; or HA GP 177-A OPC 169 171

 


 

National Gas (South Australia) Bill 2008 Schedule--National Gas Law (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 5 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-- 10 There is no clause 3. 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. 15 (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. 20 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 25 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, 30 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, 35 together with a reference to the jurisdiction. 172 HA GP 177-A OPC 169

 


 

National Gas (South Australia) Bill 2008 National Gas Law--Schedule 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 5 (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-- 10 (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. 15 (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 20 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. 8--Use of extrinsic material in interpretation 25 (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 30 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 35 (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 40 (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 HA GP 177-A OPC 169 173

 


 

National Gas (South Australia) Bill 2008 Schedule--National Gas Law (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 5 (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; Rule extrinsic material means-- 10 (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 15 (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-- 20 (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 25 (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-- 30 (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 35 (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-- 40 (a) the desirability of a provision being interpreted as having its ordinary meaning; and 174 HA GP 177-A OPC 169

 


 

National Gas (South Australia) Bill 2008 National Gas Law--Schedule (b) the undesirability of prolonging proceedings without compensating advantage; and (c) other relevant matters. 9--Compliance with forms 5 (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 10 (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. 15 Part 3--Terms and references 10--Definitions In this Law-- Act means an Act of the Legislature of this jurisdiction; affidavit, in relation to a person allowed by law to affirm, declare or promise, 20 includes affirmation, declaration and promise; amend includes-- (a) omit or omit and substitute; or (b) alter or vary; or (c) amend by implication; 25 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 30 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 35 (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; HA GP 177-A OPC 169 175

 


 

National Gas (South Australia) Bill 2008 Schedule--National Gas Law 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; 5 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 (b) limits or extends the meaning of a word or expression; document includes-- 10 (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, 15 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; 20 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; 25 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; 30 minor means an individual who is under 18 years of age; modification includes addition, omission or substitution; month means a calendar month; named month means 1 of the 12 months of the year; number means-- 35 (a) a number expressed in figures or words; or (b) a letter; or (c) a combination of a number so expressed and a letter; 176 HA GP 177-A OPC 169

 


 

National Gas (South Australia) Bill 2008 National Gas Law--Schedule 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; 5 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; 10 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 15 property of any description (including money), and includes things in action; 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 20 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; 25 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 30 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; 35 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; HA GP 177-A OPC 169 177

 


 

National Gas (South Australia) Bill 2008 Schedule--National Gas Law writing includes any mode of representing or reproducing words in a visible form. 11--Provisions relating to defined terms and gender and number (1) If this Law defines a word or expression, other parts of speech and 5 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-- 10 (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 15 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 20 (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 25 intention appears in the instrument. 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 30 (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 35 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-- 178 HA GP 177-A OPC 169

 


 

National Gas (South Australia) Bill 2008 National Gas Law--Schedule (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 5 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 10 jurisdiction; and (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 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 20 (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 25 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 30 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 35 a locality or other matter or thing in and of this jurisdiction. 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. HA GP 177-A OPC 169 179

 


 

National Gas (South Australia) Bill 2008 Schedule--National Gas Law 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, 5 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 10 (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 15 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 20 (iv) the paragraph, designated by the number, of the section, subsection, Schedule or other provision in which the reference occurs; and (v) the paragraph, designated by the number, of the clause, subclause, item, column, table or form of or in the Schedule 25 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 30 (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 35 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. 180 HA GP 177-A OPC 169

 


 

National Gas (South Australia) Bill 2008 National Gas Law--Schedule (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. 5 (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. 20--Power to make instrument or decision includes power to amend or repeal 10 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 15 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 20 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), 25 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. 30 (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. (4) A statutory instrument may authorise a matter or thing to be from time to time 35 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. HA GP 177-A OPC 169 181

 


 

National Gas (South Australia) Bill 2008 Schedule--National Gas Law (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 5 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 10 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 15 (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 20 particular provision of this Law. 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 25 (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. 30 (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, 35 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. 182 HA GP 177-A OPC 169

 


 

National Gas (South Australia) Bill 2008 National Gas Law--Schedule (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 5 remuneration and allowances; and (b) terminate the appointment at any time. (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 10 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 15 (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. 20 (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. 25 (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. 30 (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. 25--Powers of appointment imply certain incidental powers 35 (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-- HA GP 177-A OPC 169 183

 


 

National Gas (South Australia) Bill 2008 Schedule--National Gas Law (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 5 (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 10 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 15 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. 20 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 25 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. 30 (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. 35 (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. 40 (7) A delegated function or power that is duly exercised by the delegate is taken to have been exercised by the delegator. 184 HA GP 177-A OPC 169

 


 

National Gas (South Australia) Bill 2008 National Gas Law--Schedule (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 the delegate's opinion, belief or state of mind in relation to the matter. 5 (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 10 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. 15 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 20 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 25 power or of bringing the appointment, instrument or other thing into effect, before the empowering provision commences. (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 30 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, 35 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, 40 before the empowering provision commences. HA GP 177-A OPC 169 185

 


 

National Gas (South Australia) Bill 2008 Schedule--National Gas Law (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 5 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 10 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). (4) If an instrument, or a provision of an instrument, is made under subclause (1) 15 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-- 20 (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 25 (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 30 (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. 35 (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 mentioned in subclause (2) as amended by the empowering provision. 40 (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. 186 HA GP 177-A OPC 169

 


 

National Gas (South Australia) Bill 2008 National Gas Law--Schedule 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. 5 (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 10 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, 15 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. 20 (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. 25 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-- 30 (a) on a natural person-- (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 35 (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 HA GP 177-A OPC 169 187

 


 

National Gas (South Australia) Bill 2008 Schedule--National Gas Law (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. 5 (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. 10 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 15 document as a letter; and (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 20 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. 25 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 30 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 35 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; 188 HA GP 177-A OPC 169

 


 

National Gas (South Australia) Bill 2008 National Gas Law--Schedule 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-- 5 (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 10 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 15 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-- 20 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; 25 AEMC Commissioner means a Commissioner within the meaning of the Australian Energy Market Commission Establishment Act 2004 of South Australia; AER member has the same meaning as in the Trade Practices Act 1974 of the Commonwealth; 30 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. HA GP 177-A OPC 169 189

 


 

National Gas (South Australia) Bill 2008 Schedule--National Gas Law 34--Evidentiary certificates--AER 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 5 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 10 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); 15 (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); 20 (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; 25 (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; 30 (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 35 section 116 or 168; (v) a relevant notice. 190 HA GP 177-A OPC 169

 


 

National Gas (South Australia) Bill 2008 National Gas Law--Schedule 35--Evidentiary certificates--AEMC In any proceedings under this Law, a certificate signed or purported to be signed by a Commissioner or the AEMC chief executive, stating any of the following matters is evidence of the matter: 5 (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); 10 (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 15 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; 20 (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 25 Rules, published on the NCC's website: (i) a Ministerial coverage decision; (ii) an NCC recommendation or decision; (iii) a decision of the NCC not to make a coverage determination because of section 96; 30 (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 35 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. HA GP 177-A OPC 169 191

 


 

National Gas (South Australia) Bill 2008 Schedule--National Gas Law 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: 5 (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); 10 (d) on a stated day a relevant notice was published on the Bulletin Board operator's website. Part 8--Commencement of this Law and statutory instruments 39--Time of commencement of this Law or a provision of this Law 15 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 20 (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. 25 (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 30 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. 192 HA GP 177-A OPC 169

 


 

National Gas (South Australia) Bill 2008 National Gas Law--Schedule 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-- 5 (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-- 10 (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-- 15 (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 20 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. 25 (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. 44--Continuance of repealed provisions (1) If an Act of South Australia repeals some provisions of this Law and enacts 30 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. 35 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. HA GP 177-A OPC 169 193

 


 

National Gas (South Australia) Bill 2008 Schedule--National Gas Law 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 5 (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 10 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. 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 15 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 20 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 25 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. 30 (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. 35 (5) Nothing in this clause renders a person liable to be punished more than once in relation to the same offence. 194 HA GP 177-A OPC 169

 


 

National Gas (South Australia) Bill 2008 National Gas Law--Schedule 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, 5 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 10 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 15 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 20 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 (b) the offence is constituted by conduct that is substantially the same as 25 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--Aiding and abetting, attempts etc 30 (1) A person who aids, abets, counsels or procures, or by act or omission is in any way directly or indirectly concerned in or a party to, the commission of an offence against this Law is taken to have committed that offence and is liable to the penalty for the offence. (2) A person who attempts to commit an offence against this Law commits an 35 offence and is punishable as if the attempted offence had been committed. HA GP 177-A OPC 169 195

 


 

National Gas (South Australia) Bill 2008 Schedule--National Gas Law 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 5 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 10 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 15 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. (2) If a provision of the National Gas Rules, or the application of a provision of 20 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 25 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 30 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". 35 (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-- 40 (a) acts or omissions of corporations to which section 51(xx) of the Constitution of the Commonwealth applies; or 196 HA GP 177-A OPC 169

 


 

National Gas (South Australia) Bill 2008 National Gas Law--Schedule (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 5 things outside Australia. (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 10 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 15 (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. 20 (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. Schedule 3--Savings and transitionals Section 336 25 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; 30 commencement day means the day on which section 20 of the new application Act 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; 35 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; HA GP 177-A OPC 169 197

 


 

National Gas (South Australia) Bill 2008 Schedule--National Gas Law 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 5 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; old scheme coverage revocation determination means a determination of an old scheme relevant Minister under section 1.34 of the Gas Code; 10 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 15 (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; 20 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; 25 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; 30 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; 35 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; 198 HA GP 177-A OPC 169

 


 

National Gas (South Australia) Bill 2008 National Gas Law--Schedule 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 5 (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-- 10 The Regulations or the Rules may also contain provisions of an application, savings or transitional nature. 2--Schedule subject to jurisdictional transitional arrangements in jurisdictional legislation (1) This Schedule, and any Regulations or Rules of a savings and transitional 15 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 20 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 25 (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 30 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-- 35 (i) an offence arising under the old access law; or (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. HA GP 177-A OPC 169 199

 


 

National Gas (South Australia) Bill 2008 Schedule--National Gas Law (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. 5 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. 10 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 15 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 20 deemed to be a covered pipeline that is a distribution pipeline. 8--Pending coverage applications under old scheme (before NCC recommendation) (1) This clause applies if-- (a) there is an old scheme coverage application; and 25 (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 30 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. 200 HA GP 177-A OPC 169

 


 

National Gas (South Australia) Bill 2008 National Gas Law--Schedule 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 5 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 10 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 15 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 the pipeline is covered--a coverage determination; 20 (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 25 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-- 30 (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 35 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; 40 (b) if the determination is that the pipeline is not covered--a decision not to make a coverage determination under section 99. HA GP 177-A OPC 169 201

 


 

National Gas (South Australia) Bill 2008 Schedule--National Gas Law (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 5 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. 10 (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. 15 (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-- 20 (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. 11--Pending old scheme coverage determinations where no 25 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 30 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. 35 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 40 for a review of the determination before the commencement day. 202 HA GP 177-A OPC 169

 


 

National Gas (South Australia) Bill 2008 National Gas Law--Schedule (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. 5 (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. 10 (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 15 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 20 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. 25 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 30 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 35 after the last day an application could have been made under section 38 of the old access law. 14--Pending old scheme no-coverage determinations where applications for review under old scheme on foot (1) This clause applies if-- 40 (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. HA GP 177-A OPC 169 203

 


 

National Gas (South Australia) Bill 2008 Schedule--National Gas Law (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 5 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 10 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 15 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 20 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 25 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 30 (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 35 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. 204 HA GP 177-A OPC 169

 


 

National Gas (South Australia) Bill 2008 National Gas Law--Schedule 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 5 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 (b) an old scheme relevant Minister receives a recommendation of the 10 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. 15 (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 20 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 25 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-- 30 (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. (2) If on the review the relevant appeals body refuses to review the determination 35 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; 40 (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. HA GP 177-A OPC 169 205

 


 

National Gas (South Australia) Bill 2008 Schedule--National Gas Law (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 5 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 10 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 15 matter, the Minister must make a determination under clause 16. (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 20 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 25 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; 30 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). 35 (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. 19--Pending old scheme coverage revocation determinations where applications for review under old scheme on foot 40 (1) This clause applies if-- (a) there is a pending old scheme coverage revocation determination; and 206 HA GP 177-A OPC 169

 


 

National Gas (South Australia) Bill 2008 National Gas Law--Schedule (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 5 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 10 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 15 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 20 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 body is deemed to be, on the day that determination takes effect-- (a) if that determination is that coverage of the covered pipeline is 25 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 30 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 35 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 40 section 106 on the day after the last day an application could have been made under section 38 of the old access law. HA GP 177-A OPC 169 207

 


 

National Gas (South Australia) Bill 2008 Schedule--National Gas 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 5 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 10 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 15 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 20 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. 25 (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-- 30 (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. 35 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. 208 HA GP 177-A OPC 169

 


 

National Gas (South Australia) Bill 2008 National Gas Law--Schedule 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 5 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 10 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. 15 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 20 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 25 day. (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. 30 (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 35 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 40 that section--the day after the last day an application could have been made under that section. HA GP 177-A OPC 169 209

 


 

National Gas (South Australia) Bill 2008 Schedule--National Gas Law 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 5 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 10 old scheme relevant 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-- 15 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 20 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-- 25 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 30 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 35 scheme relevant Minister, the determination of the relevant 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 40 determination--a decision not to make a 15-year no-coverage determination under section 162. 210 HA GP 177-A OPC 169

 


 

National Gas (South Australia) Bill 2008 National Gas Law--Schedule Part 4--Access arrangements 26--Current access arrangements (other than old scheme limited access arrangements) Subject to this Part, on the commencement day-- 5 (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, 10 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 15 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. 20 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 25 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 30 (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. 35 (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 40 the Gas Code--a full access arrangement approved by the AER under a full access arrangement decision; HA GP 177-A OPC 169 211

 


 

National Gas (South Australia) Bill 2008 Schedule--National Gas Law (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. 5 (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. 10 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 15 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 20 (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. 25 (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 30 decision under section 2.41, of the Gas Code--a full access 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 35 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 40 to a decision of the relevant Regulator under the Gas Code were a reference to a full access arrangement decision of the AER. 212 HA GP 177-A OPC 169

 


 

National Gas (South Australia) Bill 2008 National Gas Law--Schedule 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 5 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 10 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. 15 (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 20 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. 25 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 30 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-- 35 (i) on disallowing a variation proposed by a service provider; or (ii) because a service provider fails to submit such a variation as required. (2) In this clause-- new scheme revisions commencement date means the date revisions 40 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; HA GP 177-A OPC 169 213

 


 

National Gas (South Australia) Bill 2008 Schedule--National Gas Law 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 5 (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 10 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 15 (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. 20 (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 25 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 30 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 35 the Gas Code), and in effect immediately before that day, is deemed to be queuing requirements. 214 HA GP 177-A OPC 169

 


 

National Gas (South Australia) Bill 2008 National Gas Law--Schedule 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 5 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 10 commencement day; and (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 15 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 20 (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 25 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 30 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 35 the day it is made. HA GP 177-A OPC 169 215

 


 

National Gas (South Australia) Bill 2008 Schedule--National Gas Law Part 6--Structural and operational separation (ring fencing) 38--Definitions In this Part-- 5 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 10 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 15 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 20 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. 39--Compliance with certain old scheme ring fencing requirements 25 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. 30 (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 35 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 40 Chapter 4 Part 2 of this Law (as the case requires). 216 HA GP 177-A OPC 169

 


 

National Gas (South Australia) Bill 2008 National Gas Law--Schedule 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 5 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 10 with an obligation under section 4.1(h) and (i) 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 140 given to that service provider. (3) Subclauses (1) and (2) do not apply to the extent to which a notice referred to 15 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 20 (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 25 (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 30 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 35 arbitrator before the commencement day is deemed to have been done by the dispute resolution body; and (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 40 dispute; and HA GP 177-A OPC 169 217

 


 

National Gas (South Australia) Bill 2008 Schedule--National Gas Law (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-- 5 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 10 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 15 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 20 commencement day; and (b) has not been completed by the relevant Regulator before the commencement day. 44--AER may conduct investigations into breaches or possible breaches of Gas Pipelines Access Law not investigated by a relevant 25 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 30 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 35 (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. 218 HA GP 177-A OPC 169

 


 

National Gas (South Australia) Bill 2008 National Gas Law--Schedule (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 5 reference to the AER; and (b) regulation 5 of, and Schedule 2 to, the Gas Pipelines Access (South Australia) Regulations 1999 were not revoked. Part 9--Associate contracts 46--Pending associate contract approvals that are approved after 10 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 15 (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 20 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 25 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 30 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. 35 (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. HA GP 177-A OPC 169 219

 


 

National Gas (South Australia) Bill 2008 Schedule--National Gas Law (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, 5 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 10 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. 15 (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, 20 the proposed associate contract to which the determination relates is deemed to be, on the day the determination takes effect, an approved associate contract. 48--Approved associate contracts (1) On the commencement day, an associate contract (within the meaning of 25 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. 30 (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, 35 is deemed to be an approved associate contract. 220 HA GP 177-A OPC 169

 


 

National Gas (South Australia) Bill 2008 National Gas Law--Schedule 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 5 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 10 (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). (2) On the commencement day-- 15 (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. 20 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 25 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 30 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 35 participant determination applying to an old scheme covered pipeline is deemed to be an initial classification decision (within the meaning of section 98(1)). HA GP 177-A OPC 169 221

 


 

National Gas (South Australia) Bill 2008 Schedule--National Gas Law (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 5 (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. 222 HA GP 177-A OPC 169

 


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